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tv   Joseph Tartakovsky The Lives of the Constitution  CSPAN  June 9, 2018 11:01am-12:00pm EDT

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writing and the girl at the baggage claim. gish jen, thank you for being on in depth. >> it's been such a pleasure. . >> c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies. and today we continue to bring you unfiltered coverage of congress, the white house, the supreme court and public policy events in washington dc and around the country. c-span is brought to you by your cable or satellite provider.
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hello. i'm going to introduce my introducer. jeremy rapkin, george university. a friend of mine. and a brewing scholar who will be joining me to discuss the books. jeremy, back to you. . . . we have someone from the philia law school. the author is fun. i will titus a little bit about the author in the book and that he has some selections i guess from the book.
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he's probably known to many of you here. from the claremont institute. he is a law degree and he was deputy solicitor general of nevada he now lives in san francisco and was born in the soviet union. one of those people who has strong reasons to appreciate what's the constitution has done for us in america we ought to appreciate that the constitution is not just the work of the original framers but of many generations since then and it culminates with justice scalia. he can say what's in between. he can say what's in between.
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think you thank you to all of you for coming in the rain and thank you for c-span for covering this and thank you to the claremont institute for hosting this. i know they wanted to do an event for a new author. i know they have a hard decision to make i'm flattered. i'm happy to be mean this with the claremont institute. because the claremont institute no organization in my view has been more committed to sustaining the principles behind this country. it may be that you might be part of this mission as well. a nice thing to do i happen to agree it's very american thing to do one of the reasons why i
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wrote this book i wanted to figure out for myself how it was that we have now entered the world liberty it took effect five republics to napoleonic empires. everyone of them was a different constitution. and yet here we are. what i had found is that it's not just the tech it's a constitutional culture a spirit of constitutionalism a way of doing things and habits and assumptions without which i guarantee you it would be meaningless.
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we know this because this is what happens in other countries. i was actually living in russia at the end of 2002 when the state took over the last independent tv station. they did exactly what our framers have in mind with the first amendment. do you know what the extraordinary thing was the russians didn't care. because the state has always owned their mass media. they do not have the culture that makes it a real thing. this book has ten people from before the founding to the president. president journalist and different people and what they head in common is they all did or say extraordinary things
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that teaches extraordinary lessons about how we have created and preserved free government. it seems like a very good time for these lessons. what i thought i would do is just tell you about three of them and what they teach them. and then continue the conversation with all of you. first person is alexander hamilton. he teaches us that for a constitutional culture to survive the people have to have trust in their government in that the government intern has to deserve that trust. hamilton was of course the island orphan so poor that a local judge have to buy him shoes for his mother's funeral. and come to the united states and joins the war effort. and inter- circle.
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it would remember that when something really did happen george washington's utterance was call colonel hamilton basically the first two administrations. it was unusual. a were good on distress a power his preoccupation was building up the government. there was not a more politically fought time. hamilton proves it. with the political spill over from the fight.
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we remember that aaron bird killed hamilton. in what capacity with the day job was. he was vice president of the united states. killed the principal it's even worse because of our position we didn't control that because we had to european empires. and it looked like we were going to war with france again. let me just tell you about two things that hamilton did that showed how to vote as he was. we have to have a government that we trust and we believe in. adam starts to build up an
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army that looks like we're going to war with france. george washington would be the have of the army once again. he writes a letter to adams war secretary. do not let any democrats into the army as officers. they will betray us they will side with france. and you would have to be a pretty bold man to contradict george washington on how to build an army. hamilton writes a letter to mchenry and says washington is all wrong. the army will become a partisan institution and half the population would not feel like the army as theirs. hamilton was right. with the apolitical army has been with us ever since. has anyone heard of maria reynolds. she was the stormy daniels of the 1790s.
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as they were writing this to mchenry. hamilton was corrupt. hamilton writes and says that we think. no political corruption here. it's just like he is the husband of an unstable prostitute that has been having an affair. hamilton did this he was a corrupt spouse but not a corrupt official. let me tell you about that all americans not just lawyers or judges. not even just that role they
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play. no one shows this better than her. she was a black woman born a slave in 1862 in mississippi the event that changed her life was a lynching of her best friend in memphis. she would be a teacher at the time. she starts doing it on a national scale and she becomes the most important crusader we have ever had against lynching. at the peak of her fame in the 1890s she was second only to frederick douglass. she not only wrote about these things she pioneered what we would think as a criminal defense technique. find out if they had been coerced. she would send she did this
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after a terrible tragedy. one of the first on the scene. in the fax are so horrifying things like that they had set the execution date. the execution date but no one have bothered to set a trial date. they take a long shot at the supreme court which at this point in time they have barely lifted a finger. in 1923. in moore versus dempsey. they did one of the first ever humanitarian interventions. the famous cases came in later decades. she was therefore. her other cause was women's
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suffrage. i don't think there is a clear example of how ordinary americans create profound constitutional change. what we know of as that 19th amendment. you cannot prevent people from voting on the basis of mac and failed every time to get out of congress for 402 years. until the 1920s. and what changed. it was mostly women talking to their brothers about the justice of the right to vote for women. with the suffrage's struggle it actually came down in one amazing moment to one person harry burns is mom.
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you need three quarters of the states to ratify. the constitutional amendment. thirty-five had ratified in the fight was now in tennessee. they were posed. all the this it shenanigans you could possibly imagine. 24-year-old. breaks the tie and later reveals that he did so because he got a note from his mother. dear harry. we know you haven't said anything. vote for suffrage. and he did. and 20 million women got the right to vote. he reflected on the fact that his mother have been educated. and she was going to go to her grave never having voted for anyone in her life even though
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the field hands on the farm could do so. this is one person. the last person i will tell you about his justice anthony scalia. nobody made the argument longer or more eloquently that the constitutional government requires faith in self rule. he was sounding the alarm as what he saw as the supreme court in case after case deciding things that have been the preserve of the people democratically. he saw this with national security. what really got him was social questions. and the issue that seemed to do that was the death penalty
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maybe it's because here's an instance the constitution clearly provides for it. and they had been have been so systematically chipping away from it. just last month you may have seen the president call for the death penalty for large-scale drug dealers. under the current constitutional law would be unconstitutional. the supreme court has said that under the cruel and unusual punishment you can only take someone's life if they themselves take a life. i don't think people would like to know about the case on which that proposition rests. it's a example of the danger of constitutional rising culture and cultural questions.
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a georgia inmate serving multiple life sentences he escaped from prison embracing the home of almeda entice them up. and the question for the supreme court was can georgia execute him. and the court said no. this is the courts reasoning this is a quote for a victim of a rape life may not to be nearly so happy as it was before. but it's not over. and normally it is not beyond repair. the court never said how they knew she was 16 at the time. she just given birth. we know today. that they never in fact recover. i look at the attorney general's office. and one of the initiatives was
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to test rape kits. the thing that surprises people some people don't want to know they spent too many years trying to deal with the pain and yet by that decision in coker versus georgia. they took away the right of americans to change their mind on this question. maybe we can show that even the threat of the death penalty could deter a thousand rapes. or that a man who does this does as much social as some individual harm and murders. sometimes they have these and were seen our culture change on this point. before our very eyes. and this is what they warned about. let me just say one last thing and then i will stop. we've have a few friends able to read the book. i had been surprised by it.
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the book is too optimistic. of course i'm optimistic. i'm an american. this is who we are. how can you not be optimistic. we had 56 presidential elections unbroken even to a civil war. one of the figures in our book. came from europe to tell them about our country. you won't believe it. there is this country and its constitution doesn't even have the smell of fire on it. not just civil wars but our constitutional has through two world wars. the depressions large and small. for a confrontation of a soviet union. if we had been able to do any of these things with
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incredible strain on what written constitutions. most constitutions do not survive these things. they just don't. we should be proud of that. if we can get to 230 years unconstitutional role than i think we can survive. the trump tweets and even a few more indictments. i'm sure of this. we had had longer experience in the art than any people in history of this planet. we have taken to heart the assertion of a pennsylvania framer. who said it is not our duty to leave while to our children but it is our duty to leave liberty to them. thank you so much.
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i will just ask our author a few questions about the book. which hopefully well prompt people in the audience to follow up with their own questions in just a few minutes. maybe like to say something about how you selected the lives that you concentrate on. with ten of them. not from franklin roosevelt. it is a somewhat surprising list. some may be can explain how you came to this list. they have a lot of cameos a lot of people. i need to pick people that went from the beginning ever history to the present i
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wanted to take people who i thought teaches lessons that are in need of some restoration. they had been lost to history. who are members but i think they're misunderstood. i put hamilton woodrow wilson. to an extent in these categories. we need to have people that showed the history is not just the history of the importance between the court cases or a series of constitutional interpretation. the historic's about the americans human being. pick a few people and you
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follow them on their adventures through life and see what kind of picture you can paint. the unknown stories i have to make a lot of hard choices. but that's i picked them in the end. they are presented in pairs it doesn't really seem like you are meaning to contrast with those. what is the logic of presenting them in pairs. just you sometimes you find interesting contrasts justice jackson for instance was the most eloquent defender of fdr and the new deal. if you take the same things
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they said and the things that they'd said. you will not know who is who. they are both champions of this. it was social questions. question about marriage or abortion. so security. or economic questions. history is surprising like that. the emphasis is on reducing big government but in the long-term constitutional perspective there is tension there. for the first hundred years of our existence. they were the ones trying to build up the government james wilson hamilton washington daniel webster. henry clay. they were the ones in favor of strong vigorous central
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governments. he is not a strict constructionist. these things i find can be illuminating when you compare and contrast in that way. let me just try one more question. you end with went with us carrying a jackson and scalia. of all of the figures that you had covered. the one who could have known about all of the others. would you say they have the mess -- the most kinship or is there some other figure that they would've found most inspiring. i was just going to mention that i was in his chambers once.
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is that the predecessor that you most admire. he said no. he was a terrible man. maybe have an opinion. his favorite predecessor. he have a lot in common. good humor and modesty.
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there are some talks. on the big radio show on the left. it's probably not true. they came into the country in the advanced age. in the two founders i have.
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you find a lot to celebrate in the american legal system. can you talk a little bit about the darker side of the american legal system. trial lawyers who shakedown legitimate companies. if someone calls you joe we know that they had known them for a really long time. here i did. there is a lot of darkness in our history. and that's in the book also. it's not like a sappy book. if the sink is shipping some
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of these relate to the constitution and some of them don't. it is a fact that something like 99 percent of criminal cases to not go to trial. people plead out. sometimes it is. they have a lot of these unintended consequences. what we call the rights resolution. and giving ever greater rates and make the trial ever more expensive. and put the animus enormous pressure on the prosecutor. when a criminal trial case take six months or a year. you have to force people to
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sign plea deals. the decisions designed to help criminal defenders. judges, that is why anthony scully is in there. to what extent a judge can reach a question legitimately. this is their job at some point to answer the elite question. america is a strange place where every political question question leads to that. we've been doing more and more of that. partly the other political branches. i noticed a few years go by. they let the court to get away with things.
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i hope that as a start of an answer. would you care to elaborate on in what sense woodrow wilson would be remembered. can i be provocative for just a moment. i thought every story had to have a villain. that's how i got to woodrow wilson. a man who have the founders of the mind. that's why picked him. i spent some time with them and i found that he did not say and do the things for which he is guilty. i kind of treat him that way. it has as group guilty as charged. woodrow wilson just to give an
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example. here are the three things that during legislative, sequential. the federal trade can mission act. and the federal reserve act. that's what he did in his first term in his second term they were all one. i have not met anyone that wants to undo those things. the federal trade commission acts was demanded what i find is that it is something long in coming. you could even trace it back to hamilton. the first in ministry to demonstrator of the regulations. i find woodrow wilson if you try to understand him he actually had extremely
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flattering things to say. and what he was trying to do is restore what he thought was their vision. he may have been wrong about that. he thought he was not a critic of the separation of powers. as practice in the 1880s. and was the it was the type of astonishing congressional dominance. who can name a president between and mckinley. this is a time where you know that. this was a time when the speaker of the house was more powerful than the president. it was considered unconstitutional for the president to visit the congress and present.
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jefferson stopped the practice. and for hundred 13 years no president went to congress. and they shatter this tradition in 1913. in his argument was why. why should i do this. the constitution has a clause that says the president from time to time should recommend that to congress. jefferson hated public speaking. george washington wanted to do it. they flipped out when he came. someone introduced a resolution. he was a tradition breaker in that way. he gets in trouble today. sometimes it makes more sense than you may think at first.
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they have often invaded against or that. of course youee it not only in the supreme court by other courts as well. this phenomenon and you must have note of it in your studies. when did it start and why did it start. it depends on who you ask. where on earth did john marshall find a bank in the constitution. they opened that and waited until the fight of the political realm. it's always been that. it started from the beginning.
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george washington said he gets that. i read the constitution. hamilton said you need to read this thing. there are implied things. the war power. in the financial management power. what is new about today. with that without social questions. they would weigh in on things more plausibly connected to the constitution. with every decision you build on these things. it to be very careful. congress law comes and goes. it can be eliminated in an institution that lasts forever. they trip up. the decades down the line.
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my question i would be remiss if i didn't discuss this and elaborate on your position. in that i think that people are african-americans and they had been imprisoned in a much higher rate of people who have been executed historically probably a higher percentage of african-americans have been executed and later it is found out that they are innocent. just wanted to comment on the excursions into what the come tree. often sometimes erupts in wars and conflicts. and those people even though they've had people having been killed by hundreds or
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thousands. they often decide and to not follow through and execute those people who have done certain ills to their other members. i know they did and argentina. another conflicts. why does america still in some ways when we go to other countries and these conflicts are wrapped. they decide we better move on. let's not go through. and just forget. i think that is really important. especially in our on -- in our own country.
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i'm very grateful for the comment and the unequal application of the death penalty is one of the strongest reasons against it. i have my own reservations about it. and i work in a state that has a death penalty. the other penalty has i think almost been almost abolished. there was someone on the vat bat of death row. your point is the right one. the question you raise about that. these are very deep unresolvable social questions
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is this on. he's here is he is here is a question we have to think through. we both are taxed to harry jaffa. in the teaching and that central truth of the declaration. they explained why. the role of the majority. in the constitutional restraint is the only operational form of government by the but he buddy took the principal to be there. our friend scully at did not really and thought the declaration did not had that and acted. it has to be in place before we formed the government. we to think through this. you simply have the roles of
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majority not drawn from the principal but the rule of majority. it could simply be that the majority rules because it has the power to over bear. the minority. it is the rule of the strong. as they sounded very much like that in explaining the force. what is your sense of that problem. it is an internal problem. there will be sometimes wear that majority has to have its way and there will be sometimes when is the court's duty to perfect that. and defend against that. i personally learned to live with it. and i think scully it was scarred by that.
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just too much freestyle. i think he thought it was safer than the american historical traditions. i just add that i read in the book. this line from scalia. am sure it's not in the u.s. reports. maybe you can identify the source. it doesn't prove anything that everyone thinks you are wrong. when did he say that. he maybe wasn't shaken by your logic. sometimes that's a good thing sometimes is a bad thing. but always a very scalia thing. i think we had time for one more question.
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i go back to hamilton. and his treatment of constitutions and also to the aspect that tom kling and steen talked about with me a few years ago. he was a monarchist. he probably would've overthrown and i wonder if you comment on how you see the light of the accusation. so i try to rebut that. he was called a monarchist. he made the speech. he proposed that the president be appointed and good behavior.
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not clear why he said this it wasn't as crazy as it sounds today. the senior members and the patrick leahy. how long had they been in the 70s or 80s. some people think he may have been there. he was in favor of a government so strong that it struck some americans looked like monarchy. may they rein may they rain long over us. some people were so sure that washington was can be the precedent that we know. in the draft speechesay in
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one of his inaugural questions. we need two-point out that we have no children. it was a british war veteran. is still english blood. and hamilton was curious that he got accused of this and he was particularly one thing that he said. this is a bad tendency. stop calling it a monarchy. it's not. the way to produce is to have people lose faith. will either head a king or anarchy.
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imagine he is rather like the president we have today. hamilton envisioned the president like this. it was not yet available. he would write up ads. he would write his own stuff. i would need some copy. he shows up at nine or 10:00. and they would sit down and hamilton would just look up. he would just start talking. he would stop talking. an editor would say that he would just take it. and put in the paper. that's as close as you get.
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we have the articles of confederation before the width that has made very brief comment. would you recommend going forward that would help us to retain the constitutional order that we've inherited. the articles of consider confederation were not a government. it was like a treaty i can i did nations for the state. i am on the amendment question. i am in amendment skeptic. it seems to start take that so well.
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anyone can amend the constitution pretty much. 500 amendments has destroyed the character of the california constitution. it is just a code. i litigated that. it is so detailed that it provides for that taxation rate or nonprofit golf courses. when you do this sort of thing. it becomes not the broad charter but a confusing patched up mess. it's interesting ideas.
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the three-quarter of the state could override congress. can you talk a little bit about the tension between constitutionalism and democratic culture as understood. it was the tyranny of the majority. there is an american decided democratically. and it overwhelms the views of hated minorities.
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it's a very very good on the social stuff. i didn't talk about all of the great emblems of early americanism. and universities. the tension is a reflection of the one that they ask about. it's an internal one. i don't remember many cases where the courts were protecting people. i think there is really no way around it which is why you hope you had people he is educated and believes in these things. he is not ready to go at their
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throats and invaded their invade their rights and silences. the only thing that stops him as some provision of law. we actually believe there is a certain way to do it. we do things a certain way here. we respect property rights. this is an extraordinary thing. why is it unlike in france you have the carpenters and the bakers. they don't pass laws. and he took those actually and actually have the chance to become a framer. of the second french republic. they have a mention. i can teach you about the way americans do things. here about it. you cannot have a constitution when you have a convention that is made up of anarchist
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and socialist there is too much room between the various french parties and you cannot agree on anything. you can't get anything workable. we succeeded because as much as we disagree about everything they agreed on these institutional fundamentalists we have elections. you respect speech in property. we have this commonality and this corporate. it was enough to have it cohere. it's been a very good attorney for us. i would just like to say two things more in praise of the book. and one of them is i was
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really pressured by your confidence that he was wrong about this and this. is it not just a mark of you trust your judgment. you don't write like an academic. you don't have this anxiety that someone will object. they will offer at the reputations. it's very readable. and it is competent without being overbearing. it would be hard to say what the line of the book is. i think you give each of the figures that you're talking about due and draw people in to why they are interesting. it is a sort of unpredictable list. it's a nonobvious list. it's not the mount rushmore of
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biographical sketches. it's really a fun read. and a very valuable constitution. particularly at a time like this when not so many people are feeling quite so confident about the country as you are. thank you. happy to sign books in the back. if you and help me pay my way back to california. thank you so much for coming everybody. [inaudible conversations] this sunday starting at 5:00 p.m. eastern in order to live.
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a north korean girls journey for freedom. without you there is no us. his book north korea and original security in the the america and the rogue estate. watch on c-span to book tv sunday at 5:00 p.m. eastern we had called each other horrible names forever it's almost more of the world -- the rule than the exception is that we are reading them in our pockets. that is more visceral. in one of the things that technology has given us multitudes it's also created a capacity to express an opinion quickly even if we don't have
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an opinion worth expressing. i think it does require personal dignity and opinion. there were 46 u.s. combat deaths a day. the year opens with johnson. senator kennedy is murdered the first week of june. the year ends in five states. if you look at 1968. it's the year that everything fell apart. that's a the popular memory of that. that's followed by water great. whether you agree or disagree with them politically or not carter, reagan, bush clinton
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that was. of relative presidential security. and enough prosperity that we were able to make strides with the role of women and making sure that the civil rights movement did not fall apart. so leadership depending on who rises but it's also our disposition of heart and mind. this idea that we are able to self govern but what we are governing as a result of our hearts and our minds and our willingness to extend a hand it's point to be put back together i think in part because even if you are for
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president trump you're not happy with the way things are going on in the country. i think people who had supported him i bet there ultimately is erosion because of the cultural chaos and i think the people who support him. and the people who oppose them have not been as invigorated since the 1960s. it's kind of a golden era of protest and resistance. and now we kick off our live coverage of the 34th annual chicago tribune fest. founded in 1985.
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the festival attracts over 200 booksellers and authors. as will is over 125,000 visitors. today and tomorrow you will hear the author discussions on gender identity. the state of american democracy racism, the apollo eight mission and americans abroad. just to name a few. today's lineup starts now with a discussion about cuba. this is live coverage of the best book festival. welcome to the 34th annual prince fast. i want to give you special thank you to all of our sponsors. it will be broadcast live on book tv. there will t

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