tv After Words with Senator Mike Lee CSPAN June 18, 2017 9:00pm-10:01pm EDT
mike leigh recalls the forgotten early american figures that fought against the large federal government in his book written out of history. history. he's interviewed by the former acting solicitor general. you've written this incredible book. tell us a little bit about why you wrote it. >> guest: i'm a big believer in the founding generation. when the broadway musical hits hamilton, i was pleased with how popular it became. i wasn't entirely surprised. when it first went to broadway i
thought it might do well because there is a certain longing for an understanding of it and they understand they had a few things figured out. it wasn't a utopian situation figured out by any means but there were interesting people that set in motion the government that would last through the ages and foster the civilization the world has ever known that a lot of the areas had been lost by attrition that is not neglect in others and more deliberately in some cases so i want to reconnect people with some of our forgotten founders. i haven't seen it. it is worth seeing because the key word in what you are saying
hamilton makes clear the founders were people and that is what i see in your book asell is a lovely rendition of smany different founders. you also have what is most remarkable to me you have full chapters on these people and i think the first question is how in the world did you have time to meet you for a sitting united states senator and it's not just founders like everyone heard of but people that nobody heard of today. >> i have a lot of pent-up emotion when it comes to the separation of powers.
my job dovetails and i'm always on the lookout for good stories. when i find a good stories i like to write about them. >> ho >> how does a story like this come to you? >> they come to you gradually. there were other people i knew that bob should get more credit then they get and in that case, this is who understood the principle of federalism because they lived it for centuries before they were our own country. i was intrigued by that because it isn't a name that most americans know anything about and he had a profound impact.
benjamin franklin was the conduit for which the information flow to the rest of the founders. one of the top supreme court advocates and the father of the modern supreme court bar. is there an influence from him in this book? >> guest: we would talk about things like federalism and separation of power around the dinner table and i would realize not every family does that. i think they should. it makes for interesting dinner conversation in our home. my dad used to say there are two protections that are as important as any other feature
and one is vertical and because of federalism and one is horizontal. it's what federalism means and the separation of powers or different. it distributes power and vertical access meaning it organizes the balance of power between the federal government on the one hand. the default proposition that most powers are going to be at the state and local level. it articulates the powers that
are for the most ardent section eight of the constitution. they allow the process to provide for the national defense of section eight. it is necessary and proper. you can't have the armed forces unless you know how to take care of your veterans. anything that isn't allocated in the constitution is supposed to be reserved to the states or the people. >> host: a lot of states right now are legalizing marijuana. is that something that the founders would have said should be left to states and the
people? >> as a matter of first principles i think deciding whether you are going to allow a particular treatment or a particular pharmaceutical product for example especially if it can be produced and sold entirely in the state in question the state ought to have the power. they've come up with a comprehensive regulatory scheme if we were to return to the first principles we would contemplate a system which each state could decide for itself whether to allow that or any other treatments. >> host: one is to prevent the federal government to allow the people to decide the legalization of marijuana? >> guest: that is the logical conclusion one would reach. it doesn't mean we can do it abruptly or ignore the federal
law. but taken to the conclusion that an amendment and the principle within the constitution as a whole contemplate a state ought to be able to decide that and i would phrase it slightly different than you did. it's a metaphor of the states have decided. the people get to decide that at the state level and that is what the constitution does. the product can be combined in a state lines and moved to the book. if the state wants to do if he h taken to itiftaken to its logicn of federalism would suggest yes. it would also suggest whenever something is moving in the
commerce. if it is within the state bound and so on, then the constitutional view is as a matter of state entity that is in regulation. >> host: let's talk about the first principle. people do care about the stuff don't learn from some of these, so who are your favorite people in the book that talk about that you want people to know about? >> guest: i like the story of luther martin he was the original federalist most people don't know much about him. he was an interesting guy and was drunk almost all the time and was a successful lawyer, started in virginia, went to maryland and then became the longest-serving attorney general and was also a delicate to the constitutional convention.
he was so notorious for his drinking that one of the clients demanded as a condition of the agreement between the client and lawyer that luther martin refrain from drinking throughout the representation. soap luther martin got around this by taking a loaf of bread and then eating a piece of the bread whenever he felt as a lifelong mormon that doesn't drink i find this quite curious. but luther martin foresaw the fact that the constitution might end up producing the system in which there would be a dominant federal government that would be wrote upon the rights of the individual americans to be governed as a more local level and i think that he was ahead of his time in this regard. >> on the first page of the chapter that is so engaging and fun to read i think in a way that a lot of history books are
not, so i recommend the book as a whole luther martin was upset about the philelphia convention being closed and that of course has been celebrated as one of the great things that 59 men walk into the philadelphia convention on a hot day in may 1787 and closed the doors and don't leave for three months so they debase everything. and because it doesn't leak, they can have a full and fair debate and then they tell the constitution to the world and have ratifying conventions and so on. they have the privilege of serving in the senate for a while and do have closed hearings for various things also close all sorts of classified information.
it goes against what we feel is the natural command of good government yet i understand why they closed it. you are right about suggesting this couldn't have happened and it wouldn't have turned out the way that it did had they not closed it. i can't criticize luther martin or raise the concern especially the way i view things i would have been critical about that decision. it doesn't mean i would have been in that instance the document they produce is good. >> host: wt is your view on the governmen government secreco you think that they have it right everything you do should be in sunlight? >> i think the legislative demand is the transparency that we typically have. we have classified the proceedings and hearings where
the classified information is being discussed. i do worry sometimes that there is an overclassification phenomenon that can occur especially with some hearings. i've attended some hearings that have been scheduled for the classified setting that were deemed unclassified where little if any gets discussed and it makes me wonder at times whether those that are scheduling it wants to keep the press out for their own convenience. >> host: have you ever thought about using the argument with your colleagues and say what are we doing here with these classified hearings? the founding principles do call for openness and obviously there are some needs to try to push a little bit.
>> not only have i thought about it i've spoken to my colleagues and onin one of the things i fod frustrating as there've been a classified annex to the position i would say okay. one time i was just finishing reading through that piece of legislation and said i guess that's about it. okay show me the annex and i said i can't show you that. because it is classified in a way that doesn't allow you. >> to float on something that has an annex i'm not allowed to see. this is deeply troubling to me. later explained to me that there are legal nuance is to this. i've had other people explain to me technically that isn't the part of the legislation that is analogous to the committee's report but regardless i found it
troubling. >> host: one of the other things you do this clerk for justice alito. the court has come under some criticism for not having cameras in the courtroom and it's almost the functions to those that like a secret body. they have written opinions in the way that he passed the legislation, but the process is only visible on any given day. my math might be wrong but it's not a dramatic number. within the luther martin principles favor the kind of web stream oral argument or something like that of those principles counter in favor of the cameras for the courts doing its work? >> guest: possibly. most of what happens is an open public process in that briefing most of the arguments as you
know better than anyone consists of the briefings that are submitted and then you have an oral argument and the transcripts are available to everyone can see it. i don't think that it is up to me to tell the article three branch the supreme court held to manage its courtroom in the sense that i don't think it would be appropriate to pass legislation requiring them to have cameras. that said if they allow c-span or other cameras, i would be thrilled. do you think it would be right
obviously i understand that respecting constitutional boundaries. you're not going to pass legislation. but the branches gave each other advice all the time and they are not shy about giving you a bonus exactly, that would you be able to sell the courts on that regard? this althey sold away the argume actually handled and i think they would be encouraged they may not agree with the outcome of the court's deliberations in every instance and even though they frustrate me i would hold up to the counterparts anyway anywhere in the world. >> and i think the american people would be thrilled to see how it works to see the caution of care that is put into each and every argument. >> host: let's talk about another one of the founders in
your book. some people know about it as you see from hamilton, but there is so much else to this mans riches story that brings about. >> even that story is interesting. he became the sort of defender of the little guy of those that face impeachment trials and facing impeachment trials. they were facing a trial in the senate and they could be treated
fairly with regards to the due process rights. in part because of that and thomas jefferson continued the ongoing political threat as a rival presidential candidates during the second term in office when he was no longer the vice president was prosecuted for treason and this was a capital offense that would end not only his political career but his life. >> it involves him conspiring and bringing the troops to mexico >> guest: general wilkinson had a letter written in code.
one of the things that was shaky about the evidentiary area foundation of the case against aaron burr involves a conspiracy to overthrow the government and was pretty wild. there was a far-flung conspiracy and jefferson pulled out all the stops and engaged in a hyper aggressive prosecutorial behavior. it has a high standard for proven treasons. so he was able to save his life and avoid a conviction for treason. but this shows the high price of those that fight against the government and also shows something very important. thomas jefferson is the one i respect a lot and i think most do. he was the author of
independence. the modebut the model of wisdomf the genius of the law of architecture and science, thomas jefferson had in his hand on the united states having this political heart had to be kept in mind because powers of the government are dangerous. >> but of all of the genius isn't that the most central as madison understands in federalist 51 particularly when they are in power that is when you will have problems, and that why you need the checks and balances in the book for the horizontal and vertical constraints on power.
your book celebrates aaron burr for a couple of things in particular. one is this idea that he is attacking jefferson for trying to aggregate the power to interfere in the prosecution and basically launch a prosecution against him. obviously today and literally today there's there is a debatn about the president interfering with law enforcement investigations. what do you think that aaron burr would say, and i don't have the facts but at least literally be justified as we are doing this interview saying the president ordered him to drop a criminal prosecution in the national security adviser. advisor. if you think back to what you're celebrating what do you think that says? >> at any age to make sure you
are vigilant in protecting the separation of powers to make sure you watch over all restrictions on government and in the constitution which after all is the only reason to have the constitution or any other. they can tell us to watch that in this age and any other age. regardless of where people fall on their views of this presidential administration, i think everyone should be able to agree that it is a healthy thing for people to make sure that the government power is being exercised properly. >> host: okay. >> guest: as to what is going to have been in this case i don't know. we have jim comey in the committee a few weeks ago and he testified quite clearly that he has never seen political pressure brought to bear in any particular investigation. and the senate intelligence committee last night he publicly released a written statement i
amtill trying to reconcile the statement as a whole lot of questions that come to mind and i know he's being asked about them even as we speak until i see that testimony. >> host: maybe i will move this slightly differently than in this particular case but the other thing you celebrated about aaron burr is this idea that he stood up for the independent judiciary and the so-called judges or things like that. what do you think that he would say about that? >> guest: very different than going after the chief justice. criticizing might not be something that we would do as
officers of the court. it is very different as they have been going after the job of the highest church rest of the country they were understandably concerned about what jefferson did and the need for the due process rights. >> host: why is she in the book lacks >> guest: a prominent playwright and commentator of the revolution era and she was also a friend and a protége of john adams.
it is a shouting match against a stationary for a long time about the constitution. john adams had a lot of authorship in the constitution. they need this monarchy that could produce some of the same externalities that we saw in the previous government to fight the war to revolt against and then from which to declare independence and so she and adams had this staff that lasted for a long time in the book we were able to resolve the differences for the rest of their lives.
but without a lot of conflict between them. >> host: the point was let's say these monarchical tendencies in the documents i'm really concerned about it and foreign policy was a big part of that. so, after the constitution was ratified and obviously it is the president and commander-in-chief in power but they did put the congress in article one and section eight to declare the war to capture the arme armed forced all sorts of other things like that. how do you reconcile that we've been in hundreds of the conflict since the founding and there's never been a declaration although the five times but not since world war ii. >> guest: i struggle with that. i struggled with it a lot
because people can disagree about when you cross a deadline or when god is great military action has the power to order what time they will play they can move into this area of about. at some point you cross the threshold for the military personal now and the war. i think you cross over into that as soon as you get the u.s. military personnel taking the action on the foreign sovereign soil. i think the incumbent government of that to me that is the war and once you've reache you react you than meets the act of congress.
>> host: it's what we are saying about the tendencies and then you think of the fact that almost every president since the constitution was written has put troops on the ground and other places and it's been 200 plus times. there is the need to revitalize the role in this space and that does seem consistent in that principle. we could disagree a little bit. and you don't have time to get the congress together. the president has the unlimited emergency power. think about the shots fired on fort sumter.
essentially in harms way on the ground. >> guest: it could also be injecting equipment into the area even if there are enough boots on the ground that they might still be at war. >> guest: writes now they carry around a nuclear football anas i understand they can tell that officer to launch and in a few minutes the nuclear weapons will be launched against the government area of those that concern you and is there something they should do about that to make sure that before that happens the congress was consulted and the declaration has to be passed? >> guest: it is deeply concerning the fact that we live in a world where this kind of danger exists and that this many people could die from a military strike is deeply concerning. we have as a society made a determination that we want to leave some areas there because we don't want unduly to hinder
the ability of the commander-in-chief to defend the united states. i understand what you're saying. i have yet to see a formula that would leave people satisfied the president was protecting us if in fact what we are talking about is it's never, ever made the president used weapons until such time as congress was able to convene andoat that into law. i think a lot of people word, that said there is an idea that comes along and -- >> host: being able to retaliate and there's all sorts of reasons why you want out beforehand but let's just say no first use unless you've got the approval of congress and doing
so is to protect the united states against the imminent attack and an imminent threat of some sort or another. that would be consistent in the spirit of the war powers resolution. >> guest: it took about another person accused of a break in the book and i'm sorry if i am mispronouncing the name. what the law in the book is that you produce is the five-year us should be bound together very strong and each child represents one nation as the five are strongly bound this shall symbolize the complete union of the nations, thus our those united completely together united into one head, one body and one mind.
this symbolizes throughout washington and in other important buildings. you will see it in europe a lot as a bundle of sticks bound together usually and it symbolizes that we are stronger than the sum of our parts. and the iroquois understood this better than when we became a nation. they understood it well in their ability to protect themselves from those that harm fro would m the outside and it would be greater if they banded together. one of the secrets that worked wellor them is that they would still leave the internal governance to each tribe so that the confederacy as a whole didn't meddle in the affairs and the fact that there was this understanding produced in the outcome that was good and as i
pointed out in the book it didn't create a utopia i don't want to overstate the point but it did create a successful confederacy. this is something that we didn't learn from our british predecessors. this isn't something that came to us from england were so many aspects of the constitution. this was somewhat uniquely american. you have the talks that they provided that it was helpful to have another example. this is something that he
understood it could really help us. it's benefited a strength as the country we are a rich cultural political diversity. geographically, economically there are differences and those differences are able to produce a form of government that allows more pple to get more of what they want and less of what they don't want to the extent following. >> host: tell me if i've got this right to try to bring the founders of the modern day so we have a debate in the country.
we have a disparate country with different views on this that should be resolved in the state level and the national supreme court level into the judicial powers should be done on a kind of state-by-state basis. they are not rendered federal indicia be decided at the state level. >> host: yet you also have in this view a celebration against the government control over people's lives. isn't it also true in the state level some of what they are concerned about. the consequential choices we make in our lifetime why should the government have any role given to people that you are celebrating?
>> guest: but it's a fair question i've raised in the past with officials. for a very long time it was a part of our society because it was a religious ordinance and needed to be a decision i raised long before the case ever came forwd. but it's a fair question of why the government needs to be involved in the first place. once they do become involved in it, the constitutional questions develop and one of those questions is which level of government. that particular question has now been decided by the supreme court. but the argument in the other direction is if it isn't federal committee does not meet federal by the constitution than it thet belongs to the people to decide at the state level. >> host: or it is decided that no level. i'm curious how do you decide if
you are a constitutional scholar how do you decide when it is that third box and state versus federal in the allocation pretty well but what about the stuff that is the bill of rights and no government can do for the searches and seizures and establishment of religion, what about marriage and how do we figure out whether the constitutional principles prevent the government at all from dealing with that particularly when there is a quality concern? >> guest: this is where the federalism and they've bill of rights can be said to intersect. when you diffuse the power or make the decision that governs the entire country then you bolster the government going back to the bundle of arrows we talked about a minute ago it is a strong bundle and it is much more difficult to break wind power is more diffuse into the decision-making authority is
less than a more local level, people can break through and make changes and they can move forward at a state and local level when people see that something has worked in one state to another state might follow it. there is no easy mathematical formula to answer the question you're asking. i completely understanthe question but it has to be handled on a case-by-case basis. when we are talking about the law, people are free to decide whether or not they want the government involved if they do they can make that decision in the state and local level. >> host:. it's big government versus the smaller government. >> guest: she is a slave in massachusetts anofmassachusettsn the household of john ashley who
was prominent in massachusetts and was the home of john ashley that later became known as the sheffield declaration was written in as recognized as a matter of natural law, all human beings are free and equal and the human beings in the state of nature are this way. they realized if all human beings are free and equal, then i am free which retained legal counsel and fought for and won her freedom. this is in the early 1780s so we are talking 80 years before the civil war and she won her freedom from slavery.
e ofhe things i love about this story at any given time while she was a slave she had been offered a even one minute of freedom knowing at the end that she would lose her life, she would have given up just knowing what it felt like to be free. >> host: my favorite license plate says live free or die. her case was not a class-action. how did the courts reconcile that indicated to one person but not another? >> guest: what they did is adjudicate those things but she broke through that barrier and set in motion a sequence of events that took a lot more time to develop, but she opened up the door to other people and to
capture their rights as human beings it worked. >> host: the founders, you keep talking about the founders, but these people were not good people. they were slavers. they literally had people in chains and get all sorts of horrible things and even enshrined in the constitution itself in the provisions that you couldn't amend the constitution to get rid of slavery until 1808. i'm curious what do you say to people like that because there are people that look at the cover of your book and say nonetheless i think most
constitutional history and founding that you think about. this accusation is true so what do you say? >> guest: to try to make the point in the book that not all people that participated and contributed very meaningfully to the american founding were white and male. among those that left a mark were women and minorities and a lot of people that played a pivotal role in history. they are more nuanced into that than the fact he shot and killed alexander hamilton in a duel. these people were complicated.
he had the guts to go into the constitutional convention and ripped off the band-aid on slavery. he said this is an abomination. the judgment is quickly upon this young nation if we do not get rid of this. we should end it. it took some guts for him to do that. if he wanted to do that, he could have freed his own but he didn't. he acknowledged it. they maintained the right to continue the slave trade during the early years in the constitutioof theconstitution iy repugnant as the clause and they were willing to put it at issue in the provision ultimately it
helped to lead to the slavery and that is good to know that it was helped along by some of the brave souls. >> host: he was one of the most remarkable. but this whole spin about the constitution being pro- slavery is wrong so take the three fifths clause which is an abomination but he says it is an incentive to 40 in franchise -- fully in franchise. they said doug walls about slavery but actually contemplates 25, 30 years to do
but basically the whole thing is passed as anti-slavery, proslavery, all sorts of things, remarkable argument. >> guest: i think that it was accurate in many respects and the features that we find a morally repugnant or because the reality undermining that and because of the fact that we were a slaveholding nation at the time and that is what was awful about it. it's that ugly era that helped bring it to an end. >> host: one of the greatest things about the document of the constitution as article five. the founders said we are not smart enough to foresee all of this stuff, so we might want to get rid of slavery and have
women vote. they said here is the process to do that and to the constitution, which obviously it's been about. do you think that it is as often as it should be? >> it should be maintaining the legitimacy of the documents and the authenticity of the government when we can continue to amend it as the society approaches. rather than glossing over the certain features that we are uncomfortable, we ought to amend the constitution. if, for example as a country we decide we want the government to play a bigger role than it has i think the more appropriate would be to debate and consider an amendment authorizing that rather than having the supreme court of the united states effectively amend it. they wanted to decide the case.
in that case the supreme court basically turned the authorizing congress to regulate between the states and foreign nations and indian tribes. until all things that might affect the calls were very different. we could have a debate about whether there was a good idea as a matter of policy, but as a matter of constitutional law, this was a major change brought about with any amendment process contemplated. >> host: but it was a process to the court felt was the reaction to the changing facts on the ground. so you have a fake -- this is to check and without it having
ripple effects there i't a proper basis for the constitutional interpretation. >> that is the argument was mads made in that case involv subsequent cases following from that line including five years later. it is an understanding that buying something in one state has an economic effect. when you replicate and amalgamated the activities there is an understanding that they were economic and had ripple effects everywhere. but for many of the same reasons articulated in the concurring opinion in lopez, there is a
real problem that you get when you allow everything to become federal. is that the hope the founders had between an apple is in philadelphia in 1786 they call this the commercials convention. it's limited to the commerce changes into the article is hard to get things done. hamilton and madison say we need a new brant government and they call for philadelph on that basis.
certainly in your book if i have one criticism of the book it is that you tend to celebrate the losers of this more than the winners. it is the presidency or vibrant government and wanted more for the states that they are generally considered the anti-federalists and you rightly say you should bring them along with the federalists. but if we are thinking about what does the constitution mean today, shouldn't we look at the bar of the standpoint of those that won those debates rather than those that lost them? >> guest: this is the central theme of the book when you look at the winners and i see this over and over in the book when you look only to the winners, you will get a skewed analysis in the hamilton effect to receive the bias from what you
want to receive. i don't think that we can comprehend fully what happened in philadelphia. it's especially important to pay attention to the response by the federalists to the anti-federalists. look at how hamilton for instance responded to the arguments raised by the anti-federalists. he doesn't say you know what, big federal power is a good thing we need a virtually unlimitevirtuallyunlimited poweo regulate the labor manufacturi
manufacturing. it is incorporated as if by reference saying that's where it will be and if there is one part getting too powerful, it is more likely to be there because that is where most of the power is. >> host: hamilton became the secretary of the treasury and then we have t the bank of the united states and he writes this powerful letter to the president saying absolutely we need national power and flexibility. it's not directly in the constitution but it is in the spirit of the constitution and that is in the same way as the modern-day example of the veterans department and then that is picked up by the chief justice marshall and one of the greatest opinions in the united states report.
mcauliffe versus maryland and what those say is we had a debate about whether the federal government should be big or small or limited and there were people who whine and those people said if the government needs to be big enough to adapt to the crisis of human affairs and gets large enough, so be it that is what the constitution is. tell us why that is wrong. they turned out it doesn't mean there's a blank check they always havwhen it comes to power that whatever the congress wanttoo if they do. if there is one thing that would have certainly afforded the ratification it would have been that the congress is the
guardian of its own power and there is no limit. that is a problem when we assume that into existence. the founding fathers understood that there were limits on federal power. one of the things they pushed back against strongly was to give the new congress a negative power over any state that it was tapping down on the state authority and they rejected that and that is what we have today and we could have a negative power over the law. i can't thank you enough for writing this book. one of the beautiful things about it that underscores what i feel very deeply as the founders were not political in the way
that we are today and this book is not political in the way we are today. democrats should read this book come and actually children can read it. to say a smart high school kid or junior high kid can pick this up and read it because it is in english and with big ideas, thank you so much for writing it. >> guest: it can be for homeschoolers or anyone that wants to supplement their child's education or their own.