Were the Framers Right About Constitutional Design? The US Constitution in Comparative Perspective
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Were the Framers Right About Constitutional Design? The US Constitution in Comparative Perspective

August 25, 2019

– [Narrator] This program is presented by University of California Television. Like what you learn? Visit our website, or follow us on Facebook and Twitter to keep up with the latest UCTV programs. (upbeat instrumental music) – Our speaker today is
a graduate of our own. Thomas Ginsburg, he grew up in this area and then did his undergraduate degree, his law degree, and his doctorate in jurisprudence and social policy, all three, at Berkeley. His publications are
listed, and I won’t repeat what’s in the program in that regard, ’cause we wanna give him maximum time, but I’ll just make this remark. Since he left us for this brilliant career that he’s pursued in universities abroad, including in Japan,
University of Illinois, and now at the University of
Chicago in two departments, the law school and the
political science department, he has become one of the
really outstanding experts internationally on the questions of constitutionalism and
political development, and he’s gonna speak on that today. As I started to say, since he left here there’s been a huge interest
in constitution-making and nation-building
since the so-called end of the Cold War of course, and he’s right in the
middle of all the studies that have developed in that area, and has made a great name in that field in collaboration with such
other eminent scholars as our new Dean at the law school, Sujit Choudhry, and others. Another great development, of course, has been the emergence of
China as a near-superpower, a little more today than it was yesterday because they have a new nuclear sub that went through the Malacca
Straits in the last two days. But the emergence of Asia
generally as a theater of enormous security and political importance internationally, and Tom is in the middle
of that field as well. He’s capable at Asian languages, he’s written a comparative book on rule of law and judicial
review, in that area. And then finally, and in
the more theoretical field of rule of law and its
practical ramifications, he’s been a major scholarly
voice in that area as well. Those of us, I’m proud
to say myself included in a minor role, who were
his professors at Berkeley are enormously proud of the great stature that he’s achieved, not
just because he’s famous, but because his scholarship
is so excellent, so insightful, and so
marvelously original. So we’re very privileged
to have Thomas Ginsburg as our Jefferson lecturer on the question, “Were the framers right
about constitutional design?” Welcome, Tom. (audience applauds) – Well, thanks to
everyone for coming today, and before I begin I really have to thank the committee for giving
me this tremendous honor of giving a Jefferson lecture. Perhaps more than your
average Jefferson lecturer, I know exactly what that means. I’ve been coming to them
since I was an undergraduate and I’m just deeply moved and honored to be asked to give one, so I would like to thank the committee, and also to thank Harry
Scheiber in particular for his indefatiguable support
of my career in general, but also for the honor today. To ask as my title does,
“Were the framers right “about constitutional design?” is to risk, in many quarters, ridicule, approbation, and even physical violence. We all know that we live in a country that was blessed with a set
of giants at the outset. As Thomas Jefferson said in
a letter to Adams in 1787, it really is an assembly of demigods. Reverence for our constitution
and those who created it is one of the hallmarks of
American political culture. People treat it with
quasi-religious reverence, commentators from both ends
of the political spectrum declare their loyalty and allegiance. This view of the framers as masters of rational deliberation, masters of applied political theory
I think is even stronger when we look at other recent exercises in constitutional design. Egypt 2012, the framers of
the Egyptian constitution don’t look so focused as those
in the previous painting. (audience laughter) Brazil, 1988. The framers look a little too focused, too committed to their
particular projects. So this view of the American founders as being a set of geniuses
is well entrenched in our political culture and may indeed have a kernel of truth in it. The funny thing, though, is,
when we look at their own views of their handiwork, they
were a little more skeptical. So Benjamin Franklin, on the very last day of the constitutional convention, admitted that he said, as you can see, “I confess that there are several parts “of this Constitution which
I do not at present approve, “for when you assemble a number of men “to have the advantage
of their joint wisdom, “you inevitably assembled those men ” with all their prejudices, passions, “errors of opinion and local interests, “and selfish views. “Can a perfect production be expected? “I consent to the Constitution “because I expected no better, “and because I’m not sure
that it is not the best.” Well, not exactly a ringing endorsement. It’s close, it says, “Well,
it’s as good as we can do.” George Washington: about a week later, “I wish the Constitution which is offered “had been made more perfect, “but I sincerely believe it is the best “that could be obtained at this time.” All right, good enough
for government work. (audience laughs) In the Federalist debates, which occurred immediately after the previous two quotes, we see a debate about the imperfections of the document which had been produced, and Hamilton, quoting David Hume, notes that there will be a chance, and that the political
community, on the last line, “must correct the mistakes
which they inevitably fall into in their first trials and experiments.” Indeed, much of debate
in the Federalist Papers if you go back and read them, is really about the question of whether to amend the Constitution
before ratification or after ratification, but imperfection is built into the very earliest
understandings of the document. Madison, in Federalist 43, notes “That useful alterations will
be suggested by experience, “could not be but foreseen. “It was requisite, therefore, that a mode “for introducing them should be provided.” In other words, the very
idea of imperfection was built into the
Constitution and its design through the introduction
of an amendment procedure, and that’s certainly
something that the framers did which as been very influential, and very helpful in our
own political community, one that other constitution makers have almost uniformly followed. The next question is, “What do Al Sharpton and Rand Paul have in common?” (audience laughs) The answer, of course,
is that they’re among a group of recent people,
far bigger than this set, who have proposed
constitutional amendments for various pet projects. As you might guess, Al
Sharpton’s proposals are a little different than Rand Paul’s. John Paul Stevens, in the top center, has recently written an important book, calling for the amendment
of the constitution to overrule, if you will,
the Citizens United case, which has so corrupted
our political culture. There is and always has
been a kind of groundswell of people who are calling for
constitutional amendments, something like 10,000 proposals
introduced in Congress since the founding of the Republic. Obviously, only a small handful of these have been successful, only 15 since the early 1800s, and so there’s always kind
of a move for amendment. Now, the three people on top
might be familiar to you. You may not all know
the two on the bottom. On the right, appropriately,
is Mark Levin, who is otherwise known as The Great One, Fox News Commentator. On the left is Harvard
Professor Lawrence Lessig, and both of them are united in that they are not only calling for
constitutional amendments, but calling for a new
way of going about them, different from what we’ve
achieved in our past history. Many of you may be familiar with Article V of the US Constitution, and from your high school civics days, remember that it takes 2/3
of both houses of Congress, and 3/4 of the states to pass
a constitutional amendment. There is, however, another
provision in Article V, which allows the calling of
a constitutional convention. That is, if 2/3 of the
states, state legislatures, call for a constitutional convention, we can engage in rewriting
the Constitution. Indeed, earlier this year, Michigan become the 34th state legislature to call for a new
constitutional convention, and they sent this to John Boehner. Turns out that some of the earlier states have since retracted their proposal, so at this moment there
aren’t 2/3 of active calls, although on one interpretation, and this has been pushed by
some, including Mark Levin, it’s good enough, and that we should have a constitutional convention. Imagine if we did, what kinds
of issues would we talk about? What I would like to do today is actually engage in a thought experiment. It may or may not be realistic to think that we will get a
constitutional convention. It’s certainly unrealistic to think that if we did, the framers
could be reincarnated and come back and participate in it, but that’s what I want to propose as a way of thinking about it. Suppose we had a
constitutional convention, and that the framers were
confronted with the question of what exactly we might do. What should we do? How should we go about writing a Constitution of the
United States in 2014, as opposed to 1787? I submit that the way they
would approach the problem is exactly the way the approached the problem back then, and that is, to summarize, empirically. The framers were, of
course, living in a time when there was no precedent
for a written constitution, but they were well-versed and well-read in literature dating back
to the ancient Greeks. They had read philosophy,
they had read history. Indeed, it may have
been the last generation that had read literally everything that there was to be read in the language which they worked in, and the way they approached these things, when confronted with the problem of real world institutional design, was to look at what had happened before, so in the spring of 1787, as he prepared for the
constitutional convention, James Madison plunged
into a thorough study of historical confederacies,
ancient and modern, from the ancient Greek,
to what he called modern, the Dutch Republic and the
German Federation of the time, and engaged in a kind of inquiry, an empirical and comparative inquiry, to understand what it was that had worked and had not worked. His inquiry was
comprehensive but schematic. He focused just on six cases, and for each one of these, he looked at the allocation of power between the center and
the sub-governments. He looked at various
rules of representation that worked in these confederations, and he considered, in his
language, the virtues and vices, we would call them costs and benefits, of the various approaches
to federal system design. This really informed his approach to the constitutional convention, and informed in many
ways the Virginia Plan, the famous Virginia Plan, because Madison concluded
from this historical study that the weaknesses of the
Articles of Confederation, that the weaknesses of earlier
federations, had all lain in having a central
government that was too weak, and subunits that were too strong, so he came in thinking that there would have
to be a strong center, and this indeed made
sense when you consider the weaknesses of the
Articles of Confederation under which they had
been living at that time. The point is that the
founders thought their task was trying to reason their
way to good institutions, in a fragile world where
republican government was a rarity, where republics, in all
previous instances, had failed, and they recognized in doing so that there was something to
learn from past experience, and so they engaged in Madison’s famous Notes on Ancient and Modern Confederacies, an empirical and comparative study, and that’s exactly what
I want to do today. I’m informed here by
some work I’ve been doing for that last several years in something called the
Comparative Constitutions Project. We have a website you can go to, which is an effort to try to collect the texts of all constitutions written for independent nation states since 1789, since the
founding of the United States. This is pretty easy exercise in the sense of identifying the documents. For most countries nowadays, there is a single written
document called a constitution. There’s a few outlier cases. Saudi Arabia, for example,
has no written constitution under the theory that the Holy
Koran is the constitution. Britain, of course, famously, doesn’t have a codified constitution, so in looking at documents,
we usually will look at the document called a constitution. If there is no such thing,
we’ll look at a bill of rights or a statute that sets up
a branch of government. Fortunately, for most
countries, its fairly easy to identify what the constitution is, and one of the things we’ve
discovered in this project, which as taken much
longer than we had hoped, is that there are a lot
more constitutions out there than we had imagined when we started. That’s because, of course,
most constitutions do not last. As I reported in a book written in 2010, the average lifespan,
the predicted lifespan of a national constitution,
for all countries since 1789, is only 19 years. It makes the American experiment seem all the more exceptional, and it also suggests that
there’s something at stake in thinking about constitutional design, something normative, something– It’d be very useful, in other words, to be able to try to identify
principles that were good and principles that were bad, things that work, and things that don’t. This slide shows the spread of the idea of the written constitution over time. You might think about it as a kind of technology of governance, right? Not all governments in
all times of human history have had written constitutions. It’s really an invention
of the American framers, and this is certainly one of
their most influential ideas, the idea that we ought to codify all our core principles, our core values, and our core structures of government into a single written document. That’s been an enormously
successful project. The top line on this chart, this figure, shows the number of
countries in the world, on the left axis there, roughly quadrupling since 1789, as empires have broken up. The dashed line just below it shows the number of countries which have a written constitution, a discrete written constitution, and the interesting thing here is that those two lines converge over time, so that sometime early
in the 20th century, it becomes the norm that when
you set up your new state, the first thing you do
is draft a constitution. The vertical lines show the number that are written in any given year, and one can see here that
it’s a common phenomenon, typcially following great
crises in world affairs, the Springtime of Nations, the end of World War I, World War II, the Cold War, there are episodes in which constitutions are written. The question which I really have is, someone who is writing
a constitution today, what is there to be learned
from this experience? What would the framers do
if they were starting over? Let me say quite clearly what I’m not going to do in the lecture. I’m not going to ask the question about whether anyone has learned from us or whether we’ve
influenced other countries. Periodically, in the legal and
political science literature, you’ll see projects
focused on the influence of the United States Constitution abroad. There was a lot of this
around the bicentennial. Recently, there have been some reports about how we’re losing influence in our current mood of
great national decline. I’m not interested in that, though it is to some degree relevant, and I may mention some facts about it, but I neither want to be
celebratory or somber about it. I don’t want to focus on
who’s learned from us. I also don’t really want
to get into the question of what we should change in this country. We can talk about that
in questions and answers if you’re interested in, but there’s also a small literature on a calling for changing
the American constitution, and particular institutions. There was even a book a few years ago on competing authors
offering their proposal for what was the stupidest provision of the Constitution.
(audience laughs) Answers ranged from the Electoral College, to equal representation in the Senate, to the rule in the 7th Amendment that you get a civil jury
trial for all suits over $20. Note to constitution makers: there’s such a thing as inflation. Again, I don’t want to ask
exactly what we should change. The point is, I want ask what it is in terms of design principles
that the framers had, so some of the things
that they came up with, the Electoral College is a good example, were not well-reasoned,
based in a kind of theory of institutional design. They were political compromises, and it’s not surprising that there are many critics of those kind of things. On the other hand, the
framers had very deep ideas about human nature, about
the structures of societies, and the nature of republics, and it’s that in which they were, I think they left their best work for. Those are the questions
on which they thought they were providing universal answers, and so that’s what I
would like to focus on. I’m going to focus on
three topics in particular. I think there are many more I could take, but I’m gonna focus on war, power, and change of the constitution. Let me start with war. If you think back to 1787,
war was, and war power, weighed very heavily on
the minds of the framers. The nascent republic was in big trouble. The Continental Congress, which had been created by the
Articles of Confederation, lacked the power to tax. It had the power to make treaties, but it didn’t have the
power to implement them, and so it made a peace
treaty with Great Britain, which the states were then reneging on. The British weren’t happy about this. They refused to dismantle
their forts up in Canada, and there were border
skirmishes happening, so they felt a great
threat from the British. To the south, the Spanish had
closed the Mississippi River. To the west, there were
various Indian tribes, and the situation was
one which really provoked the federal convention in the first place. They were so worried about security. What were their questions about war? Well, they of course come, we know, to the idea that Congress should have the power to declare war. Heavily influenced by Machiavelli, they thought that an
unrestrained executive would seek aggrandizement through foreign policy
and foreign adventures, and so very early on in
the federal convention, they thought that the
power to engage in war should be with Congress. As the discussion went on,
Madison and Elbridge Gerry proposed that the word
“declare” be substituted instead of “making war,” so the initial idea was that Congress should have the power to make war. Didn’t really know what that was, and so somewhat on a whim,
they said “declare war.” Their idea was the if
Congress could declare war, Congress would involved in all major foreign policy decisions, whereas in a defensive
war, or some situation where there was a need
for speedy response, the executive would be
able to act immediately without being hamstrung, so they were seeking in some sense to balance the war power between
Congress and the president. They didn’t talk much about it,
but of course they also said that the President would
be Commander in Chief, and one of the great constitutional
questions of our time is what exactly the extent of that power is for the president. Under the Bush administration
was a very expansive view, such that under the theory of the executive branch at that time, Congress couldn’t pass
law about how to wage war, and of course, others say, well Congress really
has the residual power, so there’s a big internal
debate in the United States about the residual power. John Jay, one of the early Federalists argued that the scheme
that they came up with, with Congress involved in declaring war, would mean that there would be less war. “Not only fewer just causes of war “will be given by the national government, “but it will also be in their power “to accommodate and settle them amicably.” It’s a position that, in some sense, anticipates a lot of international
relations scholarship, as I’ll come to in a minute. We also have live constitutional questions about the division of power between the executive and the president. As many of you may know,
we haven’t actually had a declared war since World War II, and only four in American history, and so there’s a fear in our modern era of executive aggrandizement, exactly what the framers
thought might occur. Will Congress ever act? Well, they’ve passed the War Powers Act, and the presidents have always asserted that that’s unconstitutional, yet sometimes the presidents do act in accordance with the War Powers Act, not withstanding their view
that they don’t have to. In my opinion, assigning the war power, the power to declare war to Congress has had some restraining
effect on the president. We can observe this in
some of the skirmishes that have happened since the
passage of the War Powers Act, but generally speaking,
Congress doesn’t want to get involved in war decisions. Why? Well, because they can only lose. Political science literature suggests that successful wars get
attributed to the President. Even if Congress goes along with it, they won’t get much
political credit out of it. Far better, if you’re a congressman, to just let the president take the lead as Congress is doing
now with Obama in Syria. If it works well, they can
take some of the credit, but probably won’t be assigned much. If it fails, they can blame Obama, as I’m sure they will if it goes badly. The idea is that Congress
lacks the political incentives to actually exercise the power they’re given in the Constitution. I want to tie this to the international relations literature, particularly the idea of Jay, that having Congress involved
would lead to fewer wars, and more settlement. The democratic peace literature, for those who aren’t academics, is one of the few things
in which we can say there’s something like
a law of social science, and the finding is that democracies don’t go to war with each other. Pretty much a universal historical truth. There’s a lot of debate as to why, but it is a pretty strong finding. It’s not to say that
democracies are more peaceful. They fight a lot with other countries, and when they do go to
war, they tend to win, and so there’s a lot of
empirical regularities there that need to be explained. Some of the literature suggests that the advantages of democracy might flow, in my view, from the involvement of the legislature. To begin with, consider
the normal conflict. Let’s take Obama in Syria,
last year, when he was– or two years ago, I guess,
when he was first proposing to Congress to get permission
to go to war in Syria. Obama and Assad are engaged in a kind of strategic calculation, where each is trying to
understand the other’s intentions. If Assad doesn’t believe Obama, then he’s gonna continue
to do what he’s doing. If he does believe Obama,
he’s going to maybe back down to avoid being hit by the United States, which is a stronger party. The role of Congress in this
kind of bargaining game, I think is at least twofold. First of all, Congress
can prevent the president from getting to bad or
unpopular conflicts. They can screen; they can stop us from getting into wars that
we aren’t going to win. That might explain why democracies win the wars they get into. In addition, in the bargaining game, in my example with Assad,
they add information. If Obama went to Congress,
and Congress said, “Yes, we want you to go,” there’s one thing Assad can be sure of, that Obama is about to attack, right? Having done that, it’s
very hard politically for Obama to back down. It’s very hard for the
Congress to back down, having approved a foreign war. Having legislators involved
might allow better signaling, better sending of signals
in the international plane, might even allow better
aggregation of information in the United States. Legislatures might help
democracies to win war, and that might be part of the secret of the democratic peace. How have other countries
written their constitutions? Well, this shows over time, in the dashed line, the executive, and the red line, the legislature, who has the power to declare
war in national constitutions, and you can see that the
United States approach of giving the legislature
the power to declare war has not been very popular,
although to some degree the whole question is interesting, and we can come back to this in questions, if anyone’s interested, because declaring war doesn’t even have any meaning, really, anymore;
no one declares wars anymore, yet constitution makers
continue to assign the power, so there seems to be a trend away from the American approach. On the other hand, if we
consider war power more broadly, not just declaring war,
but giving Congress some sort of approval authority over, let’s say, the actions
of Commander in Chief, we find a much broader set of countries have legislative involvement. This is something like 70% of countries have some legislative involvement. Excuse me, some 50% of countries have some legislative
involvement in war policy, and that seems to be pretty significant. What I do in this part of the
paper is to look at the data. I have an advantage here that there’s a huge scholarly community
studying the democratic peace, and they have data that aggregates every international conflict,
actually since about 1800, and they look at crisis bargaining, they look at sort of
threats to other countries, but they actually look at instances that actually erupt in force, and they have different sort of levels of violence, if you will. They define a war as a conflict that involves more than
1,000 battle deaths, and so, what I want to
do, is I want to compare the constitutional assignment of powers with these wars that have been
looked at by other scholars, and the question, of course
is whether you have– If you have congressional involvement, legislative involvement,
does it lead to less war? Now, this other literature uses what I refer to here as dyadic setup. Basically, for any
particular pair of countries, it asks, in a given
year, if they go to war. Each country is either
and initiator or a target, so there’s a state a, state b, and so there’s this
massive amount of data. What I do in the results
I’m about to report, is I look at the relationship between constitutional power and war, and I control for a few things. I control for whether or not one state is more powerful than another. That’s gonna lead, if you think about the United States might be
more likely to invade Grenada than it would France, for example, so relative capability
as a predictor of war. I also look at whether both
countries are democratic, and also whether they share a border, because borders are the source of most international conflicts. In looking at this data, I’m
just gonna report this to you, what these figures mean,
the sign, minus or plus indicates whether you’re
gonna get more or less war with the condition that I’m looking at, and the asterisks indicate levels of statistical significance. Just to summarize, every single one of these signs is negative, so if you have legislative
involvement, the first four rows, you are less likely to
get use of force or a war, and the statistically significant ones have to do with the approval
of commander action, et cetera, the ones with more asterisks. It’s also interesting that silence, constitutions that are
totally silent on the question actually lead to less war. That’s an interesting finding. So far, it seems like
the framers were right. They said, if you involve the legislature, you’re gonna get less war, and so maybe we ought
to suggest that in our fictitious constitutional
convention we’ve called that we would keep the rule as it is. There’s a problem, though, and this is what happens
when you look at data. I look not just at selection of wars, but what happens in the
wars that you get into? Again, there’s kind of this international bargaining process that leads to war, and sometimes there will be settlement, sometimes you’ll
miscalculate, if you will, and we’ll get all the way to violent and destructive conflict, and what the findings suggest is that– I’m looking here at outcomes. Are you more likely to win or lose if you have a legislative involvement? Interestingly, what we find is that legislative involvement in the initiator always leads to less win, and also leads to less win
on the part of the target. It seems to confuse, or confound,
that bargaining process. On the other hand, legislative
involvement in either state leads to more stalemate. Why might that be? Well, one theory is that
what’s going on here is something like what we would call the selection of disputes for litigation, that if you think about it
in models of litigation, two parties always settle
unless they’re really stubborn or they have different
levels of information, or it’s really, really, really close case, because litigation’s always costly. It’s always a dead weight loss,
to use the economist term. What we find is that, probably
war is a lot like litigation. You’re probably, when you
have legislative involvement in screening wars, one side or the other is settling most of the cases, and the cases you get are the ones where it’s a really close case. Furthermore, once you get into war, and I think the United States, say in 2004, 2005, is a good example. A legislature which is
committed to going to war is gonna have exactly the same problems as a president might in
terms of backing off. Congress isn’t going to admit that the Iraq war is a bad idea, because they’re all gonna
lose their seats, right? One of the problems of democracy and legislative involvement
in particular may be that you stick with bad wars for too long. Where does this leave us in terms of the constitutional convention? I’m not sure. It’s kind of mixed result. The framers were right,
that you get less war. They didn’t really think about– I mean, their view was that you would win the wars you got into, but there doesn’t seem to be
very strong evidence for that. It’s a possibility. I think you’d have to
probably look at the scale of these wars that you
end up getting into. If they’re really minor things, and they end up being a
stalemate, no big deal. If they’re really major,
then probably there might be some problem with too much commitment on the part of the legislature. Second part of the talk: The framers thought a lot about power. They were very concerned with dividing it. They were very concerned
with trying to find ways to pit interest against interest in order to ensure liberty. When one thinks about the central issues, they thought a lot about diversity, how to deal with a diverse
political community, and they thought a lot
about the executive. If you go back and you read the accounts of the constitutional convention, they talk a lot about executive power. Until two weeks before the end of the constitutional convention, the plan was for Congress
to pick the president, which would make us kind
of a parliamentary system, and the reason this broke down, actually, is that the so-called Great Compromise, where the large states
and the small states came to the design of our modern Congress, that is a House of Representatives with proportional representation, and a Senate in which the states would be represented qua senate, and so the problem is
if this bicameral body was to elect the president,
how would it work? Would they all sit together? Well that would obviously
privilege the populous states. On the other had, if you
had one vote per state, that would make the
smaller states stronger, and they couldn’t agree, so they gave it to a special committee, which ended up scrapping
the thing entirely, and coming up with that
wonderful institution which we all know as
the Electoral College. It was, as they admitted right
away, a political compromise, and one which they realized
was very complicated, and it’s always on the top of the list when people make suggestions for things we would get rid of in the
current American constitution. They debated, once they
decided that the executive would be elected in this way. They still debated how long
the president should serve, whether it would be plural or singular, and to some degree, these
questions are still with us today. We have the large debate
on the unitary president. I don’t think that the
founders anticipated the modern plebiscitary presidency, where we vote for one person, and that person is supposed to do it all. We blame him or her for
every wrong that occurs. It’s pretty odd, when you think about it, the idea that one person ought to be able to do everything that is required. Many political systems don’t do that. Many of the Indian tribes where I live, in my part of the country,
would have two different chiefs, a chief for war and a chief for peace. Pirate ships, which were kind of floating governments in their own way, would often have a captain for war and a captain for navigation, and yet somehow we think
we can have one person who can do literally everything. It’s not true at our state
and local level governments. When we go to vote next week, we’re all gonna vote for– Well, it depends; I’m not sure if the governor is up in California, but we vote for multiple offices. We have divided executive. We vote for Attorney General, we vote for Secretary of State. At the local level, I’m sure you’re all paying close attention to the cliffhanger which is the Alameda
County Coroner’s race. (audience laughs) We vote for all kinds of officials, on the idea that there’s specialization. When it comes to the national
government, we don’t do that, and that seems like something
we might think about, whether that’s really the right way to go. Now, there’s a large
debate in political science on these forms of government known as presidentialism
and parliamentarism, as well a new form called
semi-presidentialism, and there’s really enormous literature on the merits of these things. I’m going to suggest that maybe
the plebiscitary presidency is not such a good idea, although the literature’s pretty confused. This just shows the trends. The top line at the beginning is presidentialism, the darkest line, and you see the number
of political systems that have a presidential system. The middle line is parliamentarism, and you can that that,
sometime around 1960, surpassed presidentialism as the most popular form of government. Finally, really booming
since the end of the Cold War is what’s called the French model of semi-presidential system, in which, which is characterized
I think, by two executives, by a president who’s directly elected, sitting with a head of government, who is responsible to the parliament, and some people say you choose that because you think you can
get the best of both worlds. Sometimes countries choose it because they’ve got a
divided political system. They want to give something to each side, but it’s become the default model. The plurality of political systems today have a semi-presidential system. Whether or not it’s a good
thing is hard to assess, but I think it is safe to say that pure presidentialism
is on the decline. Again, you think about,
“Can one man do it all?” What’s the advantage of
having one man do it all? Accountability; we get
to vote every four years, and blame one person for the sum of all our benefits and
costs during the period. On the other hand, there’s a real risk of cognitive and other overload by having it all
concentrated in one person. The literature on
presidentialism is very critical. It suggests that in many
countries, having a single person is going to be very, very
divisive and damaging. Imagine an ethnically diverse
society, like say Kenya, which is a presidential system. In Kenya, the presidency becomes a
winner take all institution, and whoever wins feels
a need to give patronage to his particular tribe or group, shutting out the other sides. With the title of a
well-known book on Kenya, when there was a switch in parties early in the 2000s, the new attitude was, “It’s our turn to eat at
the trough of the state,” and this means, of course,
that the other side is shut out from representation. That’s certainly a risk of presidentialism in a diverse country like ours. We haven’t suffered it, but still. Another risk of presidentialism
is the opposite, and that’s the gridlock problem. Because presidential
systems inherently create a division of power between the
congress and the presidency, as in Madison’s design, you have in many, many cases, total gridlock. I’m not saying this is gonna
happen in the United States, but one can see in the
current political mood how in a system of less
robust institutions, there might be a desire
for some kind of savior to cut through the gridlock, and you would have democratic breakdown. It’s happened in many, many countries. Indeed, the comparative
politics literature suggests that a democratic breakdown is associated with presidential systems. The most recent studies say that it’s not the fault of presidentialism, it’s the fact that unstable countries choose this particular
model of government, but either way, there’s certainly
some sort of association, and so that one sees in
new constitutional projects that no countries have
adopted presidentialism unless they had it already. That suggests that in our
constitutional convention, my fictitious constitutional convention, we might stick with it, but we might not. I think that there’s some possibility that even if we did, we might think twice about the length of the term of the presidency. This was debated very
intensely by the founders. The initial idea was that it would be seven years,
actually, and non-renewable. There would be a term limit
in the US Constitution. They ended up getting rid of that, and coming to the system that we have. I’d like to talk just a
minute about term limits. In the debate, George Mason had a theory that someone in the last term of office, right before they would return to being among their constituents, this person would act in
the public interest; why? They would be thinking about their friends and neighbors back home. They would be focused on the public good. The alternative view is that, of course, desire for power would
breed a hunger for it, and a term limit would
lead someone to stay on, going to the second quote here, Hamilton said, “As the
object of his ambition,” that is, the person who’s coming
up to the end of his term, “would be to prolong his
power, it is probable “that in case of a war,
he would avail himself “of the emergency to evade or refuse “a degradation from his place.” In other words, create a
crisis and stick around, and that’s again something we
see in many, many countries. Thomas Jefferson thought the failure to include term limits
in the US Constitution was one of its great errors. He said that, “The people have the power “of removing him every fourth year, “but it’s a power which
will not be exercised.” People will stay in office forever. Now, in the United States, we
actually got very lucky here, because the Constitution doesn’t say anything about a term limit, or didn’t in the first version,
before the 21st Amendment. What we did have was Washington, who was the first president, and he very wisely decided to
step down after a second term. He didn’t want to stay in
office, and this created a kind of unwritten
constitutional amendment in a way, and it was observed for many years. Actually, a very famous instance regarding this unwritten
constitutional amendment came with Teddy Roosevelt. Teddy Roosevelt had actually
inherited the term of McKinley, after McKinley was assassinated, and so he served in
office for three years, then ran on his own,
and then stepped down, saying, “There’s a two term
limit; I can’t run again.” But four years later, he changed his mind, and decided to run on
the Bull Moose Party, and he was up giving a speech one day, when someone came along and said, a crazy fellow tried to
shoot him on the grounds that a man should not be
president three times. In other words, someone
was trying to enforce this unwritten constitutional
norm of the time, that there should be a term limit. Roosevelt was lucky; he
wrote very long speeches, and actually he had a 50-page speech, which took part of the bullet,
as did his glasses case. It actually did penetrate his skin, and he continued to give the speech, which I will not do
(audience laughs) if one of you decides to shoot me now to put you out of your misery. The point is that we were kind of lucky, and as a matter of constitutional design, I think most democratic
constitution makers now do put in a term limit, but this leads us to the question of why. In some sense, the whole idea of a fixed term is somewhat odd. It means that we the people
can’t continue to have, let’s say, Barack Obama
for another four years, even if he’s popular among
60 or 70% of the country. On the other hand, it sometimes means we are stuck with people who have been proven to be incompetent and lame. This is in some sense, maybe the advantage of the parliamentary
system, and one reason why most countries have been choosing it. Indeed no country, as I said,
which has not had it before. Let’s imagine, again, I’ll go down here, what would have happened to
various American presidents if let’s say, a sustained
period of popularity at 40% or below would
lead to your easy ouster in a parliamentary vote. Well, Richard Nixon would
have met that in 1973. It’s not a great example,
because the system did work to get rid of Nixon, just took a little longer
than it might have otherwise. Jimmy Carter probably would
have been gone by ’79. On the other, and oh, George W. Bush, yeah definitely, 2006 or so, we’d be done. We could have moved on. On the other hand, the popular presidents might be able to stay, if
we got rid of term limits and moved to a parliamentary
form of government where the accountability was constant. Reagan clearly very popular by the end. Bill Clinton, extremely popular, and think what a different place we’d be if he’d been president
for another year or two. The point is that this might
be something to look at, certainly if we were starting afresh. I doubt we’d come up with the
precise system that we have. It seems to be unwieldy. We have a weird way of
selecting the president that sometimes leads
to minority presidents who do not even have 50% of the vote. We would probably change the way we vote, and maybe even the idea of
having terms in the first place, by moving to a parliamentary system or semi-presidential one. I want to turn now to my
third theme, which is change. Obviously, as I said before, this was an important
theme of the founders. They recognized that their
document was imperfect. They recognized that
change would be required. As Jefferson famously wrote, “Some men look at constitutions “with sanctimonious reverence, “and deem them like the ark of covenant, “too sacred to be touched.” Going on, “I know that
laws and institutions “must go hand-in-hand with the
progress of the human mind. “As that becomes more developed, “more enlightened, as
new discoveries are made, “new truths disclosed and
manners and opinions change “with the change of circumstances, “institutions must advance also, “and keep pace with the times.” The question is really how
well we’ve done in this regard. Madison, I should say, also had a theory that changing the constitution
would be required. In a bit of propaganda,
in Federalist 43, he said, “The mode preferred by the convention “is stamped with every mark of propriety. “It guards against the extreme facility, “which would render the
Constitution too mutable, “and extreme difficulty, “which might perpetuate
its discovered faults.” It is the Goldilocks Theory, right? Not too easy to change, not too rigid either, and this is what they
thought they were getting. It’s hard to know if they got that right. The 10,000 different proposals
I referred to earlier, to amend the Constitution,
I’m sure many of them were not worth adopting. Some of them keep coming
up over and over again. Some of them are about
political grandstanding. Knowing that constitutional amendment is basically impossible,
members of Congress will propose all kinds of things, sometimes to overturn
Supreme Court opinions, sometimes to favor their
pet political causes, things like requiring the
Bible to be read in school, overturn Roe v. Wade, and
various other changes, and it may be that if we had
an actual realistic culture of constitutional amendment, we might get better proposals in Congress. The other thing, of course, the consequence of having a rigid view, a rigid system of constitutional amendment is that our system has survived, in part, by judicial reinterpretation
of the document, leading us all, in some sense, to be hostages to Anthony Kennedy, who is a perfectly nice
guy, but it’s hard to say why he should be making decisions that affect much of our lives. Now, when scholars look
at the US Constitution, in comparative perspective,
one question is, “How rigid is it compared to others?” It’s actually a very tricky social science question to answer, for technical reasons I can get into, but looking at five different indicators, one sees that on cross-national indicators of amendment difficulty,
the US Constitution seems to be extremely rigid. It’s the most rigid under the
first and third and fourth, second out of 42 on Lorenz’s index. On my own index in 2009, we rate it almost as hard, as the hardest constitution to
amend out of 440 in history. It seems to be pretty difficult Some say that this
difficulty is exactly why the Constitution has endured. It’s a common claim. If we made it more flexible, then the Constitution would lose its value as a kind of sacred document
which we all revere. It would become a mere repository of particular policies, that happened to be favored
at particular moments, and looking around the world
at other constitutions, one sees examples of this. One sees constitutions that seem to have a lot of sort of interest group benefits that are written into the
text, very thick documents. India’s is about 145 pages. It makes it, in some sense,
almost a different meaning of what a constitution is supposed to do. The argument is that
rigidity has helped us. Indeed, our constitution is
the longest lasting ever. This is the most enduring constitutions, and you see a lot of
Western European countries, and yet I think it’s pretty
easy to debunk the claim that rigidity alone is responsible. In this 2010 book, we analogize the United States Constitution
to the woman in this picture. This woman is a woman
named Jeanne Calment. She was the oldest human
being ever recorded, when she died in 1997, at
the age of 122, in France. They asked her, “What is
your secret to long life?” and Jeanne Calmet said, “You
know, I smoked till I was 117.” (audience laughs) “I gave it up then, but it
didn’t make me feel any better, “so I went back the next year. “I drank Port wine by
significant amounts every day, “and I ate chocolate and olive oil.” Now, notwithstanding the
benefits of some of those things, I think if that’s your exclusive diet, you wouldn’t be predicted
to live a long time, and yet she did. This is basically our view of the United States Constitution. (audience laughs) It happened to last a long time, one of the most long-lasting, but it probably did so
in spite of that feature, of being overly rigid, and what we find when we look at all countries, and we have this kind of predictive model of constitutional lifespan, is that it is flexibility and not rigidity that predicts constitutional longevity. Earlier this year, I was actually in Oslo, because it’s the 200th anniversary of the Norwegian Constitution,
so they asked me to come and give my comparative reflections on the Norwegian Constitution,
and I showed this slide, and then I showed this
slide, which is the world’s oldest yoga teacher,
(audience laughs) 92 years old, and of the Norwegian Constitution of 1814. It’s an incredibly flexible document. To change it requires a
2/3 vote in parliament, in a single house of parliament, with an intervening election, so that one group can’t manipulate it, they have to kind of
go back to the people. It turns out, that’s really flexible. It’s allowed Norway to adjust its system over time, from being a pure monarchy to a kind of wonderful place that everyone wants to move to. Everyone in Norway’s a millionaire. That’s probably not attributable
to the constitution, but certainly the
constitution has endured, because it’s been changed
very often, as Jefferson said, not treated with sanctimonious reverence, but updated with the times,
as conditions have changed. This figure shows the number of provisions amended in the Norwegian
constitution per year, from 1800 onward, and
the comparable figure for the United States, and
you see that basically, constitutional amendment has been taken off the table from the early 1800s, with a couple of subsequent
periods, when we’ve added a few. Norway, on the other hand, has changed it at least three times a
decade since the 1850s, and these aren’t short term policy things. They’re small things,
allowing the system to adjust, things like expanding the franchise, changing the rules of parliament, making the political system more viable. Now, I’m not suggesting
we should be Norway. That would be too much,
and would surely risk physical violence, and also
we don’t have that much oil, (audience laughs)
but the point is that there are other ways to do things that might give us some of the benefits that we attribute to our own constitution. Think for a moment, if
the founders had adopted, let’s say the Norwegian rule
for constitutional amendment, and not the American rule. Well, we probably would have had more constitutional amendment, but what else would we have had? We probably would have had
less emphasis on the courts, as a means of governing our lives, as a means of pursuing
constitutional amendment. In Norway, they have
a court, which has had the power of judicial review
since the mid-19th century. They never exercise it. The courts are the courts;
they’re good courts, but they do law. They don’t do policy;
they don’t govern us. They have a vigorous
system of party politics, which people are involved in. They fight about policy, like
how to spend the oil money, but the point is that there really might be a very different way of doing things, and not necessarily a worse one. I actually think it’s pretty interesting to think about what the global
world would have looked like, what my data would have looked like, if the United States had adopted a more flexible amendment formula. In my view, the Americans are the source of the idea of judicialized governments, of the idea where the courts
exercising judicial review should be able to get involved in all kinds of areas of public life, and if the Americans had not done that, if they had not been forced to, in a way, through constitutional amendment, how different would global
political practice be? It is, as well, kind of a speculation. That’s all I can do, but I to suggest that it does matter. You know, I don’t want to, in concluding, suggest that I don’t venerate
the founding fathers. Pretty great group of guys. They’re remembered for
their important and enduring debates about political theory,
more influential, I think, than they would have ever expected. Indeed, if they’d been called back for my fictitious
constitutional convention, they’d be stunned to learn that their document was still being used. I think they’d be completely
surprised by that. Their view was the republics
were doomed to decline, and so I think they’ve had success, in a way, beyond their wildest dreams, but it’s also true that going back, they would, I’m sure,
be amenable to the idea that the document ought to be changed, ought to change with the times. Certainly Jefferson, in whose honor this lecture is named, had that that view. Our practice has been perhaps more Madisonian than Jeffersonian, but I think there are
certainly some costs to that. Well, in concluding, I want
to conclude with a quote from Patrick Henry, which I do think is a kind of fitting quote
for a Jefferson Lecture. “I have but one lamp by
which my feet are guided, “and that is the lamp of experience. “I know of no way of judging
the future, but by the past.” This is what the founders would
do if they came back today. They would look back, they
would see what worked, and they would come up
with some institutions which would serve us, and I think that’d be a wonderful thing, if it could somehow happen,
which of course it won’t. I do worry that if we do end up calling the constitutional
convention, I don’t think we’ll proceed with the wisdom
of the founding fathers. Thanks very much. (audience applauds) – There are many pleasures involved in being a chairman of the
Jefferson Lectures committee. One of them is, I have the prerogative of asking the first question. You haven’t mentioned
slavery and the Civil War, with regard to the American
constitutional design, and I had a very hard time
listening to you, Tom, thinking how Norway
would have handled that. – Yeah. – [Harry] Perhaps you’d speak to that most divisive issue of all. – Right. Great, well Norway’s obviously
not a federal country. It’s much smaller; it was much poorer when it was first founded. They did have their own versions of exclusive and racist behavior. The original Norwegian constitution bans Jesuits and Jews
from entering the country, and it took a while, I think it took them three or four decades,
then they allowed Jews in. I don’t think they allowed
Jesuits in till like 1958, so it took a really long time. The whole thrust of their
constitutional trajectory, as ours, has been towards
greater inclusion, and that seems to have been pretty effective. I think that in terms of how– Your question provokes the thought about, would the political system have done better than the judicial system, and our own history suggests that. Dred Scott is considered a failed case, a failed judicial attempt
to intervene in a very difficult political situation, so I think I’ll stop with that, There’s no more I can say.
– Okay, thank you. – My name is Mike Beller; I’m a lawyer. I have a question about judicial review, relating to the rigidity of
the American constitution, and its survival. First, to what extent to do you think the institutionalization
of judicial review and interpretation of
laws and constitution has perpetuated the
survival and the rigidity of the American and/or the rigidity of the American Constitution, and from a broader perspective, in the spirit that
you’ve spoken from today, is that a good thing?
– Mm-hmm, great. Well, you know, I think
it’s conventional wisdom that many of the little
things that we’d like to change in the Constitution
and we can’t, right, so they do get worked out in
the course of concrete cases, and through the exercise
of judicial power. Has judicial review extended
the life of the republic? I mean, I suppose the conventional wisdom, it didn’t do a very good
job before the Civil War. It didn’t do a real good
job after the Civil War, when it starts to become
more vigorously entertained. It’s not really until the 1930s that we begin to celebrate
the role of the courts, and basically their role is allowing the government to do
things it wanted to do, but I think in the more modern period, and Professor Scheiber brought up the problem of slavery, and you could say the problem of civil rights in the Warren Court era,
are equivalent things. How do you change
entrenched social practice? There’s a large debate in the literature on the role of the courts, as good or bad. It’s one that’s been revisited now with regard to gay rights, and many of the foremost
advocates of social change are telling the courts to stay out of it, because they can only mess
things up if they get involved, so I think it’s a really
deep and good question as to whether they’ve done more harm than good in this country. I tend to be someone who thinks that, like everyone else, I like the courts when they decide the way
I want things decided, and I don’t like it when they don’t, and of course that’s not a very good theory of
judicial legitimation. It’s been pretty good for
rights in the post-war era, and there’s a lot of
sort of darker chapters in the history of judicial review. – More questions? Years ago, I heard a talk by the great historian, David Potter. He asked a similar
question about federalism, because didn’t like something I’d written about federalism being a great failure, and he said, “It was a great success. “We had a Civil War, but we
didn’t have it for 60 years.” – Yeah.
(Harry and audience laugh) – Federalism was responsible for holding the nation together for 60 years, and then it couldn’t do it anymore. Malcolm Feely, Professor Feely. – Yeah, Malcolm Feely. Is the constitution done a good job of protecting federalism? – You know, I was thinking
about this question, and you know it far better than me, but to me, federalism in the United States has been, I think, a great success story. Again, after Civil War, right? It’s allowed a kind of
adjustment over time, from a system which was very much leaning towards the subunits, towards one that has, of course, become much more centralized, and yet it’s not centralized all the way. There’s still sort of a
role for state governments. The theoretical challenge of
federalism is the following: we ask, “Why do we have government?” We have government to
produce certain public goods, national defense being the paradigm one. You might say something
like criminal justice, or welfare policy, or
things which don’t need to be produced at the
level of the nation state, but can be much more
responsive to local conditions. The theoretical question about the allocation of powers
in a federal system is, “At what level are the
public goods best produced?” and assign the power to that level. I think the success of our system is that we’ve allowed
that to change over time. It hasn’t been rigid. It’s been responsive to the– In some cases, surely not all, but responsive to the fact
that certain public goods are best produced at the
level of the nation state. I should say, just as an aside, this is of course the challenge
of global governance now, that we’re living in an area
where certain public goods, and climate change and things like that, can’t be produced, or can’t
be accomplished by a system of independent nation states, yet we lack the governance
structures to accommodate them, but I think within the United States, it’s done a pretty good
job of shifting over time. – [Malcolm] Thank you, Tom. – As I listened to your account of the amendments in Norway, they sounded like items
that our political system has handled in many different ways, and not just the judicial
route that you’ve talked about, but congressionally and in
all sorts of other ways. I wonder, are you asking
the right question by asking about the amendability
of the Constitution, or would it be more
productive to ask a question about more generally,
“How can changes be made?” – Good, so you’re right that the substance of things can be dealt with in many ways. Many of the things dealt with in the constitution in one country can be dealt with through
legislation in another, and there’s no uniform substance to a constitution in that sense. You know, the key thing, if you’re trying to evaluate constitutional
scheme’s performance on some dimension, like the inclusivity of the political process, one need not look just to constitutions. I’m really making just the smaller point, which is that flexibility need not necessarily doom a constitution; that one need not have an overly rigid one in order to be maintained
for a long duration, or to generate veneration, ’cause if you go and you talk
with the people of Norway, they’re really into their constitution. They may not know what’s in it. They may not be able to read
the original Danish from 1814, but they really love it
and they care about it, and in some ways that’s
not the different from us. The Tea Party folks carry around
copies of the Constitution, but I’m not sure they really have read every single clause.
(audience laughs) I can’t imagine that they venerate all bits of the text equally, the $20 suits and such. (audience member speaks indistinctly) – [Audience Member] Tom, so let me just frame a counterfactual for you. This presentation is directed
to an American audience, and the question is, if we had a moment of constitutional choice, would
we make a different choice, if we cared about the evidence. Let me flip it around. Let’s say that you’re actually
in another country right now, where there is a moment
of constitutional choice, and the question becomes, “Is
there any particular feature “of the American Constitution
that has stood up, “that stands up in the
face of the evidence “as being something of particular value “that we would want to adopt?” The slide you put up there,
with the 120-year-old French citizen who basically
smoked and drank and so forth, that you juxtaposed against
the American document implied that the American Constitution has no redeeming feature at all. That can’t be your claim, right? – No.
– Or maybe it is. Is there some feature of
the American document, are there features that
have been validated by experience over the
last couple of centuries, that basically, other drafter
should consider strongly. – Absolutely. The first point, of course, is that by producing the first written constitution for a nation state, they provided the very grammar by which the whole enterprise proceeds, and have been extraordinarily
influential because of that, in both particular design choices, and broader principles,
like checks and balances, like separation of powers. These kind of things, these principles, seem to be ones which do
have maybe universal– very widespread popularity and widespread attachment to them. In terms of particular choices, it’s odd that judicial review is mentioned nowhere in the United States Constitution, and I’ve been somewhat critical of it, and yet it is something which I think we all do recognize
now, in the modern era, in one of potentially
rights-harming governments, is of great value, and one that’s a kind of contribution to civilization. Of course, courts around the world, at least until fairly
recently, until the rise of the German Constitutional
Court and others would look to the American
court as the paragon of exercising this important power. You do need checks; you do need
accountability institutions, and the Americans are the
ones who came up with that, so I certainly don’t want to suggest that we should avoid all
of Jeanne Calment’s diet. No doubt, some of those things are good in certain proportions.
(audience laughs) (audience applauds) (upbeat instrumental music)

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  1. The Constitution was written by a bunch of rich, white slave owners who wanted a government that would provide a stable environment so they could do business without too many worries and be in direct control of their taxation. That's what it set out to do, period. Then somebody said something like, "We'd better give these jerks something or we'll have another revolution" so they tacked on the Bill of Rights.

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