The State of the Constitution: Is the Constitution Still Working for America?
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The State of the Constitution: Is the Constitution Still Working for America?

September 18, 2019


>>Good evening.
I’m David Ferriero, the Archivist of the United States and it’s a pleasure to welcome you
to the McGowan Theatre here at the National Archives on this 227th anniversary of the
signing of the United States Constitution. [Applause]
Also I want to welcome those of you who are joining us on YouTube. Tonight we’ll engage
in a conversation about the state of the constitution, is the constitution still working for America?
A panel of experts will explore the relevancy of the constitution and look at court cases
and proposals to amend the constitution as well. The program tonight is presented in
partnership with the Robert H. Smith Center for the Constitution at James Madison Montpelier
in Virginia about 30 miles north of Charlottesville. This is our 50th year of partnership with
the Center hosting the annual Claude Moore Lecture.
On behalf of the archives I would like to thank the President and Chief Executive Officer
of Montpelier Foundation, the Executive Vice President and Chief Operating Officer, and
the Executive Vice President for Advancement, and Doug Smith, Montpelier Vice President
for the Robert H. Smith Center for the Constitution. Before we go any further I would like to tell
you about two upcoming programs here in the McGowan Theatre. Next Tuesday, September 23rd
at 7:00 p.m. We’ll present the Tribute Program by presenting the Oscar nominated documentary
of D-Day Invasion in Normandy in World War II narrated by David McCullough. The screening
will be introduced by the invasion of Europe in the D-Day landing. Thursday, September
25th we’ll present the film Freedom: The story of the African American Americans who fought
in World War II and continue back home on American soil.
Following the screening, there will be a discussion, including Frank Smith, Jr., director of the
American Civil War Museum. The program is presented in partnership with the caucus legislative.
You can learn about the programs and exhibits and calendar of events in the lobby and sign-up
sheets where you can receive them in the mail, regular mail or by email.
And you’ll also find brochures about other National Archives programs. Another way to
get involved with the National Archives is become a member of the Foundation for the
National Archives. The foundation supports education outreach activities and there are
application forms also in the lobby. No one has ever been turned down for membership
in the foundation. [Laughter] The constitution of the United States has
endured for 227 years with very few changes. Amended only 27 times and one amendment repealed
another, the two dealing with prohibition. Other amendments have been proposed and could
not get the approval of three quarters of the states for edification. One of them, the
27th and the newest was proposed in 1789, the bill of rights but not approved by three
quarters of the states until 1992. More than 202 years later. It requires that any increase
in the salary of members of Congress not take place until a new House of Representatives
is elected. The original constitution, in case you need
to be reminded, is in an airtight state-of-the-art encasement in the rotunda upstairs, and I
invite you all to come back during regular museum hours and take a look if you haven’t.
This morning we did a naturalization ceremony, about 35 new American citizens standing in
front of the constitution. Now on with our program. Doug Smith is vice
president of overseeing the Robert H. Smith Center for the Constitution. Doug is the former
CEO and president of the Virginia Interfaith Center where he led the creation of one of
the most state-based policy centers in the country. He’s the former chairman of the board
of Hyper International and a fellow for political leadership at the University of Virginia.
To introduce our distinguished panel, please welcome Doug Smith.
[Applause]>>Douglas Smith: Good evening. We’re off
this week. Especially today, Constitution Day, communities across the country have been
celebrating this charter of freedom, the U.S. Constitution, and we are so pleased to be
here with the National Archives for what is one of the nation’s capstone events for Constitution
Day. We are so pleased to have this partnership in so many years now, five years in, and we
look forward to continuing that for many years to come. I want to welcome you to the McGowan
Theatre at the National Archives and welcome those who are joining us on the web, we are
being live-streamed this evening. There should be ample conversation towards the end of our
program and when we get to that point, I will encourage you to bring questions for the panels.
Let me encourage you to go directly to the microphones on each side of the theatre, where
you’ll have a chance to ask questions of the panel.
So please join me in inviting our distinguished panel this evening, the honorable Robert Hurt,
representing the fifth district of the house of representatives, a member of the financial
services committee, on the housing and insurance subcommittee.
[Applause] Akhil Reed Amar of the law school at Yale,
I call him America’s favorite con law professor. Akhil, welcome.
[Applause] And Ben Wittes, dear friend from the Brookings
Institution and the law fair log, Ben, welcome to the stage.
[Applause] Okay, gentlemen, the question for the night.
Is the constitution still working for the United States? Is it still working for the
people? Let me start with you.
>>Thank you, and let me, first of all, thank the National Archives for hosting this tonight.
What a fantastic opportunity. [Applause]
For those watching on the web, I certainly would encourage anybody — I imagine everybody
here has been at the National Archives before, but those who haven’t, obviously you need
to come and see these documents and so much more that is here, but I want to thank the
archives and then I want to thank the Robert H. Smith Center for the Constitution, Shawn
and Cat and Doug for the information to be here and what you all do to promote the Constitution,
the understanding of that, and finally I want to certainly thank fellow panelists, I’m delighted
to be here with you all and thank each of you for coming on this important day and many
of you, I believe, are from Virginia’s Fifth District, my home district and especially
delighted that you’re here. But with all that said, I would say unapologetically
and resounding yes, yes, I think the Constitution is viable, and I think the Constitution is
viable because the principles that it is founded upon and I think that James Madison, as we
know, from you ever visit Montpelier, read your history, you know that the principle
discussion we’re founded on, freedom, liberty, individual liberty, the idea that we have
the checks and balances built into our Constitution, all those things are as important today as
they were in 1787, as they were in 1776 when we had the Declaration of Independence signed,
so I believe that it is viable and I guess you say, how do you judge? Well, it’s hard
to do. I would say this, I would agree and I would imagine anybody who is an observer
of what takes place in Washington would say, well, the Constitution may not be viable,
but certainly — I mean, may be viable, but certainly the people in charge of interpreting
it and in charge of following is often have a hard time. I would agree with that 100%.
And I think that that is true, but I think when you go out the countryside, when I got
out of law school, I was a prosecutor in a small town where I live, a courthouse town
in Southside, Virginia, and after studying law and studying the Constitution in law school,
which was a fantastic opportunity and a fantastic education, to be able to come back and to
go to Pennsylvania County General District Court on Monday morning, that is where the
rubber meets the road when it comes to the importance of our freedoms. Fourth Amendment
issues, they come up every single day in General District Court? Why, Officer, did you stop
this car? Why did you arrest this person? Did you have probable cause? Did you have
a reasonable suspicion to stop them? It all comes from the Constitution and we often take
it for granted, but those things are argued and those protections are employed every day
and I think about, you know, who is in charge of policing that? Well, judges are. Lawyers
are. The police. The police spend a tremendous amount of time learning what the law is in
a civilized society. Isn’t that wonderful? Isn’t that kind of what it’s all about?
And then I’ll just wind up by saying this. I think also, you know, a lot about the fact
that first of all, we have many women who go across the world to defend this and are
willing to die for our Constitution and the principles they represent. I think that’s
an indication of viability. But I would say, finally, oftentimes when I vote on the house
floor I’ll come off the east front of the capital and come down, especially summertime,
come down the steps and it’s totally filled with people traveled from every town, every
county, every state in this country to come see this capital. As dysfunctional as it often
seems. You have people from probably every country in the world that have come to visit
this country and oftentimes you’re out there and I don’t understand anything that they’re
talking about because they’re speaking in foreign languages. Why are they here? Are
they here because of the beautiful building? It’s a beautiful building, but they’re not
here for that. They’re for the principles contained and documents in this building.
And that to me, I think also signifies our Constitution is alive and well. There are
things I think we can all do better, but I believe it’s viable.
[Applause]>>And these are phenomenal comments. You’re
a lawyer, you serve as state legislator, now you’re in Congress. I think your perspective
is great. We’re going to come back to that. Before we do that, let me bring Akhil Amar
in here, professor at Yale. Akhil, you’re watching the cases coming down from the Roberts
Court and moving their way up to the judiciary, to the Supreme Court, whether the court chooses
to hear those cases or not. What are some of the most important cases that should be
on our radar today that serve as a little of a litmus test or flashpoint about the conversation
about today’s Constitution?>>Akhil Reed Amar: Thanks. I want to echo
your very thoughtful words. We’re very grateful to be here. Thank you for coming and thanks
to the Archives. Some of the most important dogs are the ones that don’t bark Sherlock
Holmes tells us. The biggest thing the Supreme Court did was actually not invalidate a major
piece of legislation Obamacare, very controversial, people have different views. Judicial review,
my teacher Charles Brock reminded us, it’s not to write something down, it’s to validate.
Because the court can strike it down, if it doesn’t, and if people on the court, after
looking carefully at the issue say this is okay, that achieves a certain legitimization
in a country where there’s disagreement. So all honor to John Roberts. He’s a Republican,
Republican appointee and he voted to uphold this. That was a big one. So big that we forget
what didn’t happen, which is the fundamental legitimization of Obamacare. Another dog that
might not bark. Whether you like it or not, gay marriage is coming to a theatre near you
everywhere, very soon, whether the Supreme Court gets into the act or not, because stuff
is happening, bottom-up, even Virginia is changing. Just even in the last year, lots
of stuff going on there. So this might have drop, this ripe fruit, even without a Supreme
Court intervention, because ours is a society in which people can advocate for new rights
and amendments talk about new rights, rights of the people. Not all of them are given to
us from on high from judges. Some of them are in the bottom-up. So some of the biggest
things that might happen are dogs that don’t bark. We say one final thing because I can’t
resist on the broader question about whether the Constitution is working. Just take one
step back, because I know times are tough for lots of folks, but take a step back. 227
years ago, basically none of the world was Democrat. Almost the only Democratic project
going in the world. On September 17th, 1787, there’s us to some extent Switzerland and
that’s it. That’s it. Half the planet is Democratic on the American model, with written constitutions
and multiple parties and free and fair elections and religious toleration and free speech and
minority rights and the rule of law, Europe and India, across half the planet the last
century, I like our odds for this one, it’s on the American model. We are winning. We
are winning. And part of what we need, actually, is the rest of the country comes closer to
us. That’s what success means, when they actually — when the world is becoming American, and
America is becoming more global. And we have our problems, but by the way, so does everyone
else around the world and I still basically think that we remain the indispensable nation
we weren’t. We had an idea, but we — the military political economic cultural legal
success of the United States Constitution is basically one of the biggest facts of the
last 227 years. [Applause]
>>Douglas Smith: Well, Ben, I think I’ll throw down the gauntlet a little bit. Ben
with the Brookings Institution. You are intimately familiar with national security issues and
governance. What do you think about what Akhil is saying here? Do we have the tools to maintain
ourselves as a 21st century super-power?>>Benjamin Wittes: Would you take a yes and
no? [chuckles]
So first of all, I’m actually not going to echo all the thanks, only because I don’t
want to take up time. So consider them incorporated by reference. There is a very distinguished
line of thought, perhaps most encapsulated by Richard Posner, that the Constitution is
not adequate to contemporary national security challenges, and Judge Posner I think said
it in an interview with me actually, and the line is…the Constitution is old. Old and
short. And this is actually, I think, a deep insight and a deep challenge. So if you look
at — has anybody here actually read the Maastricht Treaty, closest thing the EU has to a Constitution.
But there’s a reason — let the record reflect no hands went up. There’s a reason for that.
And if I ask this audience, can anybody here quote a single line from it, I’m going to
get the same answer. And the answer is because the Maastricht treaty is new and long. And
it actually reads — if you spend any time with it, it’s turgid. It reads more like the
code of federal regulations than like the U.S. Constitution, and you can’t actually
find in it anything that resembles what you would call a principle. It’s a set of — this
isn’t a criticism of it. It’s actualy just an observation. It resembles — it is a list
of agreements and working operational structures for an existing set of states to cooperate.
The Constitution doesn’t read like that. By the way, where it does, those are the parts
we don’t remember. So people, you know, like everybody remembers the First Amendment. People
don’t tend to focus on the Seventh Amendment. And the reason is that the Seventh Amendment
creates civil trial by jury if controversy exceeds 20 bucks, right? And there’s something
not so timeless about a non-inflation adjusted, you know, dollar figure. What we remember
about the Constitution is that — and the reason it remains viable over these very,
very long periods of time is that it creates rules of commission and restraint and that
it creates structures for Democratic qualities to make decisions and assign accountability
for those decisions. Now, in the immediate post-9/11 period, I think Judge Posner’s observation
was a very plausible one that, hey, you know, we’re flying scary flying robots and killing
people with them. There’s no scary flying robots of the Constitution, right? The only
thing the Constitution has to say about surveillance is that it should be reasonable or that it
should not be unreasonable, and that you generally need a warrant except when you don’t.
[Laughter] It says that Congress has the power to declare
war, but by the way, the president also has — the commander in chief, they’re these very
sort of broad and very non-specific ideas. Congress has the power to make rules of capture
on land and sea. You say, well, that’s a really — what does that mean? A letter of mark and
reprisal clause, right? These general ideas, and there’s nothing like a specific code of
regulations. And you say, going forward, where we’re going to have scary flying robots, all
be carrying around cell phones that are communicating with each other constantly, and all of this
communications are interceptable. All the data that that phone generates is interceptable.
We don’t have humans turning into cyborgs clause in the Constitution either. So you
have all these problems that we face as a result of developing technology, as a result
of globalization, as a result of really scary people around the world. There’s no really
scary people around the world clause of the Constitution either. And sort of when can
you not follow the normal rules because there are these guys beheading people in, you know,
Iraq, right? There’s no guys beheading people in Iraq clause
in the Constitution. So I think it’s a very plausible hypothesis that the constitution
didn’t address enough issues to be viable for the problems that we face. So that’s the
bad news. And the good news is, I think, Judge Posner is wrong. And I think you can look
and say, the Constitution doesn’t provide specific answers to very many questions, actually.
That’s not what it’s for. It’s there to constitute a government that then within certain bounds
has a lot of flexibility to address those questions.
And it creates accountability mechanisms. So right now as we speak, there is this fervent
debate going on between the executive branch and the legislative branch over who has the
— whether the president has the authority to go after ISO — ISIS, IS, whatever you
want to call it, and what role Congress should or shouldn’t play, needs to play, must play
in authorizing what the president wants to do. Why are they having that conversation?
The military would follow the president’s orders if Congress said nothing on the subject,
and the answer is, because the Constitution sets up these modes of accountable decision
making and we have so internalized them that they inspect everything we do in the national
security space even when we’re not aware of what — that they’re doing it. So one further
example and then I’ll shut up. A year and a half ago Edward Snowden releases information
about the most secret agency in the United States. What happened since then? The judiciary
has taken on a large number of cases for challenging the propriety under both statutory and constitutional
law of lots of the programs that Snowden revealed. The executive branch has unilaterally revised
a bunch of policies, changed — asked Congress for legislative changes to impose restraints
and change certain programs, and Congress — both houses of Congress have really spent
a lot of time thinking about what parts of these programs they want to authorize, what
parts they want to curtail and what parts they don’t want to address at all. These are
all — none of these events had to happen. They are all reflections of a system of — a
set of accountability mechanisms that are endemic to system and that’s despite the fact
that there’s no, you know, bulk meta-data collection clause of the Constitution. So,
Robert, you know, Ben makes an interesting point here. Earlier today your colleague Senator
Tim cane suggested — I think he’s fought in some legislation that you may have had
a chance to briefly look at, but essentially repeal and replace some early 2,000 authorizations
for war. Now, Tim cane, who was in Virginia one of the first supporters of Barack Obama,
often whispered he might be within the Obama administration, but head of the DNC for a
time. But what does it mean someone like Tim cane is actually asking to constrain the powers
of President Obama? Is this adjustment because of expanded executive, that a lot of people
have been talking about?>>I can’t speak for Senator Cain. I have
worked with him when I was in state legislature and have enjoyed working with him since he’s
been here in Washington. I will say that I believe this is something that has interested
him before he ever came to the United States. He and Senator McCain have worked on the War
Powers Act, the issue of the war powers issue together, and I couldn’t agree with him more.
I think absolutely under these circumstances, that the president needs to get authorization
from Congress before he acts, and I hope that he will. I think that if you look at the Constitution
and you look at the War Powers Act, which I think the White House doesn’t necessarily
recognize, I think you see that clearly the intent is that Congress has to make those
decisions. Why? Because at the end of the day, these decisions affect each and every
American citizen. And I think if you look back at the experience of not just our soldiers,
obviously, who are putting themselves in harm’s way, but every American citizen. The taxpayer
has to pay for it. These are things that should be debated in a candid, honest way with the
American people and being able to provide input along the way. That’s what the whole
purpose of Article I and the Congress is, is to be a representative for the people.
Now, in my mind, I don’t think that — I think that we want our president, especially because
of the technological — I mean, war is different in 2014 than it was in 1787, to be sure, but
— and with that said, clearly the president needs to have the flexibility to do what we
needs to do to defend our interests wherever at a moment’s notice, but at some point it
seems to me that it is extremely important for him to get that authorization. I think,
and I would be interested in the panel’s opinion on this, I mean, I believe that the earlier
Iraq resolution does not cover it. I don’t think that it does. And there’s a course in
Mr. Cain’s, his resolution deals with this resolution of the — you know, what does it
mean to be associated with Al-Qaida? Does ISIS, does that meet that definition? I would
be interested to know your opinion on that, but I don’t think it does cover it. But even
if the earlier resolution does give him the authority to go back into Iraq, a different
Iraq, a different group, given the — given the power to go into Syria, because these
are somehow associated, I think that he has a moral obligation to come to the American
people and make his case in Congress, and I feel very strongly about it.
>>Douglas Smith: Guys, do you want to hop in here.
>>Robert Hurt: I want to praise Senator Cain for his leadership on that.
>>I’m not a particular big fan of the war powers resolution. I don’t think it’s drafted
so well. Marty Leaderman has interesting posts trying to make the case that operation of
the military force would permit what is going on, but I agree with you that even if it does,
I think it’s very healthy to have the first branch of government, the branch mentioned
first in the Constitution, the branch closest to the people, the branch elected most frequently
by the people, so closest in time to the last election weigh in on this thing and so I think
that’s wonderful and healthy. What did Ben say earlier? He said so much about the Constitution
you just take for granted. Here is an amazing thing we take for granted. We hold elections
every two years hell or high water. They don’t that other places, even great places, say,
Great Britain, which may be in the middle of a recession right now. We’re not having
that… [chuckles]
But from 1935 to 1945 there was no parliamentary election whatever. People didn’t vote for
Winston Churchill, I was a shuffling of musical chairs within the government there was no
general parliamentary election. They just postponed election. We don’t do that even
in the middle of civil wars. There’s going to be an election. I think it’s wonderful
that the people’s representatives are debating this, and even if there is formal power that
the president has, I think it’s not well used, if Congress is not on board on this. Those
things generally don’t end well. One final, the problems we face, you know, again, from
some perspective, and we’ve got lots of challenges around the world, remind you, 200 years ago
this week, you know, this place burned to the ground. And so one big question is, is
this a threat to the homeland? Is this over there, is it somewhere in between? But I welcome
this great congressional debate, which is connected to a great debate among the citizenry,
which is called the November election, and we hold them, and that’s not to be taken for
granted, but because the Constitution — you don’t even think, oh, wow, that’s interesting.
They’re going to hold an election in November.>>Benjamin Wittes: I’m in a slightly awkward
position here because I actually consulted with Senator Cain about the legislation he
introduced today, and I’m a little bit awkwardly position to address it. A few thoughts. Number
one, I have been one of the people and I have taken a lot of criticism over the last several
years for being generally supportive of the administration’s vision of what it means to
be an associated force without Al-Qaida covered by the 2001AUMF.
I and my co-bloggers who have taken that view were all shocked by the proposition that you
could conduct a major campaign over a protracted period of time against ISL on the basis of
the 2001. I have this as someone who energetically defended prior claims that, for example, AQAP,
Shabab, various entities in the AfPak region were plausibly understood as associated forces.
I find the administration contention here very difficult to defend and I won’t defend
it. So that’s — you know, I think if you want — the idea that you would have a sustained
military campaign without a congressional authorization here is, I think, troubling
and disturbing and it’s an interesting thing that we don’t talk about it in the language
of, you know, shock at executive power that we would talk about it, say, if this were
Dick Cheney. [Applause]
>>Benjamin Wittes: There is, actually, you know, it’s an interesting sort of hypocrisy
in our political system that the most extravagant unilateral overseas war powers claims actually
aren’t made by the people who have the broadest theoretical understanding of war powers, right?
So the great overseas military adventures of the Bush administration are very specifically
congressionally authorized. This one is not. The Libya one was not. The Kosovo one in the
Clinton administration was not. And I think we have a way of letting the people who, in
fact, believe in less robust assertions of executive authority in the war powers arena
get away with making, in fact, much broader ones in this particular space than we do the
people who are actually advocates of broad executive power. I want to say one word about
Senator Cain in this. He and I, there are a lot of things that we are not from similar
political space about. His attention to this issue is a model of the way legislators ought
to behave, and he has been deeply personally engaged with — at a very granular level with
the details of what Congress should and shouldn’t be doing, at the level of statutory language,
at the level of, you know — at a theoretical level and at an operational level, what specific
activities do you and don’t you want to be authorizing, and the quality of the thought
that has gone into some of the work that he has done, you know, we often sit around — and
I do it myself you know, you look at the quality of leadership that this country had at the
time of the drafting of the Constitution, and the first few generations, and you say,
certainly the poll data reflects that, when Congress has a 6 or 9% approval rating, and
on a good day, 13 or 14%, right? People aren’t sitting around with enormous admiration for
their leadership, and, you know, the president has a 40% approval rating, which is very low,
of course, for a president, but it’s dramatically higher than his interlocutors in most of these
conversations, and, you know, I have — and this debate over ISIL and authorization is
one not shrouded, either the legislative and executive branch in glory. The executive branch
is basically saying, you know — well, first of all the president said a year ago, we need
to move to end the war and repeal the AUMF and then turns around and has an extravagant
view of what it incorporates, and Congress’s institutional posture is just don’t make us
vote before the election. Which is hardly an attractive posture.
That said, there are people who are doing the work that you would want legislators to
do in the fashion that you would want legislators to do them and I — you know, we became legislators
— the Cain proposal, you may disagree with parts of it or agree with parts of it. It’s
not the bill I would have written if I had been a senator. There’s a lot of good thought
in it.>>Douglas Smith: Ben, you run up the polling
— I don’t think we want to govern by polls, certainly, but Congress is at 14% approval
rating, which is 5% higher than last year at this time.
[Applause] I think it’s fair to say there’s a general
feeling that things are broken. Nothing is getting done in Washington. So I wonder, is
that really the truth or is that just the span of media organizations or maybe this
is how the system is constructed in the first place. I wonder if any of you would be willing
to comment on that? After Congressman Hurt.
>>Robert Hurt: I think that certainly people are not pleased, as one person quipped to
me recently, I would like to know who is 14%. If they are they won’t admit it. But certainly
Congress deserves the reputation that it’s got. No question about that. It is interesting,
though, just to put things in perspective. When we have the elections in November, you
know, I would imagine even though Congress is at 14% approval rating or whatever it is,
most of them are going to come back. Most will get reelected and everybody hates Congress,
but they love their — except for their Congressman, and that’s sort of exclamative, I think.
I’ll say a couple of things. I think, first of all, politics, because of the media scrutiny,
certainly the partisan nature of politics, the money involved in the campaigning, you
know, it’s a nasty business. It can be nasty. And we don’t like that it’s nasty, but I think
that it certainly very hard from that standpoint and I can tell you coming from Richmond — and,
of course, I’ve known you since I was in Richmond — coming from that perspective where, frankly,
most of the issues that we ever worked on in committee, on the floor, we had robust
open unlimited debate, unlimited opportunity to be part of the conversation. Things were
closed rule. Your bill was heard by committee whether the chairman wanted it heard or not
it might have been 7:30 in the morning and three people show up and promptly killed,
but there was — to legislate is a verb. Here it’s quite different. I guess I would say
that I think — I don’t think that the Constitution is broken. I think that the people that are
supposed to follow it don’t do it the way they’re supposed to, and I think that we see
the result of that. I do think that our founders absolutely wanted the legislative process
to be hard. There’s no question. It needs to be hard, if you look at the path a bill
has got to take. And I think they wanted it to be hard. There’s no question about it,
because it protects, ultimately, the individual citizen. I think they would argue. I think
that’s for sure. So I think they did want it to be hard. I would also point out this.
It’s so great that we’re all here celebrating the Constitution on — what was it, 227, 227th
birthday of the Constitution and out of everybody here we would all say we love the Constitution,
we’re glad to be here to celebrate the birthday of the Constitution, but think back 1787 when
it was adopted. It wasn’t everybody. Was it 39 of the 55 delegates actually signed it.
So there was a tremendous acrimony at the time and think about the Virginia debates
where Patrick Henry debated James Madison in Richmond as to whether or not Virginia
should ratify this Constitution. It was a horrendous fight between Patrick Henry and
James Madison, the anti-federalist versus the federalists. I think it was 87-78 — 89-79.
That was not — it’s remarkable we’re here talking about how great the Constitution was
because about half the people back then thought it was a terrible — in Virginia, thought
it was a terrible idea. So I say, you know, sometimes we need to take things in stride
when we see all of the acrimony, because I think our constitution —
>>Not just in Virginia, but 30-27 in New York and it was very close in Massachusetts
and New Hampshire. Now, here — and Congress deserves today, a bunch of blame, but here
is another truth. Members of Congress may not tell you this because you’ll just hate
them more, even though it’s true. [chuckles]
The people deserve some of the blame. Here is duality. American people are deeply and
closely divided, so that’s why one house of Congress is controlled by one party and another
house by another party. And so we’re not doing anything, but, okay, but we’re not going in
the wrong direction. Now you take a parliamentary system. You asked me a question about whether
the system is broke. The last election did someone vote to let Scotland go? I didn’t
see that — I didn’t get a majority for anything. The fact there are three different parties
and no one got a majority, and after the election there is just like a bunch of horse trading.
You have no idea in that system whether the election will get a coalition of national
unity between the Tory and labor in the middle or a left coalition of liberal labor or what
we end up getting, which is kind of weird, liberal and conservative. So parliamentary
system they can do all sorts of stuff and they don’t really have a mandate. And soft
election, not that many people show up. So ours is a system in which it’s kind of hard
do stuff in the people aren’t for you and we sample them in these different ways, six
years in the senate, two years for the house, four years for the presidency. Sometimes it’s
state-wide, sometimes national because there’s no one perfect way of counting votes. But
part of the problem — and you can’t blame Congress. Part is we are deeply divided country
on a bunch of things and our government is to that extent sort of still a reflection
of the citizenry more generally. And they’re not going to quite say that because, you know,
if they did say it’s your fault, you’re going to blame them a little bit more, but I’m not
running for anything, but an academic, as a political scientist, I think Congress is
plenty to blame, executive branch, but some is money. Here is why money so powerful, because
you all aren’t paying attention. Ads actually influence. No difference to me because I actually
know what I believe in and — I’m a Democrat. The more Mitt Romney spends, the less I like
him. And Linda McClain, she ran for the senate, she spent time and money — I’m delighted
she pumped all this money in economy and still vote against her. That actually is the ultimate
campaign reform. So it’s partly because ordinary people aren’t paying attention. Because if
they were paying more attention, all those ads actually wouldn’t have much of an effect
because you would know what you really think. So let’s blame them a little bit, but the
truth you have to hold
a mirror up to ourselves, truthfully. [Applause]
>>Never take the blame for that.>>Stole my thunder on that. I was going to
make the point that the people suck. [Laughter]
I’ll actually amplify it only by pointing out that one institution that we don’t hold
public confidence in is the public. And you know, — I don’t know how you would design
a poll, but to do that, but if you believe that all of these institutions, which is,
you know, the ultimate proposition of the Constitution, right, that sovereignty is popular,
and that these institutions that we poll, our — you know, we poll our confidence in
their performance, are exercised and delegated sovereignty from the people. It seems like
it’s a valuable question whether we have confidence in one another as voters, as decision makers,
as electors, and I’ve never seen a poll that tries to do that, and I’m confident that the
answer is that the people would probably do better than Congress but less well than the
president.>>So in a moment we’re going to take questions.
If you have questions for the panel, I would encourage you to go to the microphones on
the side of the room. Before we do that, and as you’re lining up, let me ask you this.
So 50 years out, what are the changes that you see on the horizon, either through case
law or structural changes to the Constitution itself, that we really need to think about
making as a people in order to stay relevant, to keep it viable and to make sure it’s still
working?>>So I think that one of the greatest challenges
we face goes to the heart of the approval rate we’re talking about, and that really
is that Congress over the last 10, 15, 20 years, for a long period of time, I think,
has been giving its power. We know how the Constitution sets out the separation of power
between Article I, Article II, and Article III, and I feel like over the last couple
decades we have seen an increasing move from having what I would call legislative activity
migrating from Article I to Article II. Why has that happened? Well, first of all, Democrat
and Republican presidents over the years want to accumulate that power. Because it’s easier.
It’s easier to operate if you don’t have to go through all those people that nobody likes
over at the capitol. And you might ask, well, why in the world would Congress give up that
authority? Why would they be so willing to give it up? Well, I think it’s — well, you
know, we have an election in November, right? And I think it’s amazing, because we — those
of us who are members of Congress who work so hard to get elected, we ask for the job,
and work very hard to get it, and then so often when members of Congress come to-and
senators, I want to make sure we’re talking about everybody, but when the elected officials
come to Washington and you want them to vote on something, you can’t find them. They don’t
want to vote. They don’t want to be held accountable. It’s just a lot easier to let the administration
to do that or let the executive agency, EPA or FDA, let them take care of the business.
Again, going back to my time as a state legislator in the Virginia General Assembly in Richmond,
one of the things that I loved about — I was on the courts of justice committee, sort
of the judiciary committee of the House of Representatives, and we would all be sitting
up there, I think probably 20 of us, not 60, but 20 sitting, 18 probably, and any member
of the public could address the committee during the process of working through a bill.
The bill is called up and goes through the process and any member of the public could
address the committee and look at the chairman, speak to him, speak to her. That’s pretty
powerful. You imagine that happening in the committee room in Washington, D.C? Where any
member of — an individual citizen comes up and is able to have that platform. And so
— and so I say all that just to say that when you have a constituent come up to you
as a member of Congress and complain about something taking place, it’s easier to say,
oh, you know, you need to contact somebody at the EPA about this. I didn’t do that. Well,
that’s a problem. I think that what we’ve seen, if you go up and down the Constitution
and independence you know, look at the massive monuments — I call them monuments to bureaucracy
and power that have been built in this town and you think about the tremendous resources,
the private sector and those who want to lobby their government. They spend. Not to lobby
members of Congress. But to lobby executive agencies to get what they want. You think
about that, and I think that you see readily that on this course kick fear that that executive
— and it filtrates through the issues that you-all have talked about, especially as it
relates to the war powers issues. But I think that’s something that we have to rein in,
and I don’t know what the answer is. I think that our Constitution is durable. But going
back to what I think Akhil said, at the end of the day, we as the American people, I think
have to think about this and think about how we change that in terms of who we send and
what we expect them to do and that we don’t want to live — you know, why was our country
founded? It was founded for a lot of different reasons, but certainly an over-bearing monarch
was one of them. If not the main reason. And you look at what we have today. You look at
who makes the decisions. Well, those are interesting to think about, and a little scary. When I
think 50 years out, I fear that if we keep on this getting the balance between the Article
I powers and Article II powers, when we let that get too far out of whack, I think at
the end of the day we’re all — and it should not be a Republican issue or a Democrat issue.
It should concern everyone, that that is getting out of whack and, you know, what are the consequences
having to fix it?>>We should have mentioned earlier that congressman
Robert Hurt actually sits in the seat of James Madison, the Fifth District of Virginia.
[Applause]>>It’s been downhill since.
>>He was a — I ask the audience a question? Who can tell me — so in 1789, the first election
for Virginia’s Fifth District, and regrettably Montpelier is out of the Fifth District, but
it was then, and so Patrick Henry drew this district, there’s no way James Madison could
have gotten elected because of all the anti-federalists, and he did anyway. But does anybody know who
he ran against? I guess we — James Monroe. Which is pretty — it’s truly
remarkable and wonderful thing to think about it.Thank you.
Doug.>>I would just say — I don’t know if it’s
the next 50 years or a number of years, two huge challenges both related to technology.
We used to have an understood compromise about surveillance and the last year and a half
has shown that we no longer have that understanding, that the basic contours of the compromise
with the government can vacuum up everything it can get as long as it’s outside the United
States. Inside the United States if it wants to conduct surveillance against somebody it
needs warrant. I think the last few years of debate has shown both for technological
reasons and the enculturation of technology and pervasive everyday life of the average
person, those distinctions are no longer stable and we don’t believe in them any more on a
consistent basis and the question is, what replaces them?
Some of that is going to be constitutional law that answers that question, and I don’t
know whether that’s going to be in the long run in the form of
, you know, case law or in the form of some form of constitutional amendment or probably
at the more — what you might — what the other countries called basic law, which is
statutory law that is so firmly entrenched in our consciousness that it requires an almost
constitutional level. But these are areas that whether you think about them as fundamentally
surveillance issues or fundamentally privacy issues, they’re issues that we’ve opened up
a huge fissure in society that is wider, not narrower, and I think the Constitution has
to adapt one way or another. The next is issue specific, which is government takes too long
now. And the question is, how do you have a legislative and regulatory processes that
operate at the speed of — with enough speed to be relevant given the case of technological
development? And these are — I quite agree that the Constitution was designed for the
legislative process to be hard and that means slow. But we have run into a point in which
we have all these issues whereby the time you reach any kind of legislative consensus
the point is moot. And that problem is getting worse and worse and worse across a wider and
wider array of — range of areas, and just the structural question of how do you, without
undermining deliberation, speed things up and make governance operate at the speed of
the society that it’s governing is going to be a very, very difficult question over the
next few decades.>>227 years ago the framers created an audacious
continental democracy, the likes that had never been seen in world history. Democracy
had existed only in some city-states, but what was basically being proposed was nothing
less than world government tore a new world, for a continent separated by vast motes from
the regime, from the Old World. We took seriously that and project things forward. You have
to think, our children have to think about regional and global systems of government.
Because actually problems and opportunities exist on a global scale, where they talked
about pandemic viruses or international terrorism or nuclear proliferation or climate change,
and so if you — and thinking about these regional intercontinental, even global issues
of Constitutionism, maybe the only project going 227 years ago, now half the planet is
Democratic on an American model, so that is what the next 50 years, that will be a serious
conversation. Domestically, here are the three rules. Prescriptive and descriptive that I
put forth for Constitution amendments. Add to liberty and equality, not detract. All
the amendments thus far except prohibition have done that prohibition was not a great
success. Slide burning amendments, make it a criminal thing, restricting first amendment
freedoms, not a great idea. I don’t think restricting the first amendment in the name
of campaign finance reform is such a great idea either. So amendments should add to liberty
and equality. One man, one woman. Marriage, that restricts liberty and equality, I don’t
think that’s a great idea. Amendments should add to liberty and equality, not take away.
That’s what we’ve done thus far. Amendments have to be support bid both parties. You can’t
get two-thirds of the house, senate unless both parts are on board. State versus to road
test all these ideas. Every single thing in the constitution versus, states first, Massachusetts,
vote first, they said three branches of government. They said bicameral legislatures. Bills of
rights, got rid of slavery, women vote first, blacks vote first. So states are going to
road test these ideas. What would pass these descriptive and prescriptive test well, you
could imagine direct election of the presidency, because that’s actually an equality idea.
All the states have mini presidents. We call them governors. And in states you have electoral
college, first and one vote. I could imagine both parties supporting this because actually
the Republicans increasingly, I understand, the electoral disfavors them going forward
and the Democrats like one person one vote, equality idea. That could happen. People who
were not born under the flag can be governors in the states. Arnold Schwarzenegger, Jen
Fergram. You come here, you want a fence, big fence, electrified fence. You want a big
fence, fine. What else? You come here and actually play by the rules. You came here
legally and contribute for 30 years. You should be eligible to be president. Propose that
ten years ago and still believes in it. He just can’t say it yet, but eventually he’ll
be able to say it because it’s in the Republican party’s interest to have an alternative for
that. States have formal ERAs, no discrimination on the grounds of sex. I think it would be
nice to have that in our federal Constitution. It’s already there implicitly. Say it again
this time with feeling. States are giving us a gay marriage and sometimes in state constitutions,
and I could imagine, actually, that being — because both parties eventually are going
to find it in their interest to do it as to liberty and equality. States are doing these
things first. Those are the three principles and those are both descripted and prescriptive.
[Applause]>>So why don’t we take some questions. We’ll
start over on this side. Please introduce yourself, let us know who you are.
>>I’m Ellie Pugh and do you think that the Constitution will ever be completely rewritten?
And how far in the future it will happen?>>Can I say something to Ellie. I met you
at the reception and you said you were nine and a half years old. I think I came for the
very first time to this building when I was nine and a half years old. And it changed
my life, this building, the National Archives.>>Thank you, David, for that. Have your parents
give you a dollar bill. They’ll do it. And on the back you see there’s this pyramid.
And it’s unfinished. I think American’s Constitution project will keep going. It says it’s a more
perfect, but I don’t think we’ll get there. We’re always building. I don’t know if we’ll
actually rewrite the whole thing. We added amendments to the end. James Madison called
it a careless written letter, so many post scripts. PS and PSS. Most states when there’s
an amendment, they rewrite the main text, but here we say, oh, another thing, oh, and
another thing. We just add them. I’m not sure we’re going rewrite it. We haven’t done that
since Philadelphia 227 years ago, but we’re going to add a bunch of amendments, and the
pyramid will keep growing and growing and growing. I don’t think we’ll ever get there.
I don’t think it will ever be perfect. But I do think that your generation is going to
have a lot to say. You have to figure out what you want to put on top of the next layer
of that pyramid. Do you know — can you tell us what the preamble of the Constitution says?
Do you know what –>>We the people of the United States of America…
um… .>>Very good start. That’s like half of the
constitution right there. [Applause]
>>So “we the people of the United States.” We do ordain and establish. That began 227
years ago. But here is one little piece of this that was written actually just for you.
Just to secure the blessings of liberty for ourselves and our posterity. They were thinking
about later generations and thinking about you. You have, I think, obligations to them
to try to make the Constitution even better for your children still unborn, and that is
actually the challenge of your generation. That’s what I believe.
[Applause]>>Give her the dollar bill.
[Laughter]>>Yes, pending in the U.S. District Court
is an action to enforce portion and penalty of the second section of the 14th amendment
to reduce the representation of representatives in Congress in states that award the electors
on a winner take all basis that is not grounded in state law in former considered states,
North Carolina, South Carolina, Georgia, and Alabama. Why is this provision — well, this
is to correct the 15th amendment, which is working for the Caucasian but is not working
for the non-Caucasian. And we can correct that by voicing — enforcing that vision of
the Constitution that we championed by the abolitionists that from confederate states
to disenfranchise the former slaves by reducing their representation, not allowing them to
sit in Congress until they granted that franchise to those of African descent before the 15th
amendment was even in the Constitution. Why is it that progressive organizations are not
trying to enforce this provision of the Constitution Gordon versus the clerk of the house of representatives.
>>One of the most interesting things about the written Constitution is that it endures
— they’re dormant. They’re not enforced for long stretches of time. And life’s sleeping
beauty, Rip Van Winkle, they have the ability to reawaken and be re-energized. When I went
to law school people would scoff about the Tenth Amendment, punch line to a joke. But
it was in the Constitution. You know, and so always have the possibility of being reinvigorated
and I think has been legally and politically. Fifteen years ago not many people thought
the Second Amendment was much of anything, very little case law about it, but in the
written Constitution, and has this capacity to reawaken. There are still clauses for long
portions of time, the 14th amendment, even section 1 wasn’t really enforced and then
the Warren Court came along. Part of the Constitution the Republican form of government hasn’t been
very robustly, judiciously enforced. A lawsuit right now in Colorado, actually, trying to
make it more enforceable. Section 2 hasn’t been enforced for the 14th amendment, conventionally
thought for a long time. We actually have the world expert on section 4 of the amendment
here. It’s not yours truly, a student of mine who wrote it, a brilliant paper on this. He’s
sitting right next to him. Tom Schmidt, raise your hand. He wrote a great paper. Raise your
hand, Tom. You can talk to him afterwards, because he wrote a clause on this dormant
portion and you can talk to him about what happened to that clause.
>>Invite me to Yale and make a presentation and interact with him.
>>Well, Tom is now at Columbia.>>Thank you. I’m Leonard Overlander, and
I would like to hear some views on whether or not two seminal factors are helping to
make the Constitution work or not. One is from the Supreme Court, the statements that
Supreme Court justices decisions will be made, including personal conscience. Someone said
I will not make a decision without my personal — or without a matter of conscience. The
second is whether Supreme Court decisions should be made on the basis of international
court decisions, which is something that was never — neither of these was ever, as far
as I could see, mentioned in any of the papers that was circulated to the people when the
Constitution was written or even very long after that, until this particular decade.
Thank you.>>I’m not an expert in the Supreme Court
and I’ll defer to my colleagues for their answers, but I will say this. Certainly on
the first question, that in this — part of why the Constitution has — is so important
and why, I think, the marriage of our constitutional Republican form of government, the marriage
of that to a free market economy has been so successful is because of the rule of law,
because of private property rights. Those are the things that have made this country
so successful over the last 200 plus years, have made this country so prosperous and wealthy.
And so I think it’s important to point that out. The reason I say that is, I believe that
judges must follow the law. They must follow the law. And when they fail to do so, they
— I think they jeopardize our entire constitutional system. And if they find themselves in a place
where their personal conscience is at odds with following the law, then they need to
step down from office. They shouldn’t be allowed — they shouldn’t allow themselves to have
that. [Applause]
>>You know, this has been a subject of a very heartfelt debate over a fairly protracted
period of time between just Scalia and Pryor, they talked about it actually, I think, in
public, and I think sniped at each other in written opinions as well. And I think, you
know, and with all respect to Justice Scalia’s view, everything from the opinions of academics
in well review and non-law reviews — law reviews are edited by students, right? So
if you say, is it a — it is indisputably to nine justices of the Supreme Court would
accept that sit a legitimate non-binding source of law to cite an opinion that binds the lower
federal courts, the Congress and the president, the opinion of a single scholar edited by
students at a different university.>>Is that how they can too?
>>That’s a legitimate person as well. But the considered view of a foreign tribunal
that has confronted a very similar issue on — under a legal system that may be very similar
to ours is not sort of a verboten source of law and I think that’s got to be wrong. With
that said, if you look at the issues that Scalia is complains about, they have a certain
merit to them and the issue arose because in a series of 8th amendment cases, there
was a tendency in deciding whether something was cruel and unusual to look around the world
and find all the courts that had agreed with you everywhere and say, look, there’s a consensus.
You know, 25 states have banned this, and a lot of polls say it’s banned and by the
way the Supreme Court of south Africa said the following. And there’s something very
mischievous about that as a an interpretive methodology. And so for what it’s worth, my
view is that Scalia’s argument has a lot of merit in the specific context in which he
raised it, but he prop — the proposition he draws from it is that it’s uninteresting
and irrelevant to all discussions of how we should understand U.S. law, how other tribunals
have considered similar questions elsewhere has got to be sort of an overbroad way to
think about it.>>I’m in the unfortunate position to draw
our panel to a close, but let me say, on Constitution day, 227 years later, I think what you reminded
us is that the conversation continues throughout the country. And as you suggested, Ben, the
conversation is happening globally as well. So I don’t think we could do this tonight
without reminding ourselves, because it’s come up a couple of times. Some friends of
ours in Scotland go to the polls in just a few hours and I just wondered very quickly
before Cat closes this out, up or down, how is it going to go? Are we better together?
>>Are you asking for a normative view or a projection?
>>I would love the prediction. How do you think it’s going to go tomorrow for the Scots?
>>I think it’s looking bad for unity. As much as I hate to say that. People are in
a sour mood all around the world, but I think that would be unfortunate.
>>I agree it would be unfortunate.>>I would think it would be a tragedy, but
it does look like from all the ports, it certainly seems to be headed that way. We shall see.
>>We shall see. Gentlemen, thank you very much.
[Applause]>>So I am indeed Cat Emhoff and the president
and CEO of the Montpelier foundation, home to the Robert H. Smith Center for the Constitution.
This has been a wonderful evening. I want to thank our co-host here, actually, David,
the National Archives, just a wonderful event. We love doing this with you, and of course
can Claude Moore Charitable Foundation has been our supporter and our panel. It was a
brilliant evening all the way around. Thank you, especially to my colleague Doug Smith.
[Applause] Akhil, Robert, Ben, you have challenged us
mightily and I think we have learned we are a work in progress. We cannot end this evening
without a quote from James Madison who noted that the Constitution ought to be regarded
as the work of many heads and many hands, and I would say, of course, our charter of
freedom continues and all of our heads, all of our hands. This is indeed happy Constitution
Day. Come visit us at James Madison Montpelier. Be safe and participatory.
Thank you very much. [Applause] 1

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