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tv   The Constitution Today  CSPAN  October 29, 2016 12:00pm-1:16pm EDT

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everyone loved cheerleaders, happy, pretty, pam westerned -- pampered and without worries. i was done. i walked to the end of the hall to jair's room. she was still unpacking and in deep conversation she had to take back to new york because they could not fit in the dorm room. no television or radio. to pass the time before lunch i listened to conversations through paper thin walls. she came all by herself.
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i know, that's so sad. she felt sorry for me. i couldn't take it. i focused on the green flower on my bed spread. my door was still opened and i didn't anyone to pass by and notice me crying. i sat there working hard to convince myself that i was going to be okay. to them i was a little girl from california, to me i was the girl who made it. [applause]
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>> thank you, nicole, for that beautiful reading. i love what you said by the love of black woman that we are all sustained may we all continue to be sustained. thank you all for joining us and again, nicole, we will meet you in the lobby for further conversation and book signing, thank you very much. [inaudible conversations] >> you're watching book tv on c-span2. television for serious readers. here is a look at what's on prime time tonight. we kick off the evening at 7:20 p.m. eastern with burt and anita, professors discus long friendship with a former death
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row inmate and at 8:00 subas reports on the 30-year relationship between first lady eleanor roosevelt and associated press reporter. at 9:00 p.m. eastern james rosen talks about a torch kept lit, collection of essays by the william. buckley and at 10 afterwords program. tim woo provides history of advertising and current use. we wrap up book tv in prime time at 11:00 p.m. andrew scott cooper looks into the last shaw. all ha happens tonight at c-span2 book tv. colombia university law
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professor tim woo and oriental is the new black actress dian guerrero. on friday november 8th, we are at the washington press club for 39th annual book fair and author's night. later in the month live from the miami book fair on november 19th and 20th. coverage includes author discussion and call-in programs featuring senator bernie sanders, fox news host dana parino and finalists colson. for more information about the book fairs and festivals book tv will be covering and watch previous festival coverage, click the book fair's tab on our website, book
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[inaudible conversations] >> hi. good afternoon, everyone. before we begin, because this is being recorded may i ask that you please turn off your cell phones and any other electronic devices. thank you. good afternoon i'm joanne meyers, i would like to welcome our members and our guests and c-span book tv to this public affairs program. our guest is renowned constitutional law scholar. professor's remarks will be based on latest book entitled the constitution today, timeless lessons for the issues of our era. in a election season with so much at stake, why turn our
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attention to the constitution to a document pinned so long ago but those long gone, the answer may surprise you as it is simple and direct. while candidates do matter, the constitution matters more. it is that one document which was create today watch over our government, limited power and protect individual rights. all branches of the government whether it is the president and his administration, the congress or the supreme court, they are all under the rulings of the constitution. in the constitution today, they bring the constitution to us and he does this by analyzing the real-time constitutional context of the last two decades and drawing our attention, for example, for the impeachment of bill clinton, the contested election of george w. bush and fight over barack obama affordable care act. he teaches us how to do constitutional law.
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in the popular imagination, there are two ways of interpreting the constitution, there's a conservative way which views documents strictly in light of the words on the page and the original intent of the founding fathers at the time of the signing of the constitution and there's the liberal way which feeds the constitution as a living text with room to accommodate and change over time. after today's talk i'm positive there may be a third and please join me in giving me a warm welcome to our guest akhil reed amar. i think she gave you an extraordinary account of what it is that we are going to be talking about today which is the constitution and its ongoing relevance. at a certain point early your than you might expect i'm going to draw you into the constitution because i like us
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to have a democratic conversation about the issues you want to talk about and i'm not so vain to think that the reason is me. i think the reason is we are all part of a constitutional tradition that is specially relevant at election time or presidential elections and maybe this precedential election more than just anyone -- any other election that i can remember since, believe it or not, 1864 and i will tell you why. it's such a significant electoral event and whether you know it or not, you all were drawn i think to this place to have constitutional conversation. before i tell you about 1864 in this moment, joanna i think got us off on just the right foot of
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reminding us about the beginning of the project. >> so i want you to take your mind back to what the world looked like a year before the constitution was proposed. constitutional was proposed in 1787, i consider that year, the year in which the constitution was deliberated on by the american people, hinge of human history. year that changed everything. there is in effect if you are looking at things from a secular point of view, there is bc and ad. before the constitution and after the document. so just -- [laughter] >> so let's take our minds back to -- to, let's say, 1786, the year before the constitution is proposed. you look across the planet and
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who governed themselves democratically outside of the united states? the articles of confederation are up and running. the war for independence has won, outside of america there's britain and switzerland and that's about it. even britain although it has jury trials in which ordinary britains can't participate and a so house house of commons that they still call because you need an annual income, a 600-pound sterling and a state worth 600-pound sterling in annual income just to occupy a seat in the so house of commons. but they have a house of commons but they have an elected monarch who doesn't merely reign but rules, she decides issues of war and peace. he hires and fires prime ministers at will. he has real power and no one
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elected him and a real house of lords that's hereditary and has real power, a genuine opera house and and you can earn your way to it. that's not their house but there's some self-governing in britain in 1786 and in switzerland but despite the time has no cities and has no banks, mitt romney is knot interested in it because there are more sheep than goats, sheep and goats than human beings, excuse me, in switzerland and they're largely self-governing because their neighbors leave them alone. you have to charge up a hill and when you get there there's not much else. that's it for self-government. and then in this year that changed -- that's not 1786,
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that's 1785 and 1685 and 1585 and all the 85's all the way back until the dawn of time there's practically no self-government on the planet. yes, there are a few ancient greek city states that make go democracy for five centuries before christ, you have athens under the constitution, and you have preimperrial rome and tinny little places much smaller than modern day new heaven, connecticut. they all speak the same language, they worship the same god or gods. they are not warm weather and cold weather people getting together. they are not multiple climate zones for that and they can't make democracy last for a long
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stretch of time and can't surmount and repel external attacks and they all blink out. and here is the history of the world from the constitution, the history of king, emperors, sultans and then we the people of the united states did an actual fact or an established constitution up and down the con -- constitution. if joe biden would say freaken continent. let's take india where my parents are born, when they are born in undivided india they have a british monarch that no one voted for telling them what to do and a british parliament that nobody told them what to do just like the america revolutionary is confronted, now
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it's a b with a b people across an entire subcontinent multiple time zones, a different climatic area, multiple religions, multiple ethnicity, multiple languages, as much diversity as all of europe and they govern themselves you see now with a written constitution and free and fair elections and multiple political parties that alternate in power and a rule of law and religious tolerance and equality and free speech and judicial review and where did that get that, those ideas from? they got those from the united states constitutional project. not just india, let's take western europe. france is a great republic, great democracy, almost as impressive as california. [laughter] >> i say almost because actually they don't have as much religious toleration in france, truth be told. they don't have as much
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linguistic diversity and even ethnic diversity as california, truth be told. you can guess where i grew up, california. but at the time of the constitution france was monarchy and not just france, you see, great republic today but all of western europe, italy, we could talk about germany, we could talk about eastern europe because a wall fell and i want to give credit to both republican presidents like ronald reagan and democratic presidents like jack kennedy who said that he was a berliner very famously but that wall fell and now we have democracy across much of eastern europe struggling to firmly entrench itself in hungary, poland, check republic and elsewhere, japan.
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it has a democracy today and that democracy, my friend, my claim is was made in the united states of america and by the united states of america and by the united states constitution which is not a text but a deed, a doing, an act, a constitute bhordian and establishment and that took place in 1787. we did the people did something and even the ancient democracies had never put their constitutions to a vote, one person typically, the law giver maybe claiming a pipeline to god in effect, hands the law down from on high, so long, the law giver and the british constitution it has never been a single text, institutions,
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evolving customs but never reduce today a single text that parliament has authorized much less the entire british people can actually read and vote on up or down. do you know why this thing is short? not so judges can make stuff up, coordinate people can read it then and now you can read the thing from start to fiction, it takes you an hour and you can decide who you're for or against it. if you're a farmer in new hampshire or an artisan in new york for that matter or anywhere else up and down the continent, it's pretty extraordinary and you can still read it, you see. that's why it's short so that you can read it and you have to make ongoing constitutional decisions they are called elections and come to that? just a moment, but you see even the ancient democracies had never put constitution to a vote. they didn't have democratic constitution-making procedures in 1776 the declaration of ib dependence not put to a vote. the new york constitution of the following year not put to vote.
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articles of confederation and preexisting regime not put to any popular vote. massachusetts does adopt constitution by popular vote and so does new jersey.
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and you're either with us or against us in 1776 if you're not basically on our side you have two choices, one, leaf or shut up but that's not the constitution of 1787 or 88. people opposed the constitution, vice president of the united states, clinton, justices on the supreme court, samuel, the people oppose the constitution saying, dude, you forgot the rights and they're the ones, the antifederalist who in effect give us the bill of rights, bottom up from this ratification process. what word -- phrase appears in more amendments than any other, the phrase of the people, the first amendment has the right of the people to petition and assemble, the second is the right of the people to keep them there. the fourth amendment right of the people to be free from unreasonable searches and see --
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well, now that you mention it, you know, we actually do have a few ideas and george washington you're pretty good but you forgot the rights. the constitution is crowd sourced. it's wikipedia because if you believe in democracy you believe that there is a common wisdom, a wisdom of crowds that maybe greater as collectivity than of any one individual even if the individual is a genius like ben franklin and that's the project that joanna invoked that we continue because you see it was deeply flawed in all sorts of way. we are about woman, what about
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slavery. so it begins the modern constitutional project that the project that changes the entire world in 1787, '88 is like a big bang and amendments make amends, bill of rights and the later generation will abolish slavery and promise birthright citizenship for everyone in america. presidential candidates who don't understand that birthright citizenship for everyone in america and we promised equal voting rights for blacks and we are not done because we enfranchise half of the population, half a century later with woman suffrage and if you don't think women suffrage matter, i have you three words for you, president mitt romney. he won without the men and without women suffrage you would have a different united states.
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mitt romney won with men and lost against women. there's a continuation of we the people of the idea that began in 1787, we got rid of poll tax and other things, so -- and we are not done yet but we -- we can't really know how to carry forward that project unless we actually understand it and that brings me to this book, the constitution today but i told you i would say just a little bit about 1864 and let me do that and then in the next five minutes we will start our conversation together. here is one of the reasons i believe you all came today. it's not just that you face a presidential election and that's interesting, it's not just that one of the two candidates this time around is very unusual. we haven't sign any one with just a profile, no government experience whatsoever including military experience. that's true of trump and it hasn't ever true of any elected
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president and the only nominee that came close in all of american history was windle wilky who hadn't actually done public service before. that's a political science way of saying, this is an interesting election that you have a candidate who is in distinctive in that way. it's not just that, it's that all four of the major branches of federal power are up for grabs. on a knife's edge. the house, the senate, the judiciary, the presidency all up for grabs and come january you can have president donald trump and if he wins he carries the senate and if he carries the senate he also carries the supreme court which is now poised between four republican appointees and four democrat appointees but if he wins the present seat and senate he fills
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the vacancy by justice scalia's demise and he win it is judiciary and almost impossible from a political science perspective if that if he wins presidency and senate and doesn't carry the house with them. that's one another possible world is that hillary clinton becomes president and she is not certain to carry the senate but likely to for similar reasons, she therefore gets the supreme court. i'm not sure she carries the house of representatives. she would have to win by 5 or 6 points nationally probably for that to happen and we can talk about why that's so if you're interested but it's possible for all four to be democrat controlled in january, come january or republican controlled. they're all up for grabs. that doesn't usually happen. as i cast my mind back, i basically think you have to go back to abraham lincoln in 1864 when all four of the branches, house, senate, judiciary and the
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presidency were up for grabs in play in that way. i will just say maybe one or two sentences about why that's so and then we are going to play a game together. so lincoln -- the two-party system, our two-party system goes back to 1860. in 1860 even if lincoln wins he's never going to control the supreme court because it's dominated by previous democrat presidential appointees. by 1864 the court is in play, the house is in play and matters whether you vote for lincoln or for mcclullan, narcissist businessman type. [laughter] >> he's from new jersey although he doesn't own any casinos and that matters, that election because everything is in play. but after lincoln wins, and on my way over, by the way, i walked over and i past that amazing statute of sherman.
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when he wins, his party chief is winning and so on and eventually the republican dominate the court that rare democrats who win in era have no chance no dominating the court. no democrat wins a majority after lincoln until fdr and this is a dominant political party before. that's how large lincoln moves in our story. eventually it's in play but by that time, the party overwhelming controlled congress. so that's really not in play and it really doesn't come back until gringrich revolution in
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1994 and then this is a particularly interesting election because it's up for grabs. and we the people of the united states are once again called upon for our input, just as we were in 1787-88 and in my view we can't discharge that duty. you don't just have a right to vote, you have a responsibility to vote. you don't just have freedom of speech to listen and even to listen on folks on the other side and you can't do any of that, we can't -- this constitution dies unless actually every generation reintroduces itself to the thing . and there's a reason i try to write this book, the constitution today for this season because i want you all to share my passion for the constitution and the way i'm hoping to do that is through a
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serious of essays that i have written over the last 20 years, each quite short an op-ed basically for the washington post or the wall street journal or the atlantic or time magazine or new york times, the la times or short op-eds about what i saw as they were developing over the last two decades as the most interesting constitutional questions around. constitutional questions about all three of the branches of government, about rights and about structure and i thought, let me put these together and pass them to fellow citizens and try to give you, my fellow citizens, a sense of what it is to actually do constitutional issues. you have lived through the cases and controversies just as i did. you remember sole -- some of
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these and i can help you think about those issues. here is the game we are going to play. i would like you to come up to the microphone and ask me a question about some important issue that has arisen basically in the last two decades. if i'm lucky i bet 500 or so, half of the things you're going to ask me about, there's some stuff in this book about and you're going to ask me about and -- i can say if you want more and for half that i don't engage, if i'm lucky i might say, it's not this book but here other things that you want to read on the topic that are relevant because you want -- you're here because you want to
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participate in the next chapter of this extraordinary constitutional story. so we have the first story. thank you. >> thank you. could you describe the constitutional ratification process in more detail? was this a popular vote? was this ratification by the constitutional convention
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>> especially elected convention was summoned into existence to decide whether to vote for or against the constitution. it wasn't a california-style referendum because that hadn't been invented yet. the swiss hasn't done it. and even if it had been invented, how are you going to deliberate on something as a society when you don't have the internet or anything like that or twitter? so a smaller group of folks are going to be specially elected to, basically, deliberate about the thing. and in that special election, that redo election, the ordinary property qualifications that that applied to ordinary elections were waived or abolished in eight of the thirteen states.
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so here are the rules in new york. since we're in new york, all adult, free male citizens get to vote for the ratifying convention that's going to meet in poughkeepsie. no religious tests, no property qualifications, no literacy tests, and those are not the ordinary rules in new york. for this one special election which we're going to decide the basic ground rules by which our posterity to be government, we're going to have a specially-broad electorate are. extraordinary free speech baked into the constitutional cake. robust and wide open. no one is censored, basically, in that year. no one dies politically in that year. think about that. think about how extraordinary that is even by modern standards. so i think those first words of the constitution are not just a
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metaphor, they're not being used star sarcastically, this we, the people of the united states, do, in fact, ordain the constitution were really cashed out in a substantial way. it was as broad a participation as was imaginable at that time. and at that time is important because women didn't vote, they had never voted anywhere in human history before, not in athens, no in rome, not in england. a few women actually did vote in new jersey, and that was phased out shortly after the constitution. but women not voting isn't quite news. it's old just like that old saturday night live joke about how franco is still dead. [laughter] it's not a great leap forward, but the women actually aren't demanding a right to vote. they will eventually, and that, actually, there's stuff in here on that story beginning with seneca falls and carrying through a conversation about a
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voting rights in the 14th amendment and eventually culminating in a 19th amendment that's going to be absolutely revolutionary. it's going to change, for example, the nature of the first lady. and i'm going to -- i tell that story. >> [inaudible] across the 13 states? >> each state decided for itself whether to join the constitution. no state was bound unless it affirmatively agreed. nine states were required to ratify. eleven initially agreed, so when george washington is elected president, there are 11 states in the union. north carolina and rhode island have not said yes yet, but then they later join. just on the women's suffrage thing, because i'm obsessed by women's suffrage because i think it's utterly transformative. abigail adams, you may recall famously says to john adams, remember the ladies. she's not asking at the time. it's a private letter between two people who love and respect each other, and john adams takes
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his wife very seriously, and she's an impressive political operative. she's not asking for rights to vote, she's asking for rules that will prevent husbands from beating their lives. that's what she's asking for. remember the ladies. women's suffrage wasn't even in play. but when it eventually happens, think about abigail adams for just a second because, you know what? women didn't suddenly become smart in 1920. they always were. but abigail adams has to hide her political intelligence in some ways because it's not going to help john politically, okay? and dolley madison is a political operative. and so is mary todd lincoln. and they have to hide it. women's suffrage comes along, and now eleanor roosevelt does not have to hide it, and she can appeal to a different group of voters, to the moderates, she can appeal to the crusaders. two for the price of one. and when you have the 19th amendment, that's going to give you franklin and eleanor, bill and hillary, barack and
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michelle. it transforms, for example, the whole role of the first lady so now presidents have two running mates who can succeed them. there's no way martha washington's ever going to be president of the united states, you see, or abigail adams or colingly madison. but, yes, it's actually possible that hillary clinton can be president of the united states or michelle obama, for that matter. that was not unthinkable, and that's all a 19th amendment story. it begins by letting more people vote than ever before at the founding, but then later chapters of this story carry it forward in time. and you need to know not just the story of how it began, but what's happened between then and now so you can figure out how to write the next chapter. and that how to write the next chapter is an election. >> just following up on that, let me ask you -- >> yeah. and do we need to -- >> we'll go to him -- >> they hear you? >> yes. you just opened the door. what do you think about dynasties then, you talk about hillary and bill? >> that's, you know -- and she's
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read the book, maybe a little bit so, but chapter one is the presidency return to dynasty, question mark, and i talk about all sorts of dynasties. so, and you see, donald trump is dynastic in that he inherits vast wealth. but let's just think in the modern era -- well, let me take a step. why -- and this is a story i actually tell in chapter one -- why does the president have to be 35 years old? and here's the answer. you have to ask yourself who could have the name recognition to get elected president at the age of, say,33? and the answer is, a famous son of a famous father. who is the prime minister of edge brand when they write that 35-year-old rule? william pitt the younger who's 21 when he's a member of parliament and 24 when he's prime minister, and he might be good, he might be bad. he's getting it because he has
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the same first and last name as his daddy, okay? william pitt, the elder, who was prime minister. and george washington is selected president in part because he has no children of his own. he says that, you can trust me because i've got no children of my own, no sons to succeed me. thomas jefferson has no sons, at least legitimate ones that we know about that bear his name. james monroe has no sons. john adams has a son. and his name is q. as in w., and he becomes president of the united states. and the framers were acutely aware of dynasty. part of the reason they were so freaked out about alexander hamilton, he was the person that was most feared. why was hamilton feared? because he's, in effect, washington's adopted son. washingtons has taken him under -- washington has taken him under his ring. robin to washington's batman or something like that.
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and there's even a conspiracy theory that circulates. it's an amazing one. have you heard the rumor? alexander hamilton's actually the illegitimate son of george washington. and the conspiracy -- and the people say, that's preposterous, you know? washington was never -- actually, no, washington was in the west indi sexer. yeah, three years before -- indies. yeah, he was in -- yeah, but have you seen the birth certificate? [laughter] he's the bastard brat of the peddler, and why is washington befriending this fellow? maybe he's two years older than he is because he's freakishly smart. maybe when he came to the united states he was 17 and not 15. and so -- not making any of that up. all in the book. now dynasty today, because americans have forgotten. you know the rule, but you don't
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know the reasons behind the rule. you say 35, why did they have that? what were they worried about? it's not just in 2000 we had someone who was the son of a president running and winning, george w. bush. he's also the grandson of a senator and the brother of a big state's governor who himself runs for president and who's on the other side? al gore whose father, al gore sr., actually was a leading political statesman. and we could talk about the governor of -- we could talk about the kennedys. i don't want to be partisan here. and not just jack and robert, senator from this state, and ted, but we could talk about the current governor of this state. not just whose father was governor who also spoke of the democratic national convention way back when. his wife, his first wife was robert kennedy's daughter, you know, jack kennedy's niece, ted kennedy's niece. we could -- if we picked another
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coast, we could talk about arnold schwarzenegger who isn't just a movie star in his own right, but was married to maria shriver whose dad ran for the vice vice presidency and whose uncle was president, and we could keep going, we could talk about the governor of california, my friend, jerry brown. i see some friends from yale law school class of '64, and his daddy was governor. same name, edmund g. brown, although less name confusion because his father was pat and he goes by jerry. now they're dynasties, and they're dynasty and they're dynasties. bill and hillary is not the same kind of dynasty because it's within a generation. neither bill -- hillary clinton is not related by birth or blood to bill. they find each other. now, if chelsea where to run, that would be dynastic. [laughter] and, indeed, the entire trump campaign seems quite dynastic because the main surrogates all have the last name trump whether
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it's donald jr. or eric or ivanka. and he inherits vast wealth. is vast wealth the same as political power? but i analogize in chapter one hillary clinton, i said, well, you know, she's actually common born, she and bill find each other. he's common born too. it's not actually that different than the political partnership that thomas jefferson and james madison formed together, sort of a batman/robin alliance. george washington with alexander hamilton. now, you'd have to add to that sex which complicates everything, all this. but this chapter one invites you to think seriously about many different -- is dynasty different if it involves gender? look around the world. dynasty has actually enabled women to achieve political power
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they otherwise won't have achieved whether that's queen elizabeth or indira gandhi or prime ministers in indonesia and the philippines, and benazir bhutto in pakistan. but now we're starting to think, in my view, some interesting things about the nature of political power in america and how the framers wanted you to folks on dynasty, and we're not -- focus on dynasty, and we're not sufficiently. good day. >> could you introduce yourself, please? >> hi, my name is abraham, i'm part of the colin powell program. my question for you is if you could clarify more about the 13th amendment, because from my standpoint it doesn't absolutely abolish slavery, it just redistributes it to the population. >> so you're the second person in the last week who's asked me
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about the fact that the 13th amendment, in effect, has an exception. 13th amendment prohibits slavery, but there's an exception for people who are duly convicted, and you're the second person to ask me about that. i actually don't have anything in this book about it, but i thought about it a lot, and i have some stuff in other work. here's one question, where did this exception be come from? it came -- where did the 13th amendment come from? word for word, the 13th amendment abolishes slavery, and it comes from the northwest ordnance of 1787. it's word for word for word the northwest ordnance of 1787. and again, the idea was there's no slavery except as a punishment for a crime of which one has been duly convicted. now, should we have chain gangs today? it's a real question. here's a related one that i do talk about. we have a prison population and
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they don't get to vote, but they're counted actually for certain representation purposes in these districts. and basically, in effect, the prison guards who often have -- reflect a rather different demographic to be very blunt in places like texas you have a lot of black folk in prison, a prison industrial complex, and they don't get to vote, but their bodies are counted in these rural texas counties even though they might come from urban areas. this is an issue in new york state also. for, to boost the representation of these rural counties that basically are overwhelmingly white and have, and vote very differently from how the prison population or their families might vote. and some folks have said this is like the new three-fifths clause
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in which blacks were counted, they added -- they padded the political power of the slavemasters who were voting, but the slaves themselves didn't vote. and i do have some stuff on the three-fifths clause but not so much, frankly, on whether we should have chain gangs at all. so it's an excellent question. thank you. >> peter russell's my name. more on voting rights. we're 50 years after the voting rights act. there are many reports that voters are being constricted, and they're get -- in their getting access to vote. as a layman, if i read the 14th amendment, i see that it says that the allocation of representation, representatives, members of congress to a state can be reduced if vote aring rights are denied. -- voting rights are denied. is there any applicability to our time?
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>> you are absolutely astute in noticing that the words "the right to vote" don't appear in the original constitution. and why not? in part, because of issues of race and slavery. but do for the first time appear in the 14th amendment, but not the part that most people have heard about, section one of the 14th amendment. they appear in section two of the. >>th amendment -- 14th amendment, and then that phrase is going to be repeated four more times in the constitution, in the 15th amendment, in the 19th which says no race-based discrimination in voting. the 19th amendment, the one that also obsesses me, that's the women's suffrage amendment, and the 24th and 26th amendments which are about no poll tax discrimination in voting and young adults get to vote. if you're old enough to fight and die in vietnam, you're old enough to vote. now, first of all, this is a pattern here, and we should read the constitution as a whole and understand what's going on. here's one thing that's going on. there's an interesting
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connection between war and democracy. why do un-propertied people get to vote in the constitution? ben franklin says they should get to vote because they fought in the revolution. why do black men get the right to vote after the civil war when educated white women didn't? because denzel washington is there with matthew broderick in the mt. 54th -- [laughter] fighting and bleeding, and people like him are giving their lives and limbs, and if you're old enough and you fight, you get to vote. that's one of the reasons why women's suffrage wasn't really in the air at the founding. in ancient greece you have to be 21 to vote. why 21? because that's the age at which the -- [inaudible] can bear his armor. and there's a connection you see between defense and voting. women are eventually going to get the vote with the 19th amendment in world war ii because woodrow wilson says they're supporting the measure on the home front, rosie the
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riveter, in effect. and in our lifetime 18-year-olds get the right to vote because if you're old enough to fight and maybe, you know, die in vietnam, you're old enough to vote on whether we should be in that war in the first place. so the founders didn't have a right to vote in their constitution, and you heard me wax eloquent about how extraordinary that project was for its time, but that's only the beginning, you see. and now we have five different clauses that affirm a right to vote, and the supreme -- reinforced by iconic civil rights and voting rights laws that people bled for, died for. john lewis got his head cracked open for. and, yes, i'm deeply disappointed that the supreme court gutted huge, a huge part of the iconic voting rights act of 1965 in a case called shelby county which is discussed here and in other places. and the founders didn't have a right to vote, but we do in our constitution in five places, and we have to read them together and holistically and also alongside iconic pieces of
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legislation like the voting rights act. and, yes, that is under assault today in various places. and it's unfortunate because ordinary voters don't believe generally in suppression. some incumbent politicians do because high turnout sometimes tends to favor one party and be disfavor the other party, and the party that's disfavored tries to suppress it. and then i think you know which party i'm talking about. and they didn't used to do that. voting rights act of 1965 was passed, yes. lyndon johnson as a democrat pushed it through, but a lot of democrats voted against it, and a lot of great republicans voted for it because they understood they were the party of lincoln. what party put those words in the constitution the first time? that would be the republican party in section two of the 14th amendment and then again in the 15th amendment and then again and again. and i keep waiting for that party to remember its best self. and, yes, voting rights are under attack. if someone asked me about the
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electoral college, i can connect it still further. i hope i've been somewhat responsive. >> hi, good evening. my name is christopher lewis, majoring in -- [inaudible] law and i am bringing -- [inaudible] a little bit closer to recent events. as i said, i major in pre-law. not too long ago i was taught that the fourth amendment give every citizen in this country certain rights against unreasonable search and seizure. >> yes. >> and if unreasonable right -- sorry. unreasonable search and seizure occur, then there is exclusionary rule that takes out any evidence that was obtained. however, in june of this year the supreme court ruled on a case -- >> utah v. street. >> yeah.
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says that legal evidence that obtained can still be used against someone with unreasonable -- >> perfect question. thank you. fourth amendment which provides for right against unreasonable searches and seizures, says the right of the people to be secure in their persons, houses, papers and effects against up reasonable searches and seizures shall not be violated. and then it has some other language about warrants and probable cause. and so i told you all this is an experiment, so there's really not very much on chain gangs. oh, but there's a ton on the fourth -- there's a lot on voting rights, and there's a ton in the new book on the fourth amendment. maybe more than on any other topic and some of what i say the liberals are going to like, and some of what i say the conservatives are going to like. so according to the constitution, as i explain in great detail in some of these essays, there is not a right to
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a warrant or even probable cause or even individual suspicion every time you are intruded upon. think about metal detectors at airports. there's no warrants, there's no probable cause, there's no individualized suspicion. why are those okay? you put your finger on it, because the constitution actually doesn't say it. it says the right of the people to be secure against unreasonable searches and seizures. now we have to figure out what makes a search or seizure unreasonable. and we have to figure out the constitutional values behind the fourth amendment just like we have to think about what -- why we have a rule about 35 years old or what's behind these multiple provisions on the right to vote. privacy is one of the values, they single out homes above all other buildings because homes are a private space. they protect people's persons, their bodies because that's, you know, a particularly sort of intimate space. but if it was only about privacy, we should have as few searches as possible in airports.
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we don't. we search everyone, and i love it. you know why? because they're not just searching people who have dark skin. people who look faintly arabic. misery loves company because there's an equality value also. and if everyone is searched or seized, well, that's a little different. and if they're too aggressive in general, then politically powerful people will start to complain be because they're or being intruded upon. why are metal detectors at airports different than stops and frisks, for example? well, for one, everyone goes through it. it's not as intrusive as a patdown, typically. it's pretty justified because people really did hijack planes and fly them into buildings. the same people that are being intruded, that is every passenger, is also a beneficiary. we're on both sides of that transaction. stop and frisk, some people in the community who look a certain way are more intruded upon for the benefit, maybe, of other people who don't get stopped and frisked at the same rate but who
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are maybe benefited by a robust police -- so now we're beginning to talk in interesting ways about what makes a search or seizure unreasonable. if it's unequal, if it's discriminatory, if it's more intrusive than necessary, if it's overly enjended. if you go to the tsa, men never pat down women generally. you see, i'm quite interested in these -- if it's legislatively authorized. if the same people are being intruded upon are being benefited, that might make it more reasonable. i have several essays, actually, about how to think about the fourth amendment. now, here's a very controversial thing that i say. the exclusionary rule, so-called, the rule that says if the cops -- fourth amendment, you have to toss out the evidence is completely and totally made up. it's not in the constitution. no framer believed it should, it was in the constitution. no court in america for the first hundred years ever excluded evidence, and it's actually a bad idea.
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it frees the guilty, it doesn't actually properly protect the innocent. all sorts of ways. them's fighting words to lots of folks, but i defend that proposition. one of the blurbers, my very dear friend whose agent is actually with us today, alan dershowitz, says the following, you know, no one's going to agree with all the ideas in this book. i, alan dershowitz, couldn't disagree more with professor amar's opposition rules. so if you want a book that's just going to reaffirm be all your liberal prejudices, this isn't for you. you don't want to pollute the jury pool because there are a couple more questions, but i say, actually, we need robust protections for innocent people. right now, for example, suppose the cops know you're innocent but they just want to hassle you because of your race or your politics? well, if the exclusioning their
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rule's the only game in town, it's open season, because they can do whatever you want. they're not going to find any evidence. we need remedies for innocent people, and i talk about what those might be, class actions, other things, we need community-based policing involving community review boards to make sure the cops -- oh, not just who's being searched, but who's doing the searching and seizing, and do they look like the community, or do they look like an alien occupying army? civilian supremacy is a deep principle in the constitution, and it applies to a paramilitarized police force today. so the fourth amendment is a very great amendment. it uses those words the people, the right of the people. it came from the preamble, and there's lots of good stuff about it. please. >> sandra stein. i have two questions, if i can -- >> please, just one. we're running out of time. >> okay. the first one is that -- and the only one -- [laughter] is about the whole concept of original intent. >> yes. >> it always seemed to me like it was a canard because the
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society we had when the constitution was first formed is so different. we didn't have the power of tv in a political campaign, food and drug, etc., etc. or the gore decision, we didn't have anything like that in the constitution. so since our society is so different, i think this original intent is just used. but it would be impossible word for word to have a society like the original constitution. >> question mark. yes. so i'm more a defender of original intent than is, perhaps, conventional. you might associate original intent with conservatives like antonin scalia or clarence thomas or ed meese or robert bork. robert bork was my teacher. there's actually a remembrance
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essay about him. the greatest originalist textualist in modern supreme court history, in my view, the greatest justice of the 20th century was a liberal who always carried a copy of the constitution with him wherever he went. i've got several right here, and i could pull some out of my back pocket. i usually have -- [laughter] here's one, here's two, here's three. there are more where they came from. and this fellow, justice on the supreme court -- here's another one -- [laughter] always carried a copy of the constitution with him. crusading liberal, fdr's first appointee to the court, his name was hugo lafayette black. i told you what the world looked like in 1786? here's what it looked like the year before be he came on the court, and it was a bad world because we weren't taking seriously stuff that really is in here. there's no judicial protection for the right to vote. and today there is, not robust enough, but there is. a lot. the bill of rights has never
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been applied against the states basically as a general pop proposition,only against the federal government. there's organized sectarian prayer in the public schools. free expression has never won, and jim crow prevailed across much of america. hugo black comes along and says, now wait a minute. it says equal. and apartheid isn't equal. and it says the freedom of speech, and the freedom of speech should mean the freedom of speech, and it says the right to vote again and again and again and, by god, we should enforce that because people died for i. and it says, actually, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states. the bill of rights should apply against state governments, and it really does say you have a right of counsel, and that applies to poor people too. poor people might be innocent but they can't prevail unless, actually, they have a lawyer.
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so this document says you have more rights than are listed. that's what the ninth amendment says, the 14th amendment says, but never fewer. so i want us to know what the original intent behind certain provisions are even if it doesn't bind us. we would be foolish not to know why they put it in here because we might be repeating mistakes that they actually bled to fix. since i mentioned my friend alan dershowitz before, he writes a book that says rights come from wrongs. mistakes are made, and then the corrections are inscribed in the document. even if it doesn't bind you today, i would not want you to be unaware of why they put stuff here. and in my view, if they put a right in the constitution, we enforce that right. we might enforce more than that right because they say they're unenumerated rights, but we should never enforce or --
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[inaudible] the most important thing i've gotten out of this is i'm going to read my little copy of the constitution that i have at home -- >> good, progress. >> that's what we should be doing. two things come to mind. one is that -- and maybe this isn't a question about the constitution, so i -- but i'll ask it anyway. obama and the use of executive order. president obama. i know that's not in the constitution, but it's an issue. the second if you don't want to answer that because it may not -- issues have come up in the last two decades, let's say. what about impeachment of, the attempted impeachment of clinton and i think johnson wasn't it? >> okay, perfect. i'm not going to talking a lot about executive orders because we'd need to go into lots of details. but there are ten chapters in the book, one's about criminal procedure from o.j. to dna, but one's all about the clinton impeachment.
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and my bottom line about the clinton impeachment was that it was a partisan impeachment, and that's the problem. maybe he should have been impeached and removed. i don't actually weigh in on that particularly. what i do say is the constitution requires two-thirds of the senate in order to convict. ours is a two-party world. in order to get two-thirds, people of both parties have to agree. if you're going to undo a national election, you should only undo it if the people who supported that precedent or their political leaders basically want the person out. nixon actually, on that standard, was justifiably forced out because republicans decided that what he did was wrong. barry goldwater had turned against him. howard baker. and so it was not a partisan witch hunt. republicans and democrats agreed that nixon's misdeeds really did rise to the level of high crimes and misdemeanors. democrats never agreed, whether
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rightly or wrongly, democrats never agreed that clinton's misdeeds rose to that standard. and what i said is it's basically a misuse of constitutional power if you're doing certain things when, actually, you're never getting the other party onboard. you need a buy-in of both parties to undo a national election. that's the fundamental -- one takeaway point among many in that expecter. there's lots -- that chapter. there's lots if you're interested. >> could we just take these two questions? >> great. two last questions. >> we've been at war since 2003, thousands of soldiers have died since 2003. >> yes. >> the constitution provides that congress shall declare war, but congress has never declared war since 2003. what do you think about that? >> i discuss it in other books, not so much in this one. i do want to tell you one thing about that. in all of american history, we'ved had really only a hand -- we've had really only a handful of declared wars. they are the war of 1812, the
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mexican-american war, the spanish-american war, world war i, world war ii, i think's it. i think that's it. many wars have been legislatively authorized but not by things called formal declarations of war beginning with the quasi-war against france under john adams. and so a president needs to have congressional support. only congress can create an army, only congress can fund an army. but the way in which the president needs congress' support given 200-plus years of american history need not take the form of a formal declaration of war just because that's not how we've done it in america and for have are around long time, really in effect going all the way back to john adams, for example, and what's called the quasi-war against france. so it's a great question. i have some stuff on the war on terror in general but not so much on -- so what i do say is if you're going to do all sorts
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of surveillance, congress has to be involved. so my big idea, yes, congress needs to authorize all sorts of things. executive branches shouldn't come up with all sorts of principles, all sorts of things that threaten civil liberty unilaterally. so there's lots on that in the new book, especially about surveillance. but i don't really weigh in about whether congress has to do something that's formally called a declaration of war as opposed to, for example, the authorization of the use of military force which was a statute that was, in fact, passed by congress. >> last question. >> last question. >> thank you, professor. my name is -- [inaudible] i'm a scholar at the city college of new york. welcome. really moved by your enthusiasm for this living document, and i'm glad to be here in person to see all of that. but here is my question. so you mentioned rights and responsibility in your opening statement. >> yes. >> it is one of the political rights of we, the people. >> yes. >> so it becomes problematic
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when say, for example, congress doesn't fulfill their responsibility of getting the nominee of the supreme court to be confirmed. >> ah. >> and -- >> good. >> -- what we, the people, can do or must do to move the hands of -- >> good question. >> -- our own people who might be stalling the progress of our democracy or wherein there is a great -- label if there is no election. what can we the people do about that? >> perfect question on which to end. the scalia vacancy, the garland nomination, there are actually two essays on merrick garland's nomination. here's my view. and a lot of times the views that i describe, that i put forth in the book, my constitutional analysis is different than my personal political beliefs. i like merrick garland.
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i think he's a great man. i'd love to see him confirmed. i do not, however, believe that the senate has a duty to, that they are breaching in some very super-strong sense by not holding a hearing, because the constitution doesn't mention hearings. they don't have to hold a committee vote, because the constitution doesn't mention that. they don't have to hold a floor vote. and be by the way, even if they did, they could vote no which i wouldn't want because i want merrick garland confirmed. so when the constitution imposes a certain kind of duty, it often does so. when the house and senate have passed a bill, the president has to act within ten days. and they could have said whenever the president sends up a nominee, the senate has a certain number of days, and if they don't is ask act -- and the constitution doesn't say that. i want garland confirmed and i think, actually, it's very unfortunate that he hasn't been. but not because they are,
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strictly speaking, my republican friends in the senate are violate aring the constitution. violating the constitution. now, let me make the best case for them and then what should we do. here's the best case for what the republicans are doing. they say, yes, barack obama won in 2012. but we, republicans, won in 2014. we took back the senate, and our constituents sent us to basically thwart his plans. especially anything that he might try to do to project his visions for the future. half of us were elected on, basically, a one-word platform, no. the other half of us republicans were elected on a two-word platform, hell no. [laughter] that's actually what our constituents sent us to do, and that's what we're doing. no and hell no. he won 2012 -- i'm trying to actually really understand what they're saying. he won 2012, we won 2014, it's a standoff. let's let the people decide. we're going to have a tie-breaking election.
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and if we, republicans, win then we're going to put someone else in that vacancy. and if democrats win, they'll are a freshman kate. -- they'll have a fresh mandate. that's not a pre postrouse view. i said earlier, in effect, that all the branches of government are on the ballot. our constitution's designed so that presidents and senators pick judges. and the people get to pick presidents and senators. so this election is our chance to weigh in on that. i don't think that presidents should pick justices, but justices never pick presidents. that's why bush v. gore is a disgrace, and i have some essays on the disgrace that is bush v. goer gore. i'm coming to a close now. the basic thought here is we, the people, actually are going to, in effect, have a referendum on that open court seat. and if you want garland, you have to vote for hillary clinton
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and republican -- excuse me, and democratic senators. and if you don't want garland, you have to vote for donald trump and republican senators. i had one suggestion that i put forth that has not been adopted. i said, listen, if this election is a referendum on the court, why not have the hearings now? let garland make his case. let his supporters make their case. let his detractors explain why they actually don't think he should be on the court. let's use this as an opportunity, because we do have an election, to educate the american citizenry about the court and its future. and if we do that and if hillary clinton wins, we can confirm him in no, and now -- in november, and the supreme court won't limp along for another term short staffed. that was the solution i put forward, it was not accepted. [laughter] but here's what i'll say just in conclusion. my constitutional views are different than my personal views. i'd love to see him confirmed
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immediately, but i can't stand up and tell you that the constitution requires a hearing and a vote and a yes vote. let me say one final thing. this issue did come up not so recently -- not so long ago. an ideological president in his last year facing a senate dominated by the other party, ronald reagan in 1987, he's as conservative republican as obama is a liberal democrat, and he faced a senate of the oppositional party, and we got anthony kennedy who the republicans could agree on and the democrats and who was the one person most on the supreme court who sometimes votes republican and sometimes with democrats because almost no one else ever crosses the aisle. i think the republic has been well served by anthony kennedy. my own view is that garland is like that. the republicans would like him. he'd be their favorite democrat,
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a kind of joe lieberman-like person because he's not, he's not a bernie sanders socialist. he's a person of great distinction and moderation. so i, i wish the republican senate had done for him what a democrat senate, led by joe biden and others, then-senator biden, did for anthony kennedy. they didn't. i wish they had. ours is a more polarized time. i actually talk a lot about political polarization in the book. but what can you do? you can vote. >> and we, the people thank you for -- [inaudible] [applause] thank you so much. [applause] [inaudible conversations]
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>> every weekend booktv brings you 48 hours of nonfiction books and authors. and here are some of our programs for this coming weekend. today at 2 p.m. eastern, it's the eighth annual boston book festival. the free festival promotes a culture of reading and ideas and features a number of authors and oh literary presenters -- other literary presenters from around the world. this year's panel includes a discussion on the how future of literacy. sarah gridden, author of "rolling blackouts," as they take a look at the impact of cartoons in nonfiction books. and author james glick with his book, "time travel: a history." then at 9 p.m. history, james rosen and christopher buckley discuss their book, "a torch kept lit: great lives of the c


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