The Oath and The Office: A Guide to the Constitution for Future Presidents
Articles Blog

The Oath and The Office: A Guide to the Constitution for Future Presidents

October 10, 2019


(alerting tones) – I’m Grant Reeher, I’m Director of the Campbell
Public Affairs Institute, which is the institute that
coordinates the speaker series. My Maxwell, Campbell, and
political science colleague, Professor Elizabeth Cohen, will have more to say about
Professor Brettschneider in just a minute. What I’ll just note, as an introduction, is that, in this series, we strive, with some of our lectures,
to engage perennial topics. And then with other lectures, to engage pressing current issues. And I think with Professor
Corey Brettschneider’s talk about presidential power and authority, we have succeeded at both of
those things at the same time. I wanna thank Elizabeth
for thinking of Corey and for organizing his
visit with us here today. And I also wanna thank the Dean’s office for supporting this series. Dean Van Slyke very much wanted
to be here this afternoon but another university obligation is, unfortunately, claiming him. And I also want to
thank today and as well, is the Maxwell School’s Advisory Board. They’ve been visiting with
us the past couple days. I know that a couple
of them have been able to join us here so, it’s
good to see you here. Let me just make a few
reminders before I turn it over to Professor Cohen. First, if you haven’t already done so, please silence your smartphones. Second, there is, as is always in our State of Democracy Series, a healthy amount of time for
audience questions and comments and I want to ask you,
as we always do, to wait. If you have a question, raise your hand, wait to be recognized by Professor Cohen and for the microphone
to be passed to you. And the reason for this
is not only so that everybody else can hear you, but that we’re live-streaming the event and so we want everybody else to be able to hear you as well. And then, of course, after
you’re done posing your question, give the microphone back so that we can hear the next question. And then, finally, I just wanna remind you that following the talk
we’re gonna have a reception out in the foyer where
there will be refreshments and we can continue the
conversation that we start here. Professor Brettschneider
will also be there to sign his book which we have available. So, having said all that, let me turn it over now to
Professor Elizabeth Cohen. (attendees applauding) – I would like to thank all of the, Can you hear me? I would like to thank all of
the people that Grant thanked and also what I would like to thank Grant who’s incredibly supportive
of SU and the Center and all the events that I’ve wanted to do and I mean I really appreciate that. So, in about 2008, I decided that I wanted to be friends
with Corey Brettschneider and, at the time, he was a
relatively junior faculty member. I think you’d only been teaching at Brown political science
department for a few years. But, at that point, the book,
based on his dissertation, Democratic Rights: The
Substance of Self Government, had been published and people were starting to pay attention. He also had a prestigious fellowship at the Safra Center at Harvard and he finished a PhD at Princeton and a law degree at Stanford. So I wanted to meet this guy. And, so, in order to do that, I accepted an invitation to a symposium on Civil Rights and Citizenship
at Drexel University that he also agreed to participate in. It really was not very good timing for me but I figured it would be worth it because I would get to be in a dialog with this supersmart person
that so many of us respect. So I flew down to Philadelphia
in a horrible rainstorm. I got there, and just as
we were about to start I learned that Professor
Brettschneider could not make it. And I was like, oh, so he’s that kind. (Corey laughing) I knew his CV was too good to be true. He bailed on us. And I was really mad. Fast forward a few years I was on sabbatical in New York and a mutual friend who
I’d gone to college with and who teaches at the Fordham Law School with Professor Brettschneider, suggested that we all get together to talk law and philosophy. By then, Professor
Brettschneider had published several case books and his
second book on political theory When the State Speaks, What Should it Say? It was getting a a lot of
well-deserved accolades. I don’t exactly remember
what kind of plan we made for getting together, but since then, we’ve built up a many years’ tradition of extremely, long,
thought-provoking lunches and never once has Corey bailed. And it turns out, I may
have rushed to a slightly premature judgment back
in 2008 ’cause he’s been a really stalwart friend
and sounding board. So not only has Corey been a reliable and reliably insightful
interlocutor through the years, he’s also become a vociferous advocate of breaking down the barriers which was the academic work
that we were trained to do and the advocacy work that
almost everyone agrees is urgently needed in these
polarized and fraught times. Is the risk here more than one might think if one exists outside of academia but Professor Brettschneider has been a model of the public scholar that we all follow. And I am following the model. He’s published op eds on
Supreme Court nominees, the travel ban, abortion
rights and many more topics in places like The New
York Times, Time Magazine, The Washington Post and Politico. And he worked feverishly last year to write the book that we
are here to talk about today. The Oath and the Office
could only have been written by a scholar of the kind of erudition and breadth of knowledge that Corey Brettschneider possesses. But because Professor
Brettschneider is also an extraordinary person, this
book can be read by anyone. It is clear and compelling and anyone who does
read it, will come away armed with a very keen understanding of that which one must accomplish to be what the Constitution
and its framers and its interpreters consider
to be a good president. Once we know that, we, as voters, are armed to make better choices. I’m not gonna get into
the substance of the book because that’s what he’s going to do. But I’ll just say that
it is both a good read and offers insights that you won’t get from just reading commentary on blogs and then scrolling
through Twitter threads. So, I think it’s about time
for some of that insight. Please join me in welcoming Professor
Corey Brettschneider to Syracuse and to the Maxwell School. (attendees applauding) – Thank you for that kind introduction. I’m not sure what the excuse
was for missing that event but I’m sure that it was good. Welcome, it’s a pleasure to be here and to see many familiar faces. Let me just begin by observing something. Some of you are young enough to believe that at some point, you
could actually become president of the United States. And that is unlikely, of course. The odds are against
it, but it’s possible. I went to school with somebody who was sitting in a room like this, who’s now a U.S. Senator. It’s possible. Senator Brian Schatz from Hawaii, at some point, maybe he will be president. If you would have asked me at the time, can that guy be pres, I would have said, no way. So that’s the reality. What do you need to know to be president? Okay, most of you will not be president. Probably all of you. But you will vote for a president. And that also, I think, is
beginning to frame our question. What is it that you need to
know to vote for a president? The motivation to run
is probably familiar. If you’re thinking about it. It might be the White House and the glory. Air Force One, all of these things that come with the power of the job. The glory, the power. But when you actually
look at the requirements for what a president does, in
Article II of the Constitution which lays out the duties
and powers of the office right after Article I, of course, lays out the powers of Congress, Article II, the powers of the president. And in Article II, there is
a very specific requirement of literally your first second in office. And that’s that you recite the specific words of the oath of office. Here they are. I don’t wanna try to do it from memory. I do solemnly swear, or
you also have the option of saying affirm, that I
will faithfully execute the office of the president
of the United States and will, to the best of my ability, preserve, protect and defend the Constitution of the United States. That is written out for you in Article II, exactly as you must say it if you’re gonna take the
oath to become the president. And what it does, is it defines the job. The job is not about glory. The job is about the requirements and limits of the office. And the fact that it lays out these words that you have to say,
symbolically, at least, conveys the idea that this isn’t a office, it isn’t a job where you can do whatever you want. It’s one prescribed by
the powers of Article II, which grants you some
powers, but also limits it. And that limits it, the
power of what you can do by other provisions of the Constitution. Article I, for instance, Congress’s powers limit what you can do. Article III, certainly, the judiciary, which might stop you if you do it wrong. And the Bill of Rights. We’ll be talking about all of those things that you would need to know if you wanna either be a president or vote for one. It was conveyed, I think, to me, the meaning of what the office is about, best by George Washington in
the second inaugural address, by far the shortest inaugural address. It’s so short. A hundred and 35, just a few hundred words that I’m gonna read you most of it. This is what Washington said
in the second inaugural. He said, “Previous to the execution “of any official act of the president “the Constitution requires
an oath of office. “This oath I am now about to
take, and in your presence: “That if it shall be found
during my administration “of the Government, that I
have in any instance violated “willingly or knowingly
the injunctions thereof, “I may (besides incurring
constitutional punishment) “be subject to the
upbraidings of all those “who are now witness of the
present solemn ceremony.” In other words, Washington used
the second inaugural address to say to the people in front of him, if I don’t abide by the oath, if I ignore the duty to preserve, protect and defend the Constitution, then you’ve gotta do two things. One is, this upbraidings, criticize me, and the other thing is,
subject me, George Washington, to constitutional punishment. Can you imagine a
president now doing this? Well, what it was doing was
putting front and center, not the person, not George
Washington, the man, but the idea that there was an obligation that came with this oath that was taken, so much so, that what he was
asking for, was criticism. Think of how much that contrasts from the way that we tend
to think about the office. That the authority comes from the people to do whatever you campaigned
on, and how different from many of the motivations
that I mentioned. I’ll just pause for a second. When I was about nine years old, I got very interested in politics and I was in a parade,
walking behind who, to me, was my political hero, Mayor Edward Koch, who many of you remember. And my dad worked for a local politician and so I got to walk in
this parade on Queens Day, the biggest, if you were from Queens, this was a big deal event
that took place in the summer. It was very hot. And I was walking behind him. He was throwing his arms
to the side and saying, “How am I doin’?” And, repeatedly, the crowds were roaring and I was sorta under
him watching all of this. It was very hot. I felt like, wow, this is brutal. But looking up, age
nine, I heard him whisper to the politician next to him, “You know, I’d really like
some ice cream, vanilla.” And the politician turned back to the aide who was walking next to me, and he said, “Get the
mayor some ice cream.” This guy ran across Flushing
Meadow Park, sprinting, to get the mayor some ice cream. He came back with the vanilla ice cream and somehow he managed
to keep it on the cone, handed it to the mayor and
the mayor finished the parade eating this vanilla ice cream. And I thought to myself, man, not only would I like some ice cream, but what I’d really like is to be mayor. (attendees laughing) The power. The ability to get a grown person to run and get you some ice cream at will. I mean, at nine, that, you know, that seemed pretty good. But what Washington is doing is saying, look, maybe some people, in the future, and I don’t think he’s
just speaking to the members of Congress that
were assembled before him, he’s speaking to future presidents, he’s saying, even if
that’s your motivation for getting interested in politics, is the ice cream or the
glory or whatever it is, that’s not what the office is about. The office is about a
constitutionally-prescribed duty. And not only that, but it’s a duty that, if you fail to abide by
it, there is going to be what he called constitutional punishment. Now, as I said, that
speech, the inaugural, was given to members of Congress. It came at a time when
presidential speech, as the terrific author who
I recommend to all of you of The Rhetorical Presidency,
Jeffrey Tulis, points out, when presidential speech was often framed to members of Congress, a more modest presidency, that
changes in the 20th century. And it changes in particular
with Teddy Roosevelt, but also, fundamentally,
with Woodrow Wilson, who changes the notion of the presidency by really giving it a
different constitutional ideal, moving away from Article II. By the way, it wasn’t that he didn’t know about the Constitution. He had taught constitutional
law at Princeton and knew the Constitution
as well as anyone. But he had a vision. The president needed to be stronger and needed to be able to
appeal directly to the people using the creation of the
bully pulpit to rally support, but also constitutionally,
to derive his authority from the people directly. The election, rather than
the Constitution, he thought, had given him the ability to be, and this was his term, a leader. And I think he thought
people like Washington were just too modest in their understanding of Article II’s
limits on the presidency. Now what that did, that vision, was, expand the presidency, certainly,
and create informal power, one of the most important
powers that a president has, that’s not listed in the Constitution but it’s one that we need
to, in the present moment, pay very serious attention to. And that, of course, is the bully pulpit, the ability of speech. It’s only expanded since Wilson’s time. Think of Twitter. The idea of the bully
pulpit is that you can rally the population, which
will then rally the press, which will then rally Congress
to pass laws that you need. And now, a president,
especially in the current era, doesn’t need to appeal to the press. Twitter is direct. By the time the press
finds out about a tweet, it could be retweeted hundreds
of thousands of times, maybe even millions, by the time they are able to
write an article out about it. The powers only increase. Now Wilson’s vision of the bully pulpit and it’s expanded presidency, I wanna suggest, had a
very serious problem, and I’ll say what I think that was. Wilson relied on a
segregationalist constituency for his election and he is quoted, not just mentioned, but quoted at length, in the film, Birth of a Nation, a celebration of the Ku Klux Klan. Wilson, far from distancing
himself from the film, or disowning the remark,
shows it in the White House and, really, celebrates the film. So the president who really
does more than anyone to create the bully pulpit,
doesn’t hide from racism, but, in a way, if you think about that, uses the bully pulpit to defend it. Now, I mention the Ku Klux
Klan because it starts to show, I mean, there is no group
more obviously opposed to constitutional values, I
contend, than the Ku Klux Klan. How do I know that? Because they say that. They’re founding idea is in opposition to the requirement, in
the Fourteenth Amendment, of equal protection of the laws and their desire to deny
that equal protection to people based on race. I’m not making that up. We don’t have to argue about it. That’s what they say. So Wilson’s celebrating the Klan, it’s not just a bad thing. It actually expresses a
hostility, I would say, to constitutional values. Now, it’s not that Wilson was unaware of the equal protection clause. As I said, he was a
constitutional law professor, at a top university. But from the beginning, the bully pulpit is used in this way. One of the duties of the oath, I mean George Washington
couldn’t imagine anything, of course, like Twitter
or the bully pulpit even, but one of the things that we get by reflecting on what he says, is that idea that even this
expanded power of rhetoric, which is not gonna go anywhere, I’m not gonna say we should
have no bully pulpit, Twitter should just disappear, but, what should come with it, is a recognition that the
oath has to be respected, that the speech has to be in defense of constitutional
values, not against them. Now, that comes with a
other requirement, I think, as we move through the Constitution. That a president also has to
respect rights of free speech. Early in the Republic, the
Alien and Sedition Acts are passed and in that Early Republic, the following thing happens. The Federalist Party who’s
in charge of Congress and the federalist president, signs a law that, essentially says, that it is illegal to criticize the president of the United States. They outlaw that ability. Now, one thing that’s interesting about the way the acts are crafted, is that it is allowable and legal to criticize the vice president. Now why would they have
set it up that way? The vice president, at the
time, Adams, of course, is a federalist. The vice president is a member of the Democratic-Republican
Party, Jefferson. And it is a partisan piece of legislation, allowing for criticism of
one party but not another. And, the legislation is used to go after critics of the president. So newspaper editors in the
Jeffersonian kind of newspapers are imprisoned and even
a sitting congressperson, Matthew Lyon in Vermont, is imprisoned, despite the speech and
debate clause of the Article I and despite
the protection of the newly-passed right to free
speech and the Bill of Rights. In the modern era, I think it’s clear that the right to free speech includes the right to state any opinion, especially certainly criticizing
a president is part of it. But how can a modern president respect the right to free speech but also defend, as I
said, using the oath, constitutional values? Certainly Adams’ way of
doing it is prohibited. And this modern incarnation, I think, does give a way for the president to not ban free speech, but to express through the bully pulpit,
constitutional ideals. I’ll give you a couple of examples. These are not what Wilson did. This is the opposite. George Bush, after 9/11,
made the following statement. He said, “Islam is a religion of peace,” in order to quell anti-muslim sentiment that was brewing up in the country. And why did he say that? To try to say, if you are Muslim, you have, under our Constitution, an equal right to
participate in our politics. Certainly our free exercise
clause protects it. Certainly our requirement that there be no
establishment of religion. And that simple defense
of Islam as having a place as an equal-standing religion
in our constitutional system, in our polity, was a way
of using the bully pulpit, not to attack constitutional
values, as Wilson did, but to defend them. Think of another instance. I think you find good and
bad and, regardless of party. President Obama, at one point,
does the following thing. There is a, many of you
might remember this. There is a Koran being
burned in the west coast in California by an anti-Islamic preacher. And what does President Obama do? He certainly doesn’t, as Adams might of, order the shutdown or the
arrest of this person. He makes a statement, though, not just within the United States, but through the State
Department to the entire world that says what? It says, this person has a right under our free speech clause, to express any opinion
that he or she wants. And, he’s expressing the
modern jurisprudence. This, by the way, is not a hard case. I think it’s clear under our jurisprudence that any opinion, not true threats, not opinion that’s gonna
lead to immediate violence, but any opinion, any
viewpoint, is protected under our First Amendment
in our modern jurisprudence. And what Obama is saying, even though that is the requirement, that I respect that right to free speech, I want you to know that’s not the position of the American government,
that Islam has no place here. So he expands on Bush’s idea that Islam has a place
in the United States, and explains why it is compatible with the idea that citizens
can dissent and have a right, not just to criticize a president, but to any opinion that they wish. Now, that’s hard to combine, the use of the bully
pulpit, the obligation to speak in favor of
constitutional values, but also the requirement in the First Amendment free speech clause, that you not use your power to
try to put people in prison. That’s a view that was
missed by the Early Republic, certainly the federalist president, Adams. And it was also missed by Woodrow Wilson and kind of recaptured
in more recent years by these more modern presidents who are able to reconcile this obligation to speak in favor of constitutional values and the right to protect
all forms of dissent, even from those very same values. Not only to criticize a president, but to criticize the Constitution itself. Sometimes the Supreme Court is gonna provide
guidelines to a president. I don’t think there’s any
question in those instances that it would have been unconstitutional to try to shut down that preacher. Courts, if that would have happened, would have intervened. Certainly, a sedition act,
passed in the modern period, would, without question,
be unconstitutional and struck down by courts. The courts didn’t do so at
the time, but they would now. But there are other
constitutional provisions that are not like that. So let’s take the Eighth
Amendment, for instance. As you know, the First
Amendment protects against the abridgment of free speech. The Eight Amendment bans cruel and unusual punishment. And what about torture? One argument given by several
Justices, famously, actually, Justice Scalia did this on 60 Minutes, is to say that the amendment doesn’t apply to instances of torture because it’s only about
punishment after a conviction. That was Scalia’s argument and think of the word punishment that he’s dealing with here. And so, basically, it was a explanation of why the Court did not and would not use the Eighth Amendment to intervene to stop the extraction of information through waterboarding
and other techniques. But does that mean that a president, him or herself, has no
constitutional obligation to not torture? I think, even if courts don’t stop you, a future president, from torturing, you have to interpret
the amendment for itself. And that means partly
looking to court opinions. We’ve been talking about that. Partly the text, which is
just a fragment banning, nor cruel and unusual punishments imposed. Those are the only words that you get. But you could look to the
history and the principle. And the ban on cruel
and unusual punishment is based in an older British idea that the monarch shouldn’t
be able to subject people to arbitrary punishment
in order to crush them. Not through law courts,
but through a king’s court. And Star Chamber and other techniques that kings of England
used in order to torture in order to get people to submit using very unusual
techniques, for instance, including ear chopping at one point, the British Bill of Rights banned that. So if you, as a president, aren’t gonna be stopped by courts, that’s not the end of the story. You have to think about
what the clause says to you and the guidance that it gives to you. And one thing I think that’s
clear from the history is, it bans the use of violence in order to get people
to submit and be subdued in order to exercise your will, even if it’s for a good cause. Many of these people, by the way, whose ears were cropped, were
involved in insurrection. It wasn’t that there was no reason why the king was concerned about them. And I think that history informs you. Let’s go on. What about the Fourteenth Amendment? One of the areas in which
the president’s power is the strongest is in foreign relations. And there are court cases
that cut, in my opinion, in defense of the constitutional values that we’re defending, great
cases which we’ll talk about, and some that cut the
other way, terrible cases. One of the worst, I think, in addition to Plessy, which said that separate was equal, that
I mentioned earlier, is a case that you might not have heard of called Chae Chan Ping. Chae Chan Ping is about
the Chinese Exclusion Act. It bans anyone from coming into the United States from China or of Chinese origin. There is a person living in San Francisco, a property-owner, who goes to the equivalent of the
passport office at the time, and gets permission to
leave to go home to China. I think that a family member was ill. And, of course, travel
took a lot longer then and plus the affairs had to
be settled back in China, and this person comes
back to the United States, still wanting to go back to his house and reclaim his property. And, at the border, he’s stopped. And he’s actually kept on a ship outside the border of
the United States, why? In the interim, There was no Chinese Exclusion Act when he left and, before
he comes back, it’s passed. He’s told, Chinese people
are not welcome here. He sues to enter the United States, saying that his due process
rights were violated. In the modern era, we would say it’s clear that this looks like a instance of a violation of the equal
protection of the laws. That jurisprudence is not yet developed enough for him to use it, but certainly he would
in a more modern case. And the Court says, basically, sorry. Despite your promises, despite the fact that
you’re a property owner, you don’t have the right to come in. Why, because the president’s
power is plenary, or basically absolute. Or the president’s power in combination,
specifically, with Congress. This wasn’t the president acting alone. It was the president, the administration, using an act of Congress
to empower this exclusion. Now we faced this question more recently in the travel ban case. Donald Trump threatened to
exclude or shut down all Muslim immigration during the campaign. And then, in a variety of
different executive orders, one argument is, carried out that promise. Now they had different iterations. In the earlier iteration,
there was explicit mention of priority for Christian
over Muslim immigrants coming from Syria. But more and more, there was an attempt as Rudy Giuliani put it, to take his Muslim ban and make it legal. Now the Supreme Court,
in Hawaii versus Trump, faced this question. Do we have a principle of equal protection or do we have a principle,
more specifically, that bans discrimination based on religion under the establishment clause
that trumps in this case? Or do we have Chae Chan Ping,
plenary power, absolute, in matters of foreign relations? The Court’s decision is a weird one. Four Justices say what I think, frankly, they should have said
very clearly, which is, you cannot make law based on prejudice. And the evolution from
Plessy versus Ferguson to Brown versus Board of
Ed to cases like Lukumi, stand for the proposition that
you can say whatever you want as a matter of free speech, but when any entity makes
policy, it can’t do so based on religious or
ethnic or racial prejudice. So when the Court struck
down a plebiscite in Colorado that revoked the civil
rights of gay citizens, the Court intervened. When a town in Hialeah,
Florida, passed a law banning the rights of Santería,
to exercise their religion, the Court intervened. In both cases, based on the
statements of the lawmakers. So in the travel ban case,
the statements from Trump, four Justices said, could
not have been clearer. He said he’s going to
ban Muslim immigration and then he did it, end of story. Four Justices disagreed,
led by Justice Roberts. They said, without citing Chae Chan Ping, and that’s telling, they
didn’t wanna do that, but they said that there’s an
extreme amount of deference that has to be paid to the
executive, the president, in matters of foreign relations. They didn’t go so far as Chae Chan Ping as to say, it’s absolute. They said the president’s
action still has to be rational. But if there’s a plausible reason to think that it might not be based on prejudice, even if we’re wrong, we’re gonna defer. Four to four. What about the fifth , who decided it, Justice Kennedy. The person who wrote those
opinions that I mentioned, can’t make an anti-gay
ordinance based on prejudice, can’t make a ordinance
that shuts down Santería, can’t base those ordinances
in religious or racial or ethnic prejudice. He tried to split the difference. He said that they’re both right. He ultimately sided in the
holding with the majority, but he left open the possibility that further evidence might come out that actually it really
was based on prejudice. Where does that leave us? The Court is not the only
source, as these two cases, the last ones that I’ve talked about, the Eight Amendment, the
cruel and unusual clause and the equal protection, is not the only source of thinking about what the Constitution demands of us. The way that we have to figure that out is, ultimately, as citizens for ourselves. That’s why Washington’s
speaking, not just to Congress, but to all of us, by saying, if I do something unconstitutional, not the court is gonna come get me, there really was no
established judicial review at the time of the second inaugural, but you, the people assembled,
stop me, criticize me, say that I violated the oath of office. It’s not about any one institution. It’s about the citizenry. And the only way to hold
a president in check is to call him or her on it when they violate the Constitution. Don’t just trust the institutions. There’s no Constitution police that’s gonna come in and, automatically, every time there’s a
constitutional violation, zap the president on his or her head. These institutions require on citizens to speak up and to criticize a president who disregards the Constitution even if four say one
thing, four say another and one says I’m not really that sure, as happened in the travel ban case. But more significantly, not more, but let’s just increase the level. What do you do, not of one instance, and I’m kind of giving a lot
of one-off examples, cases, what do you do with a president who really fails to heed
the message of the oath, who says the oath but never
internalizes the message, disrespects the Constitution, not at one point, but repeatedly? Washington couldn’t have been so naive as to think that it was
just a little criticism that was going to stop
him if he was that person. And, really, think of
how remarkable that is. The modesty to say,
look, it’s not about me, it’s about the oath. And even if I violate
it, come get me, stop me. Upbraidings are part of it,
and we’ve been talking about criticism and the free speech clause, for instance, protects it. But, again, what do you
do with a president, not in a one-off sense, but who really violates the oath repeatedly? The framers thought about
this kind of person. They called him or her a demagogue. And they created checks. Not balances, but ways to
stop or check a president. I’ll mention three final ones. I’m not gonna talk about them in depth. We could talk about them more
in the question and answer. One, of course, I think you
know what I’ll end with, but the two are less
obvious, much less obvious. The first one is about
the Tenth Amendment, which maybe doesn’t get as
much play as the others. What the Tenth Amendment says is, those powers which are not
granted to the Federal Government are left to the states. Now how does this have to do with a check? Let’s go back to our
story about John Adams who passed that Alien and Sedition Act making it illegal to
criticize the president, but not the vice president
of the United States, this overly partisan, nakedly aggressive tactic early in the Republic’s history. There was no Supreme Court
judicial review power to strike down legislation. Jefferson wasn’t gonna go
to the federalist court and say, hey, your
president is coming after me and please protect me and
declare the law unconstitutional. Marbury versus Madison
hadn’t happened yet. So what was he gonna do? He didn’t have that obvious option that we would all take right now if there was a sedition act. He is a remarkable story. He, the sitting vice
president, Thomas Jefferson, got together with his
good friend from Virginia, a guy called James Madison,
who had, after all, not just taken the notes in
the constitutional Convention, but really played the fundamental
part as much as anyone in drafting the original Constitution, had also played the fundamental part in passing the Bill of Rights. Even though he was
originally opposed to it, he came around and promised to include it, as long as there was a
provision making clear that wasn’t the full list of rights. The two of them get together, they go back to Virginia, and they draft the Virginia and Kentucky Resolutions that say the following things. The Alien and Sedition
Act is unconstitutional and no state needs to comply with it. Now Jefferson and he had a
little bit of a conflict. Jefferson thought about
including the word, nullification in those drafts and
Madison didn’t wanna do it and it was never included. So that word that gets used
in the battle over slavery later on and the battle, in particular, about the tariff, that’s
really a proxy for slavery, that kind of really, horrible
form of states’ rights, is not part of these resolutions. It’s a much subtler form. It respects the supremacy of federal law. But what it says is, that
we don’t have to comply with the Federal Government if they’re asking local
police and sheriffs to lock people up. We’re not gonna do that. Cut to the current moment. Sanctuary cities, which are sometimes
called sanctuary cities, that’s not really a precise
term, but more specifically, a lawsuit that Miguel Márquez, a former, the first Latino judge on
his circuit in California, steps down, becomes the
head of Santa Clara County and with the allies in
San Francisco, says, when ICE tells us, local law enforcement, local agencies in Santa
Clara and San Francisco, that we have to take
people who we’ve arrested or have stopped for things
like traffic violations, if we suspect them of being undocumented, we have to hold them for 48 hours, we’re not gonna do it. And when President Trump
and his executive order says, we’re gonna revoke
all of your federal funds if you don’t do it, he’s wrong. The Tenth Amendment, and they didn’t cite
Madison and Jefferson, but they should have because
they’re in that tradition, says just that. The Rehnquist Court, of course usually thought of as
a conservative court, established a jurisprudence
that says, you can’t commandeer, the Federal Government cannot commandeer a state agency or a local agency. The local government doesn’t
work for the Federal Government even if federal law is supreme. And you can’t threaten through the use of all federal funds. You can’t do coercion through the threat like this executive order
to revoke all federal funds if there’s noncompliance. That’s not allowed. That litigation’s ongoing. Who’s gonna win? The Tenth Amendment defenders
are winning, so far, at the district court level
and then the appellate court. Stay tuned. It’s one of those constitutional battles against the president
that we’re waiting from. Let’s talk about today’s news. I did not plan this, but it is actually unfolding in real time, as
some of you will have read. Manafort is likely cooperating. We’re not exactly sure of the details. Possibly cooperating with Mueller in the investigation connected to Russia. Can you indict, can Mueller
indict a sitting U.S. president? Everybody agrees that after a sitting president leaves office he or she can be indicted. Can you be indicted while in office? Look at the framers. What did they say? Disagreement, sorry, no answer. Hamilton seemed to think
impeachment had to go first and that, while in office, a president probably couldn’t be indicted. James Wilson, a delegate from Pennsylvania thought the opposite,
the Ratifying Convention at Philadelphia, of the
Federal Constitution he seemed to indicate
that, yes, you could, because a president, after
all, is not above the law. There is a memo written in
the Nixon Administration and other one subsequently written by a democrat president,
the Office of Legal Counsel during Clinton, that
says, Hamilton’s right. A president is immune. Why? The dignity of the office requires it. Why? The president is unique in
our constitutional system. He’s not like you or me, or
she is not like you or me. They are the head of the executive branch. If they are distracted, the military, the commander-in-chief power, the power to execute the laws, all of this stuff will get mucked up and the system can’t function. That was Clinton’s
Office of Legal Counsel. But there are two Supreme Court cases, That’s often thought to be Justice Department policy, by the way. Some people think that,
within the Justice Department, at least, the Sessions Justice Department is bound by this memo
from the Clinton era, which reiterates, by the way, a view that was suggested
during the Nixon era. But now I’ll just put
my cards on the table. I think that determining the question of whether or not a U.S.
president can be indicted by a memo written by a mid-level staffer from the Clinton era Justice
Department is a mistake. The case of U.S. v. Nixon,
probably one of the greatest cases ever decided, concerned the question of whether or not Nixon had to answer a subpoena
in a criminal investigation connected to the Watergate break-in. And Nixon’s lawyers argued, much like the Clinton lawyers, that he did not have to
answer that subpoena, didn’t have to, specifically,
turn over the tapes that were requested, or demanded,
by the special prosecutor. Very similar system, by the way, to the system that we have now. And in U.S. v. Nixon, eight-zero, with only Rehnquist recusing himself because he had served in
the Nixon Administration. The Supreme Court said a very
simple, but powerful thing and that’s why I think it’s one of the best
opinions ever decided. They said, a president
is not above the law. No person is above the law. Richard Nixon had famously said, when the president does
it, it’s not illegal. And the Court said, no, sorry, that’s not the way that things work. That principle was repeated in the Clinton versus Jones case, this time against a democratic president, holding that President
Clinton could be subject to a civil lawsuit by Paula Jones. He tried to make the argument about being debilitated, the
importance of the president, being too busy, and the Court
said, we’ll work it out. You have a scheduler. They didn’t quite put it
that way but that’s my way. You know, the scheduling
office, there’s a book about it. It’s incredible. They can like move a nuclear briefcase to like Iceland and, they
can do a lotta stuff. They could figure out how to work with a civil or criminal court. So when you look at it, these arguments, I think, fall apart. The scheduling argument. The dignity argument, I
find, most obviously flawed. And you hear this a lot, that the office is such
that it would be undignified to hold the president accountable. What’s my answer to that? The second inaugural. The difference between
the office and the person. These are not the same thing. That’s what Washington’s telling us. And so the idea that the
dignity goes to the person occupying the office is just wrong. The office is independent of the person. That’s the whole point. That’s why Washington’s
saying, subject me, Washington, to constitutional punishment
if I violate the office, the public role that I’m supposed
to play under Article II. Now I’ll mention, briefly, a final check because I’m anxious to get to
questions and discussion and, These things are hard. The indictment question. This isn’t like an obvious answer. I think some things are
not as hard as that. The Sedition Act is
clearly unconstitutional. This is different. Scholars disagree. We’re in the middle of
a real debate about it. Thankfully, I think the
debate’s changed a little bit. I think about a month
ago, people we’re saying, all scholars think that
the president is immune. And now those of us who
dissent from that view are having more of a voice. But I’m happy to talk about that more. What about impeachment? Quick thing on impeachment. The Hamilton argument that, because a president can be impeached, he can’t be, or she can’t
be indicted, is flawed. You can impeach lots of people. Judges, you can impeach
advisers to the president. All of those people can also be indicted. Nobody argues that they’re
immune from prosecution. So that logic of Hamilton’s, I think, is not the way to think about it. But impeachment is an independent process. It demands a high-crime or misdemeanor. You might think that
sounds just like a crime. It doesn’t. There’s no such thing. You can look through all the law books and talk to your crim law professors. There’s no such thing called a high crime in the criminal law. Misdemeanor doesn’t
mean the modern meaning. It seems to suggest, the evidence suggests a kind of lowering, demeaning the office. What that suggests, that
combined with the process that there is a sort of indictment that happens in the
House of Representatives and then, sort of a trial. I mean, they call it a trial but it happens in the
Senate, not in the law court. It’s a political process
and a political meaning. And I think the meaning of
high crime and misdemeanor is not legalistic. The best person on this is not me. It’s a former slave, Frederick Douglas, who makes the following argument during the Johnson,
first Johnson presidency. Many of those who wanted
to impeach Johnson cited his violation in
firing the Secretary of War and not consulting the
Congress as he was supposed to and not getting permission and just going ahead and doing it. It was a legalistic argument about this legal violation, the firing. What Douglas said was,
that’s not what’s going on. What’s going on is, we have a president who is traveling around
the country giving speeches about the inferiority
of African-Americans, apologizing for slavery
and failing to get onboard, with the demand, after the Civil War, of the Thirteenth Amendment,
that subordination be ended. Not just between government and people, but amongst private citizens. That the institution of
slavery be dismantled, that there not be a legal protection for one person owning another. Johnson was not doing much to enforce the Thirteenth Amendment. He wasn’t a huge fan of it. He was brought on in an attempt to placate those southerners who
were really resistant to the Thirteenth Amendment. And Douglas had a simple point. It’s not about the law
in this narrow sense of this Tenure of Office Act, of the firing of the Secretary of war. It’s about a failure
to live up to the oath to enforce the laws, to faithfully execute the office of the president
of the United States. To do what the law requires. And let’s just say that. Then I’m on board. Impeachment, that’s what
he said in an article in The Atlantic and I think he’s right. When we think about impeachment, it’s not a legalistic question. That’s the realm of courts, of indictment. It is a political decision and not any kind of political decision. I don’t mean a partisan one. I mean it returns us to what Washington was clearly talking about when he said, if I fail
to live up to the oath, subject me to constitutional punishment. He was talking about impeachment. And he wasn’t talking about crimes. He was talking about the oath. Now, that oath is taken every four years. We’re used to hearing it. It’s a ritual. But what I’ve tried to say to you is that the idea of the office and the idea of faithfully
executing the office of the president of the United States are not formalities or abstractions. They’re the core to the whole thing. They’re the job description. It’s not about the ice cream. It’s not about trying to
enjoy being on this great Air Force One, refurbished
or non-refurbished. It’s not about the White House. It’s not about the glory. It’s not about the number
of Twitter followers. It is about a simple thing, laid out in Article II and the oath, but also in the idea of a constitution. That the rule of law is what
constrains us as a people, but also that constrains a president. So thanks for listening. And, I look forward to
the question and answer. (attendees applauding) – Okay, I made two attempts
to keep a mental queue, so if you guys would
just see my waving hands when you’re interested
in asking a question, and wait for one of our
terrific mic bearers to just bring you your microphone. Who wants to start? Yeah, okay, so just
wait for the microphone. – [Paris] Hi, my name’s Paris, political science major. Thank you for coming. Really appreciated your talk.
– Thank you. – My question was in
regards to what you said about the president making
laws based on prejudice. My question was, is, do
you think that, today, in the society, in the
modern age that we’re in now, that it would be possible for
us to vote someone into office that can be trusted to not
make, or sign off on laws based on prejudice,
especially based off of the racially-divided history we have. And if so, why, and if
not, what do you think it would take for us to get to that place? – Yeah, I mean, just to be clear, I think we have a person in office now who is making executive orders, certainly, based on prejudice and I think that the evidence about the travel
bans suggest just that. And, I’m not just saying
that off the cuff. I spent two years of my life arguing that in a brief to the Supreme Court that was cited by the dissent and that was sort of
given an acknowledgment by the fifth , Kennedy, who, unfortunately just failed to act on what
he knew was the right answer. So it is happening. It could happen again. And the doctrine requires that
they do something about it. Now there was one, I don’t know, I’m obviously not happy about
the outcome of the case, but they did say, in that case, a thing that was fundamentally important. And that’s that Korematsu,
the case that allowed domestic people within the United States, Japanese Americans to be rounded up during World War II and
put into internment camps, that that opinion saying
that that was constitutional, was clearly wrong. So, it’s not that there
really are any members of the Supreme Court
that disagree with us. They just failed to act when
it came to foreign relations. And my hope is, certainly
the law is clear, unanimous. And if this were ever to happen again in a domestic situation,
it would be nine-zero and it wouldn’t be allowed. So if a future president tried that, to do what happened during World War II, nine Justices say, we’re gonna act. Now, does that make up for what they did, which was to fail to act
in the travel ban case? Not quite, I mean, it was small comfort. But, you know, the law is
enforced by actual people, including the Supreme Court. So when you watch these hearings, that, maybe, seem boring to some people, that’s what it’s about. Who’s gonna be confirmed? Who’s gonna be that fifth Justice? It’s four-four on the travel ban. So, who’s the fifth? That’s not just up to the president. It’s also up to a Congress that’s supposed to vet that
person and ask him or her. Now, I watched the hearings
as did many of you, and I was, well, I’m in print saying this, but I’m very worried about this nominee, because, when it came to U.S. v. Nixon, he seems to have a lot of opinions. He said, when he worked for Ken Starr, and he was prosecuting a president, that it’s not only good
law, but it applies. The idea that you could
subpoena a sitting president to a grand jury. Then in a round table discussion with a number of academics, on the record, he said, maybe that case, U.S. v. Nixon, is wrongly decided. And, he had worked for a president. He was seemingly changing his view. There were republican
presidents in office. Maybe, when it comes to U.S.
v. Nixon, that was wrong. Now I wrote a piece that was entered into the
record by Senator Coons. Oddly, nominee Judge
Kavanaugh seemed to object on the grounds that I
wasn’t a law professor and you can watch that tape
and it was kind of weird. I am, for the record, teaching
as a visiting professor right now at Fordham Law School, a class on the Constitution
and the presidency. But that’s not really the issue. (attendees laughing) What is the issue is his defense when he was asked about the arguments that I make in the article. And what he said was,
I was being sarcastic because I was responding
to an attack that said that we were too aggressive in
the Starr investigation. Now, I don’t know. I find that suspicious because A, he seemed to be suggesting
around that same time that the Starr investigation might have been
unconstitutional to begin with because, under this
case, Morrison v. Olson, upholding it, that that
was wrongly decided. So that’s one reason why I’m suspicious. The other thing that
makes me suspicious is even when he defended, and he did say, about this case, unlike almost any other, that it was one of the four greatest Supreme Court opinions of all time. Why would he say that? That seems pretty strong. He’s clearly trying to show us that he didn’t think
it was wrongly decided. But every time he stated the holding, he didn’t say anything
like what I said to you when I mentioned the case. He didn’t say a president
is not above the law. He said, and I’ll try
to get it exactly right, “In a case, “in an ongoing criminal trial
about a criminal subpoena “for purposes of information,
a president is not immune.” Now what about a grand
jury, as is the case now? What about not a subpoena for information but a subpoena for an interview? He’s narrowing the case. He’s using a lawyerly trick to try to say, it was a great decision. Why, if you read his Georgetown
article that he cites and says, that’s proof
that I love this decision, it’s all about the
uniqueness of the situation and the exceptions to it. And the instance in which
executive privilege remains. I don’t know. Maybe he was being sarcastic, but, he’s not a fan of the case that I read, which is about the idea that a president is not above the law. So there’s no guarantee. No, nine Justices have
said that principle is law and case law throughout the
20th century supports it. But, in the end, you know, who’s gonna replace Justice Kennedy? Because, at least when it
came to the travel ban case, that fifth vote made all the difference and, you know, that’s your person. So, yeah. – Yeah. Wait for the microphone. – [Attendee] Hi, thank you so much for coming to talk to us today. So my question is, do you believe that the
president can pardon himself? – One thing about the current era, is that the Nixon era looks very tame. I never thought that would happen. (attendees laughing) And I’ll tell you why I say that. Nixon, his office of the
Office of Legal Counsel, The Office of Legal Counsel is an office within the executive branch
that renders decisions about the constitutionality of things that the president might or might not do. Now one thing they wrote an opinion about was whether or not the president, Nixon, could pardon himself. The OLC is not really a,
it’s certainly not a court. It’s not really independent
of the president’s interest. They tend to, even though they’re
not the president’s lawyer in the technical sense, they
tend to be very sympathetic. That Nixon memo says very clearly that a president cannot
pardon him or herself. Why? Because the pardon power
is other-regarding. It’s an act of benign mercy. Hamilton, I think, called
it a benign prerogative. And so the idea that you would use it in the most selfish act,
to protect yourself, they said, sorry, that’s
just a bridge too far. They also said that a
president can’t be a judge in his or her own case. I think that’s part of the point too. But they marshal a lot
of principled arguments, and founding arguments, for
the idea that they’re boss, Richard Nixon, could not pardon himself. So, no, I don’t think so. Now, let me tell you this, So that’s my strong argument for the way that a court should decide. And this comes back to Kavanaugh. How does this actually get figured out? The president is indicted, imagine. They say you can indict
a sitting president as I say you can. And then the president says, oh no, I’m gonna pardon myself
and I’m gonna preemptively get rid of all this,
all the investigation. And who decides? Mueller says you’re indicted. He says, I can pardon myself. Mueller would say back, no
you can’t pardon yourself. That’s a violation of the Nixon argument and that would be Justice
Department policy to argue that. It goes to a court. And eventually it’ll work its
way up to a Supreme Court. Now what’s the vote? Justice Kavanaugh? Does he think that a president can par? I don’t know. He didn’t answer that question. But, I’m suspicious about his
views on presidential power, that he’s serious when
he says, U.S. v. Nixon is rightly decided and one of
the four greatest opinions. I think he thinks it’s
one of the four greatest because of its narrowness. Because it was about this issue of a criminal subpoena for information. I don’t know that he thinks that, But that’s the answer. So I gave you my legal argument. If I was asked about it by a newspaper or asked to write an amicus
brief, that’s what I would say. But, in the end, for real, it’s gonna be a court that decides, including, possibly, the
fifth vote, Justice Kavanaugh. – We have a question over here. – [Attendee] First I wanted
to thank you for coming and I thought a lotta
the things you brought up are incredibly important
in this current age. In Professor Cohen’s class the other day, we were talking about Hobbs and where the government derives
its authority to rule. And a couple times in
your talk, you mentioned that the government derives
its authority from the people, but you also mentioned that it
comes from the Constitution. And so, I was wondering if you thought governmental power
really is more rested in the Constitution or the people? – I do think that, I’m a democrat in a robust sense. I think the power comes from the people. But what does that mean, of course? As you’ve been studying political theory, you see many different ideas of that. And I think there is a vision that, while the current president
of the United States keeps expressing, which is deeply wrong, which is that he was
elected by the people, so he can do whatever he wants. And it’s a insult to the will
of the people to criticize him because that’s a criticism
of the will of the people. Now, one thing that I know for sure is that is not the view of our system. That is a different system. Maybe it’s European populism. Maybe it’s a dictatorship,
and elected dic, But that is not American
constitutionalism. It’s not even close. The American constitutional vision is, that the people have
ratified a set of principles required, not just that
emerged by the people through ratification, but
that are for the people. That’s what Lincoln said. And it was the best explanation
of what democracy is. By the people, for the people. And he added, “of the people.” I’m never really sure what the of part is. But I know what the other two are. They enacted, through
ratification, the document. And the document is not content less. It protects the rights
necessary to enable a democracy, the right of free speech
to criticize a president. The right of religious freedom. Those things are all part of the content of American democracy. And they’re, partly, come
from the ratification, but they’re embedded in the law. And no person’s above it. It is the fundamental law of the land. This sort of, ugh, I don’t know, third grade idea the president can do whatever
he wants ’cause he was elected has nothing to do with
our constitutional system. It gets an F on the grading system of a account of American democracy. – [Attendee] Hi, thank
you again for coming. So my question is about the
media as a watchdog right now and I was wondering, do you
think that they’re doing too little, too much or
just the right amount, and why do you think that? – I mean, you know, it depends. There are some media organizations that are trying to
explain what’s happening. I recommend certainly a
bipartisan website called Lawfare. One problem with Lawfare
is, it’s great in its depth, but it’s pretty complicated. And so breaking down things for people who don’t wanna read law blogs all day, that’s where the gap is. There are people doing it, I think. But, the way that the Trump
presidency has been reported on, on the issues that I’m talking about, the constitutional issues,
it’s almost like a joke, the idea that you would see this, rather than the horse race, as being how a candidate
was vetted by the media. They don’t necessarily know the things that I’m talking about. But yet, it isn’t a joke. It’s the system. It’s the basic job description. And when you’re voting for a president, do you know what Article II says? That’s what matters. Not what was covered, frankly,
during the last election and not the horse race
that you see on television. If you wanna know what I think, I think there are some shining lights, but most of it is a total disgrace and the system requires a
media that informs the public and we don’t have that. – [Attendee] Thank you
very much for coming. I just wanted to ask,
so based on your talk, and how you evoked Washington’s
second inaugural address, I’m understanding that you
think he was greatly dedicated to upholding the Constitution. My question is, which
modern presidents, if any, do you think have done a spectacular job of upholding the oath, and why? And if there are none, why not? – Yeah, I’m pretty critical in the book of many modern presidents and I think it just depends on the area. So, I do think that both, in that moment that I was describing, both President Bush and
Obama rose to the occasion. They did what’s constitutionally
required by the oath in those simple statements
using the bully pulpit. But there are other areas, it is meant to be a guide for the basics of what you need to know to be president. I don’t know that it’s a hundred percent. You should probably know some other stuff besides what’s in the book. But one area that I talk about that really all modern
presidents have deeply failed on are the war powers. The Constitution is very clear. It is Congress that initiates war and the president is
the commander-in-chief. And almost every modern president has basically not thought that to be true. Now one of the problems is that the court has just
abdicated responsibility. There’s a doctrine called the
political question doctrine. So when democrat members of Congress sue a republican president, or when republican members of the Senate sue a democratic president
to stop the president from initiating war without a
declaration or a resolution, the courts tend to say, ah, we’re not really gonna touch this one. It seems to be, work it out on your own. And that’s a problem The War Powers Act didn’t help. It gives the president,
basically, 30 or even 60 days to seek approval from Congress for actions that have already occurred,
war has been initiated. So, that’s a bipartisan problem and I profile a lawyer, a
terrific constitutional lawyer, called Jules Lobel, who’s brought lawsuits both by democratic congressmen
and by republican senators against the opposing party. It’s very hard for him to get anybody that’s not in the opposition to sign on. So that’s a bipartisan I don’t know, you can’t state it too strongly, a bipartisan disaster,
where the Constitution’s, it’s obvious. I don’t think there’s really, very few constitutional law professors think that the president
can initiate a war. It says it. There are these legal tricks
that I could teach you if you wanna try to argue it. They’re sort of making me
smirk when I think about them. So, yes, it’s um, it’s a problem depending on the clause. And then in some instances, you have bipartisan recognition
of the Constitution. I think you can’t do it in the abstract. You’ve gotta go piece by piece. – Yeah, yeah. – [Attendee] Hi, thank you for coming. So my question is, what do you think constitutes a case for impeachment and do you think this applies
to the Trump presidency as of the present? – It’s interesting that, I gave an interview recently. Fordham Law School has a publication and the person only had an
hour before he interviewed me. So he just read the thing on impeachment and, sort of skipped to the end. I think you gotta read the
whole book to see my view because I think impeachment, as I said, is about misdemeaning,
demeaning the office. And so to know what qualifies, you’ve really gotta go
through all these arguments, some of which I’ve touched
on and have mentioned. But, there are also … I might leave it at that. But the impeachment part’s
the conclusion, I think. We’ve gotta first argue about what the duties of the office are. Again, it partly rests on what the Mueller investigation shows. And if there are clear
crimes, willful crimes, that were committed, that
would certainly be part of it. It’s not irrelevant to
the impeachment question. But it’s not the only question. I don’t also know that, imagine that the
president, just to show you how I’m thinking about this. The president, he’s really bored, this is a future president, really bored in the White House and says to the Secret Service, I really wanna go to the grocery store. And (chuckles) as a lark, this
kinda wild, weirdo president sticks a candy bar in his pocket. And he’s walking out and
he didn’t pay for it. Secret Service didn’t pay
for it, and he’s caught. Now that’s a crime. Is that sufficient for impeachment? I probably don’t think so. I think that’s like a weird thing to do and maybe we’d worry about that president and look into other things. So it’s not just a simple legal matter but if the crimes are serious. And then, I also think I’m, as I said, with Frederick Douglas, I don’t think it’s just
about the criminal law. I think it’s about a debate
that the Congress has to have about whether or not, this
president, or any president, has degraded the office. Not just that one moment, not one unconstitutional
proposal, but over and over again. And if that turns out to be true, I don’t think that’s irrelevant and replaced by the criminal question. I think they all go together. So I’ll leave it at that. – [Attendee] Looks like me. – [Attendee] You can go
there, you can go there. – [Attendee] Thanks for coming. I wanted to ask you about the difference between political judgment
and partisan judgment. At the time that Washington spoke, it was before the rise
of political parties. And so, when he appealed to
the citizenry to upbraid him, he could speak about the
citizenry as a whole, and an oath constrains us
to follow the Constitution, and if we all agree with
what the Constitution says, then that’s a real constraint. But if we have a democratic
version of the Constitution and a republican version
of the Constitution, then the oath isn’t much
of a constraint at all. So, Jeffrey Rosen just
had a piece that came out in The Atlantic called Madison’s Nightmare saying that our system
doesn’t work as planned because of the rise of political parties essentially subvert all
the checks and balances. So it’s no longer meaningful to think about states checking
the Federal Government or the branches checking one another because parties reach across
all those institutions and levels of governmental
completely organize public life. So all the judgments are partisan. So, in what sense do you think that there’s some kind
of appeal to the people that doesn’t just break down into democrats versus republicans and in what sense is there such a thing as a constitution as opposed
to way the democrats see it and the way republicans see it? – Yeah, that’s a great question. I guess I would say that
I don’t believe that. I think that the Constitution
is an independent document apart from our partisan beliefs. It doesn’t touch on all partisan issues. We talked about, there was an example, I think, about intervention. Earlier in the day somebody
was asking about some instance where the Constitution
just didn’t have an answer. And I think a lotta things are like that. How high should our taxes be? How much punishment should
grand larceny receive? 18 or 21 years? I don’t think that, I think within the constraints
of the Constitution that’s where partisan politics lies. But what the Constitution
does, is it creates a non-partisan set of
rights and powers and duties that it is up to non-partisan
judges to enforce and up to even partisan presidents, who certainly are gonna
have their policy agenda, regardless of party, to respect. Now, you’d say back, rightly,
and that’s a great challenge, but people disagree about the
meaning of the Constitution. And I tried to say that. The travel ban case, five-four, and my side’s not the winning side. Go through any of these things. There are some, nobody on the Court, but probably some constitutional
scholars who think that Alien and Sedition Acts
aren’t unconstitutional because the original
meaning of free speech didn’t prohibit them and
it was much more limited. But there are disagreements
about everything, and I don’t think I’m deeply, if anything, not a relativist about moral values and I’m definitely not a
relativist about the Constitution. And the fact that people disagree and that they have partisan disagreements doesn’t mean that there’s not
an answer to these questions that’s independent of our own belief. I’ll give you this as sort
of an unfair example, but people disagree. Imagine that there’s a
kind of person in the room who thinks that, when
you jump out a window, you’ll go up, not down. Now, that person might disagree with me, but there’s a matter of fact there. Now, the Constitution’s not like that. There are much deeper and
stronger disagreements and there are arguments on both sides. But I don’t think that
there is a non-answer. And I should say too, in the book, I don’t try to hide
from giving my approach. There is a view of the Constitution responsible for much of
the underlying disagreement in all these issues, called originalism. And there’s a version of originalism that was advanced by the most influential recent Supreme Court
Justice, Justice Scalia. And what he says is, the
meaning of the Constitution has to be provision by provision, according to its original meaning. And that means its semantic meaning or, basically, the dictionary meaning at the time that the
provisions were passed and as the terms would be understood in isolation by the educated public. Now, I don’t think that’s how
you interpret a Constitution. And that disagreement, that
theoretical disagreement, explains why we have
a deeper disagreement. Now why don’t I think that? That’s not how the law works. The law is worked out through precedent. Cases matter, and so I
tried to use, not just original meaning in my
arguments, but also case law. And precedent is supposed
to matter over time. There’s been a direction
in equal protection law and free speech law. Those cases stand for principles
that have legal authority. That’s what lawyers do
before the Supreme Court. They don’t sit there
arguing about dictionaries. They’re not historians. They argue cases. And that practice explains
part of what the law is in a way that Scalia could never explain. And then, finally, there’s a third thing. There’s the text. He’s right. Certainly that matters and in
some cases it’s determinative. But when it’s ambiguous,
you look to the principles as elaborated through the cases. And we also look to, and here, I am with some originalists more than him. Justice Bork, for instance, had this view. You look to the founding ideals, to the principles, to the values. And so I say, in my chapter about how to confirm and nominate
a Supreme Court Justice, that you have to care about, not just the provision, the words, but the values that underlie them. No cruel and unusual punishment. What does that mean? What’s the history? What’s the idea? And so, I just think that this Scalia style of interpretation is so truncated, it’s so recent. It comes from Ed Meese’s office in 1982, the idea that it’s this old-fashioned founding idea is a lie. And it’s wrong. And so, I don’t have a
problem with saying that. – [Attendee] I can just talk loud. – No.
– Okay. – We want our recording–
– All right. Oh, there we are. I’ve been in meetings all day so I really appreciate you sharing the news today
about Paul Manafort. I hadn’t heard that. I heard yesterday there might
be something in the works. So, my question it may be a really silly one
or a simple one which is, if somebody pleads, can they still be pardoned? And if that is the case, does it put the president,
if he were to pardon, in a more awkward position, because of the fact
that the person pleaded as opposed to went
through the court system. – You mean if he pleads guilty. – [Attendee] If he pleads guilty. I mean, presumably a plead is you’re pleading to something,
that you did something wrong. – Yeah. No, I think there I’d say, certainly. The idea of the pardon, it’s this benign
prerogative power of mercy. And so, I think, in a way,
it makes it even easier. Because after, either a conviction, in which case the court’s
made the determination or the acquiescence of
Manafort to the charges, saying, yeah, I did it,
that’s when mercy comes in. It’s mercy for wrongdoing. So, on that one, I wouldn’t
say that there’s somehow a guilty plea exception
to the pardon power. It’s the opposite. It’s that that, that really is what they meant. They didn’t keep the
prerogative of the king in many, many areas. The king could initiate war. The president cannot. But they did keep one, and that’s this benign
prerogative of mercy. And mercy is mercy for a crime
that actually was committed. So, yeah, I think the
president definitely can, Now, in the Manafort
case, it’s not any case. This goes back to the
question about self-pardoning. It’s a case in which the president might be, himself, involved in the crime. So the question of what is self-pardon starts to come up again. Does it include people related to you? Does it include your family? Is that a pardon of yourself to pardon your daughter or
your son, just hypothetically? How about a co-conspirator? It looks like that Nixon logic that says you can’t pardon yourself. There’s a, I would say,
an interesting question about whether or not it extends to self-interest more generally. Now who’s gonna decide that? If Manafort pardons himself
and Mueller wants to object, sorry, if Trump pardons Manafort and Mueller wants to object to the pardon, that’s a constitutional issue. That’ll go to the Supreme Court. – Yes. – [Attendee] Thank you for coming. So I wanna reference The New
York Times anonymous article which talked about White House staffers taking documents off
of the president’s desk to prevent him from making decisions that cold put this country in harm’s way. Is that upholding the values
that Washington sets forth by saying, stop me, criticize
me if I do something that’s unconstitutional?
– Wow. – [Attendee] Or, does that set a risky precedent of White House staffers who haven’t been elected by the electorate making decisions for the country? – Yeah, I don’t think that’s what he had in mind necessarily, (attendees laughing)
but it’s a great question. I guess, here, I can
refer you to the debate and I’ll give you my view at the end. But I don’t wanna pretend that this is, There are people who
especially hold this view called the unitary
executive, which really says, the president’s the boss. The president tells his staff within the executive branch, what to do. And so, this is a violation
of that chain of command. Now, in the book, what I say is, maybe you won’t be surprised by this, but I’m not a defender
of the unitary view. And there are lots of things, in the law, that run contrary to it. One is the Pendleton Act
that protects civil servants within the executive branch
from being fired without cause. The other was the independent counsel law that protected people
investigating the president from being prosecuted. Another is the regulation
within the Department of Justice that technically prevent Mueller from being fired without good cause. There are people out there, defenders of the unitary executive, who think, in the extreme, I
imagine there might be some that think the Pendleton
Act is unconstitutional. There certainly are many who think that any law, any limit on the president firing
Mueller, is unconstitutional. And there are some who think the investigation is,
itself, unconstitutional because, how can a subordinate
tell a superior what to do? Like, hand over a
subpoena, answer questions. So I’m not with that view. I think that civil servants
in the executive branch can be protected by Congress, which has the law-making
ability and the ability to carry out through the
execution of the laws of its will. And that’s what the Pendleton Act does. That’s what a law protecting a special prosecutor would do. And then I would add a
second thing, which is, that Mueller, members
of the executive branch, also take an oath to abide,
to uphold the Constitution. The phrasing is a little different but, basically, they are
committed to the law. So a president who tells them
to just disregard the law, I think that puts them in tension with their ultimate obligation, which is also to the oath and to the Constitution,
more specifically. – Okay, I think there actually
are several more questions but we’re out of time now. And I just wanna say a
few things before we go. First of all, Professor Brettschneider did all of that in an hour and a half with a lot of law and
history without a single note that if you haven’t time to
do it is really, really hard (attendees applauding) That suggests to me you may wanna check out the book. So the second thing I wanna say then is thank you for that. It was really wonderful.
– Thank you. – And third, please join
us for a reception outside. – Thank you all, thank you. (attendees applauding)

Leave a Reply

Your email address will not be published. Required fields are marked *