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tv   Akhil Reed Amar on Law of the Land  CSPAN  September 16, 2017 4:00pm-5:10pm EDT

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17, 1787, 39 delegates to the constitutional convention signed the u.s. constitution. september 17 is now recognized as national constitution day. akhil reed amar. he talks about his book, the law of the land. discussing how geography impacted the u.s. constitution. the interview was held in philadelphia in 2015 by jeffrey rosen. it is just over an hour. [applause] jeffrey: ladies and gentlemen, welcome to the national constitution center. i am jeffrey rosen, the president of this wonderful
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institution which as one or two , of you may be aware, is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. beautiful. you can also no long to our glorious mission statement and , we've now encapsulated this as visual statement as well which , is to say this is the only place in america in these polarized times where people of different perspectives can come together to learn about, celebrate and debate the greatest vision of human freedom ever invented, the u.s. constitution. how's that? great. [applause] well, as you know, those of you who have been here before know, there are many evenings of great excitement here in constitutional heaven. but you're in for a real treat, and i am as well because i have the huge honor and pleasure of welcoming back to the stage of the national constitution center not only our dear friend and
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valued scholarly adviser akhil amar, but my first constitutional law professor. and i have to tell you that my passion for constitutional debate and and love for educating americans about this great doctrine was kindled by this great man in his class now many years ago, and he is just a model of scholar, someone whose passion for making the text of constitution accessible to the all americans inspires and has shaped everything that we're trying to do here at the national constitution center. and he, i think, has done more to educate americans about the importance of taking the text seriously than any other scholar in america. it is such a privilege to welcome him to the ncc. please, give him a round of applause. [applause] we are going to jump right in in
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a moment to his superb new book, but i have a couple of plugs that i have to share with you. this is, as you know, a members-only event, and it is a sign of the irresistible benefits of membership in the national constitution center , which anyone can join just by going to the website. and you get to come to in-person events like this, and you have this beautiful brochure of upcoming member events which are , similarly thrilling including a breakfast -- meet the ceo breakfast. can you imagine anything more exciting than that? [laughter] on may 28th. a special members-only tour of our upcoming exhibit, speaking out for equality: the constitution, gay rights and the supreme court, which is opening at the beginning of june and is going to be the only exhibit in america that will present all sides of the constitutional debate over the meaning of gay rights. and it will open just weeks before the supreme court hands down its historic decision in the marriage equality cases
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, which were argued just last week. in addition to these great members-only events, we have just a panoply of spectacular events coming up this spring. our traveling town hall events , cosponsored by the federalist society and the american society, are taking off next week. and we will be in boston on may 12th debating whether the citizens united case was correctly decided. we're going to new york in july to debate the constitutionality of nsa surveillance. and we think these great debates uniting the two leading lawyer'' groups in the country have the potential to transform constitutional discourse just like the lincoln/douglass debates did a hundred years ago. and there's so much more coming on. please check out the website for more to come. i'm, i've already given akhil, i've told you how meaningful it is to have him here at the national constitution center. he is the sterling professor of law and political science at yale. he clerked for judge stephen
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breyer. he joined the faculty in 1985, so i had you in small group in '88, and you were just three years into teaching. and basically you're about a year older than i am or something like that. were you the youngest teacher ever at yale? akhil: one of them. jeffrey: yeah. i want to start -- he's the author of, i'm going to read the titles of these books because i want each of you who has a love for the constitution and wants to learn more about it to read them because i really think , there's no better introduction to the constitution for students of all ages than akhil amar's superb books. they include the constitution and criminal procedure, the bill of rights: creation and reconstruction, america's constitution: a biography, america's unwritten constitution: the precedents and principles we live by. shall i start by recommending america's constitution, i think, as the place to begin.
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and then go and read all of akhil's other books, and i know you're going to want to read this one after we talk about it tonight because this one, "the law of the land," has a thesis which is so surprising and innovative and creative just as , everything that akhil does is. and that is to focus on the relationship between the constitution and geography. who would have thought before reading this dazzling book that geography was so central in the thinking of the justices who have decided the most important cases in history as well as in , people like lincoln who shaped its meaning. and i just want to jump right in. your first chapter talks about lincoln, and you talk about secession. i have to tell you, ladies and gentlemen, imagine this. i've just started law school, it's two weeks in, and this great man, this great teacher took, i think, two hours in your office -- [laughter]
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after class. it was late at night, you know, 7:00. there was -- dusk was settling. and the question was, was secession unconstitutional? and akhil insisted that it was settled at the time of the framing that we the people of , the united states -- rather than we the people of the individual states -- were sovereign and, therefore, secession was unconstitutional starting with the framing itself. and i, with the absurd overconfidence that a first year law student can have, said, no, it took the civil war to settle that question and it was open at the time of the framing whether , we the people of united states or we people of the several states were sovereign. and in this brilliant chapter on lincoln, you say lincoln basically believed that we, the people of the united states, were sovereign at the time of ratification, although you think he overstated the case to some degree for why that was so. tell us about lincoln and secession. akhil: it's great to be with you all. jeff, thanks so much for your kind words. so lincoln's my hero, he should be all of yours.
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we live in his house. the framers' house, built here in philadelphia, was proverbially divided against itself because of slavery. it was a house that fell really because of slavery. we call that falling the civil war, and mr. lincoln rebuilt it. and he built it on an anti-slavery foundation. so the first chapter of this book begins with him and his vision which is very much an , illinois vision. we're all living in the the land of lincoln. and i picked this season to launch the book because it's the 150th anniversary of lincoln's passing, the end of civil war. i want to commend the national constitution center for its second founding project which is , all about putting lincoln really up there, genuinely alongside washington. we focus on the founding generation, but we live, as i said, in lincoln's house. and the two most important
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constitutional decisions really ever, i think, were not made by a judge, they were made by lincoln to resist unilateral secession. you know if he hadn't done that, , it's like who would we be? would we be? it's like asking who you'd be if your parents had never met. and the decision to free the slaves, which will lead, of course, constitutionally to a 13th amendment and a 14th and a 15th and this second founding project, this new birth of freedom. so was lincoln right? i say, yes. the title of the book, "the law of the land," is, of course, taken from the supremacy clause of the constitution. the constitution describes itself as, you know, it's this short little document, and it refers to itself in a bunch of passages -- you have the wrong one. akhil: i have an earlier version than the national constitution center document.
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so it describes itself. this constitution, self-referentially, it says, is the supreme law of the land. of the land. notwithstanding anything and any state constitution to the contrary, notwithstanding. what part of that do you not get, south carolina? i have kids, and sometimes i look at them, and my wife and i say what part of no did you not understand here? [laughter] so if you don't like it, individually you can leave. you can't take the land with you. and that's what the founders understood. that is the text. let me give you just one historical fact, and i'll give you more about lincoln because lincoln, i think, channeled the framers in powerful ways and from a midwestern point of view. we had a whole year in which the constitution was deliberated on up and down the continent. we, the people of the united states, did ordain and establish this constitution. we put it to a vote. ordinary farmers read the thing, because it was short enough for them to read it, up and down the continent.
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they had to decide whether they were fer or agin it. it just barely squeaked through in a bunch of places. in new york the vote was 30-27 in the ratifying convention. in massachusetts, in new hampshire, in virginia, it's very close. and yet nowhere ever in this whole year did any supporter of the constitution say why don't , you give it a try, if you don't like it, you can leave. money-back guarantee. what a powerful argument there would have been if there were. don't you think they would have said so? instead in the federalist 11, they say that the union must be indissoluble. they talk about a more perfect union, modeled on union of scotland and england. they call it the law of the land. they say any state -- anyone who goes against that commits treason under the constitution. okay. now, why did they do it, and what does lincoln add to that? so lincoln basically is from the
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midwest. and he understands that the entire region from the appalachians through the rockies drains through the mississippi river. and you can't get your goods to market without going down the mississippi, and you can't let a foreign power control the mouth of that river in new orleans. it would have a chokehold on everyone in the middle of america. there's no defensible border, he explains, between illinois and the states below. the culture of corn, the land of corn meets the land of cotton, there isn't some natural, defensible border, and so he says we can't allow this to fall into the hands of a foreign power. why are americans free? well, the founders understood this, and lincoln understood it. because there's no standing army in peacetime for the first 150 years in american peacetime. now, you have a hostile regime
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over the southern part of the united states. and now you're going to have two armies, you know, facing each other, and they're going to fight over who's going to get the west, because there's gold in them thar hills, and lincoln says we can't allow it. you can leave. you can't take the land with you, you can't take the water with you. all americans spent their blood and treasure defending fort sumter and other places against the brits. those guns were meant to point out against our enemies, and you can't just let a local population swivel them around and point them into the rest of our bellies. that's lincoln's vision. -- ihow did the geography have given you a little bit about the geography but why , would lincoln especially understand that? two things. one, he's from -- he thinks the union actually helped create the states. if you're robert e. lee, virginia's been up and running from the 1620s. it's 150 years old by the time the declaration of independence
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comes along. that's as old as lincoln is for us today. you think virginia created the union. if you're abraham lincoln, you're born in kentucky, and your father's from virginia, and your grandfather's from pennsylvania, and before that from new england, although you're not quite sure which state. and you move to indiana and then to illinois. and when you move to these places, indiana is a federal territory about to become a state. the union is giving birth to new states in the midwest, in the old northwest like illinois and indiana, okay? so you, when you move to indiana it is not a state yet. you are in america, you're not just an illinois person or a kentucky person. that is one idea he has. what were his policies? we are going to have good atlanta survey, so when you leave kentucky. maybe somebody claims title to
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it. virginia land laws are all messed up. you are just squatting on it and cannot defend your claim unless you go hundreds of miles away and you hire a lawyer in virginia. you will have good federal land surveys and a commitment to public education and infrastructure. it will lead to the land-grant act. he wanted to connect east to west with a transcontinental railroads. it is a very illinois central view of the world. he is very much a product of the midwest. and the backbone of the union army during the civil war came from the old northwest, ohio, sherman and grant, and illinois, and finally this man in the northwest is free soil. it is free soil because of the northwest ordinance, adopted even before the constitution
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comes into existence. the language of the northwest ordinance prohibiting slavery north and west of the ohio river, that will become word for word for word language of the 13th amendment. which lincoln signs into law. not yet ratified when he dies. he is kind of the moses of our people. it is given to him to see the promised land. but not to enter it. a signature is not necessary. he takes that vision. and he helps and ultimately gets it into the constitution. it is a very midwestern view of the world. jeffrey: ok. it is powerful and well argued but it is 27 years later and i , still can't let this go. akhil: 27 years. oh, after the conversation. jeffrey: so there is another vision command it was not a midwestern one. it was james madison. and in the federalist 39, he
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talks about dual property. and it says sovereignty is sometimes the entire united states and sometimes in several states. and you acknowledge in the book that robert eva lee had a more state centric vision. akhil: yes. jeffrey: is it possible there was division about -- james wilson was the champion for national sovereignty, but did madison have a different vision? lincoln totake perfect a and the civil war to settle that? akhil: there was a debate. federalism is one of the big issues of american history. this book is all about federalism. it tries to take states seriously and regions seriously. ours is a vast and diverse republic. things look different in california compared to what it looks like in kansas or kentucky. and there are genuinely close questions in american federalism. it just turns up happily for us and for lincoln's memory that secession is not one of those
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closed questions. ever madison never, ever, wavered on secession. he always thought it was unconstitutional. here is a letter that he wrote in the new york ratifying convention while the eyes of the world were on new york. so let me set the stage. 10 states have said yes to the constitution. it will go into effect. this is july, 1788. ten states have said yes. new york has not. it is very close. we do not know which way it will go. but at the end of the day it is 30 to 27. so if one vote switches, it would change the outcome, because then it would be 29-28 and the presiding officer who is opposed will cast a tie-breaking not really a tie-breaking, but a time making vote. then it will be 29-29 and the
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resolution fails. so they go to one vote. hamilton does not know if he has the votes yet. so they come up and say, here's the deal we propose. we say yes on the condition that there be a bill of rights. and he figures, maybe i should go for the deal because of new york says know the constitution as a practical matter we will fail. how will it work with new york city, it will be, it will just -- it will not be contiguous. it will be like east and west pakistan. so that is not going to work. so he's interested in taking the deal and he says to madison, how about a copper mines -- compromise? no, you can't. he writes a letter. the eyes of the world are focused on new york. because who knows whether they are going to say yes or not. he says, ratification must be in toto and forever. that is how all the other states have ratified the constitution
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and how must the new york do it. so all deals are final. once you are in, you are in. and in this entire year no one , ever says otherwise. think about it. if people are wavering, if there were a moneyback guarantee, wouldn't you say so? but instead they are resolute at the risk of losing everything and they insist all sales are final. so happily for us, lincoln was on rock solid ground in emphasizing the words of the supremacy clause and its larger geostrategic spirit. i told you why that is so, because you don't want people at any moment being able to leave the union and cut a deal with the british or the spanish or leave the, and then rest of us. he said a couple of things that i thought were a little too exuberant. i we will tell you why i think he went further than he had to.
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bottom line the most important , constitutional decision ever made in america, he got it right and for the right reasons. jeffrey: i have to confess. after all this time, when i read about the state ratification, i can see. you were right all along. akhil: but listen, it is because you and folks like you, year after year rightfully pushed back. that is -- when you teach at a place like yale you have great students and you have students who pushed back into the force you to refine your argument. and make it better. thank you for that push back. jeffrey: thank you. the most exciting thing about studying the constitution is you invited your students to hit you with everything you and challenged and that is the best argument. it is now time to talk about
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hugo black. you also kindled my admiration of hugo black, so much because -- so much so i named one of my sons after him. as as you note in this chapter, it is an unfashionable view. who go black was dismissed as a self-taught bumpkin by all those snobs. you say there is a central connection between black textualism and his great contribution to incorporating the bill of rights against the states, his jurisprudence and you think there may have been a biblical connection. telephone that the geography. akhil: so i believe the greatest constitutional vigor of the last 150 years was this relatively unlettered fellow, from illinois, from the midwest. abraham lincoln had less than a year's formal education in his life. but it is unfair to call him unlettered.
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because he is amazingly self-taught. because he would go to the debates and he would read books, then reread them. andy had a steel trap mind. but he was basically underestimated and dismissed in his lifetime by all these folks that had fancy educational east coast degrees. and they really did underestimate linkedin. that story interestingly reoccurs in the next century. i claim -- i began with lincoln. the greatest jurist of the 20th century was a hick from the sticks, from alabama who did not , go to harvard or yale or in fact a standard law school for three years. basically went to high high school, did a year or two of college, kind of, and then went to a nonstandard two years of education at the university of
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alabama. a former klansman, the guy who actually does more to redeem lincoln's vision than anyone else. what we call the war in court is actually i claim, the , intellectual brainchild of hugo black. and you may not have heard of him. brandeis,ve heard of who went to harvard. you are getting this picture. harvard has been telling the story. [laughter] en.il: or maybe earl warr but the six things -- none of them were in place in 1936, the year before hugo black is appointed to the court, fdr's 1st appointee. here is what the world looks like one black gets on the court first appointee.
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malapportionment in 45 of the states, massive now malapportionment. jim crow. the jury segregation, apartheid. the bill of rights does not apply against the states but the federal government. think about the important bill of rights cases. almost all the ones you think of are actually win states have done bad things, not the federal government. ande is organized prayer recitation on public prayer in the schools. freedom of speech is almost -- has almost never been protected by the supreme court. that is the world of 1936. the war in court will change all of that and in almost every one of those things it is black saying it first, even before
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warren joins in 1953. way before felix frank fridley joins the court. there is one person one vote. there is applying the bill of rights and incorporating it against the states, getting rid of prayer in public schools. and more generally, religious equality. he along with everyone else gives you brown versus board of education. but he is the one deep southerner on the court that does that. he is more criticized by his social circle than anyone else, because what he is saying is unpopular. criminalights of defendants gideon versus , wainwright. he writes that, although he had laid at the table for that in 1942. that was versus brady. so the story in that chapter about how people down south come from a fundamentalist tradition. they read their bible and they
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care about it and they teach it on sunday school. it is not a completely different vision from clarence thomas, also from the deep south. a tradition of taking the text very seriously and paying attention to history and original intent. treating it as american scripture in a way. maybe not very sophisticated or highfalutin, but very deeply felt by an american patriot from black.thland, hugo i am in that tradition. the folks at harvard mark that. they think they are a little more sophisticated. but hugo black understood what lincoln was trying to do command , and he understood having grown up in the south that we were not living up to the promises that were put into the constitution. in the southland, he really felt the failure of the
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reconstruction vision and did more to redeem lincoln's vision than anyone in american history. and again, he is a deep southerner, a former klansman who actually deep in his heart did not believe in religious intolerance or racial bigotry. some of you might not know his story. that is the one they tried to tell. jeffery: you have just done some harvard bashing. the harvard side has reciprocated. hasf justice background said that they are not all from an elite background, some of them went to jail. yale.t to yell -- went to you discussed that all of the current justices come from new york city.
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when you focus on where they were raised, the geographic puzzle remains. northeast corridor cities plus san francisco. york, philadelphia, new boston, san francisco. all from the same region going to the same school. no one is perfect. you also note that beginning with theodore roosevelt 10 of our most recent presidents --ended the last four presidents all went to harvard or yale or both. five of the last press -- the last runners up went to harvard or yale or both. ,f you count vice presidents people running for the vice presidency as well as the
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presidency, the last time we had an election in which one of the top people running for president to not go to either harvard or yell or both, 1968. you are living in a world where unlike the world that gave you hugo black or abraham lincoln, today travels through a narrow gate called the ivy league. william buckley said he would rather be governed by the first 10 names in the phone book than the faculty at harvard or we be concerned about this and how does it intersect with your these us -- with your thesis? we should bek concerned. i have three former students who are senators. i have students who are president of the national constitution center. but it is not good for the country. narrow of a mentorship
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believe and diverse city. i believe in geographic diversity. every part of the country has something to contribute. i believe and, for similar reasons , i hate to admit it, but it turns out there are more than two good schools and america. narrow a pathway. but you do say the justices are redeemed or geography resurrects itself because most are raised near a port city. there are so many ways to slice it geographically. it is north against south. the same states that voted for lincoln voted for another tall skinny constitutional lawyer from illinois who gave a speech
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right here about race, right here on this stage. -- the sameage states that voted against lincoln voted against that tall skinny constitutional lawyer in 2008 and 2012. that is north-south, the parties flipped. thedemocrats have become party that inherits lincoln's geographic coalition and the republicans have become the party of the confederacy. that is one way you could slice it. you could slice it a different way with in states and look at coastal versus non-coastal regions. in pennsylvania, it is philadelphia and pittsburgh connected by a very different demographic. as you look at presidential elections by county, you will see this is blue america, we a thinn washington dc, strip of blue on the way up the
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atlantic seacoast, around maine, the saint lawrence seaway down theugh the great lakes, northern rim of ohio and around michigan and minnesota, down the mississippi river, the west of miami where a bunch of new yorkers have , eight big indian reservations where no one lives. eight college towns in the middle of america like boulder, colorado, and atlanta, georgia. that is blue america. everything else is red. people who vote for the constitution tend to be the people in the ports. voted against the constitution tend to be the people in the hinterlands. are placest ports that are connected to the world, they are places of commerce and trade.
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they are often centers of education and philanthropy. they are where people and peoples intermingle, california is where north meets south and meets west. philadelphia was always a more mixed place. city, the law towns. law is about commerce and trade and the clashes of culture. philadelphia is lousy with lawyers, so is washington, d.c., so is new york, so is boston, and that is where the justices come from. that was not always true. let's take the dred scott decision, which lincoln runs against. dred scott said preposterous things about the constitution. the northwest compromise is unconstitutional. why would they say something that preposterous?
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court five ofott the nine justices came from the slaveholding south although that region had only one third of the free population. that supreme court was malapportioned in the southern direction and one of the reasons is because the justices wrote circuit -- rode circuit back then and you had to apportion your justices based on the roads they would have to ride and the swamps they would have to cross and because the south had crummy roads and bad infrastructure they had smaller districts because it took longer to get from point a to point b. that meant the south had more than its fair share of justices, which meant the dred scott court was tilted toward the south. we do not have circuit riding anymore. seats, theographic
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woman's seed for the jewish seat or the african-american seat. most of our justices come from coastal places and they went to ivy league schools. it is an interesting geographic fact. jeffery: california is next, anthony hannity and the idea of equality. sacramento is not on the coast. and the ideannedy of the quality. sacramento is not on the coast. akhil: it is not too far from the bay area. you are from manhattan. i am from the upper east side. akhil: you are a gotham person. do you think of new york as an extension of greater gotham, you might even think of new haven as the metro-north. you have a certain imperialistic
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view of greater gotham. i am a very -- i'm a bay area kid so i think of oakley and and late and -- oakland berkeley and sacramento and tracy and stockton. as a bait area person -- as a nnedyrea person -- tony ke sits on a court that meets in san francisco, the ninth circuit court of appeals. fold.im is two or three one is that he is a lincoln republican and you see the influence. there are not so many of them. today's republican party has become the party of the confederacy. there are a few lincoln republicans that are on the court, john paul stevens, david
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, harry blackmun from minnesota, kennedy is in that tradition. any elective politics, all of the rockefeller republicans from our childhood got pushed out of the party, the arlen specter's from pennsylvania, lincoln chaffe from rhode island, they got pushed out of the party. two, who was governor of sacramento when he was going up? a lincoln republican named earl warned. kennedy is growing up in warrneen's shadow. kennedy is a page in the california legislature. he is a little bit ronald reagan, but he is also a little
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bit earl warren. he is a northern california was thinkingd i about brown versus board of education which is an earl warned case and loving versus virginia, he talked about them both last week and same-sex marriage, it is not a coincidence that the one republican on the court who most comes fromgay rights northern california where we get it on alternative lifestyles. it?ery: what you mean get akhil: understanding the quality and -- understanding the quality and dignity and understanding our friends that have to -- that are born gay. kennedy feels that in a way that
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is very authentic. -- halfwayew up between san francisco and sacramento. renownedcalifornia is for its respect for alternative lifestyles, especially sexual freedom and equality. jeffery: you predict in the book that justice kennedy may write a landmark rolling for a divided court holding marriage equality. how will he do so and how will his california upbringing influence him? akhil: they're been three supreme court decisions affirming gay rights. one was about a colorado state constitutional provision. anthony kennedy wrote the opinion for the court, 6-3 affirming gay rights.
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the second and 1993, the supreme court said the state cannot prohibit consensual sexual relations between consenting adults in private. gay or straight. anthony kennedy writes it for the court in that case, also 6-3 , i believe. two years ago, the court says the federal government has to respect same-sex marriages that are legal in states, the federal defense of marriage act is unconstitutional, anthony kennedy writes that one, 5-4. in all of these justice scalia dissents, justice scalia and justice kennedy are both appointed by ronald reagan. in theth have grown up
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catholic church and represent rather different issues. cases, itd the would not be shocking to me if justice kennedy wrote the fourth in this series, just as earl warren wrote brown versus board of education in 1954 and wrote loving versus virginia in 1967 ending apartheid in marriage. those were 13 years apart, the great warren court book ends. argument,rd oral kennedy mentioned those two cases. they are about one dozen -- about a dozen years apart, that is how long it has been since we have had same-sex marriage. about ultimately musing these cases and the timing
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between them and -- we called the roberts court. and everything except the obamacare decision, the big decisions -- the swing justice has been kennedy. we are living in kennedy's world. i think it is an attractive vision. i defend a bunch of his decisions including citizens united. the chapter is called anthony kennedy and the ideals of equality. the first part of the chapter was based on a lecture i gave in sacramento in kennedy's honor 20 years ago. i tried updated saying here is what he has done since. i think he is the same person. who knows what he will do this season, but stay tuned. you would say to justice kennedy about his decision on the mccutchen case where you disagree.
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we have so much else to get to. there are two superb chapters on the fourth amendment, the first massachusettsout view of the fourth amendment, you mentioned chief justice roberts, and a recent decision about cell phones he quoted a and john adams statement that at that moment a child's independence was born here it -- was born. you said adams was wrong but it was another series of cases that happened later, namely the wilk es case in london. in 1761, there is this episode that unfolds all the writs of assistance
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controversy. a lawyer argues the patriot cause, john adams is in the room . 50 years later he says that is when the child of independence was born. it does not make any of the newspaper, the declaration of independence does not talk about writs of assistance. you would think if they were a big deal the declaration of independence would have mentioned it. i do not think it was particularly influential at the time. why did john adams say that? he thought he was the center of all things and he had to be in the room when the real thing happened. all the better that jefferson was not there and it was massachusetts first and the virginians are johnny-come-lately's.
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you can see why adams might think that but the evidence does not support it. adams is a harvard guy, so there is a harvard thing. the first supreme court is ofking about writs assistance as being reported -- being important sites another harvard guy named justice gray who wrote a book about the writs of assistance. law clerk?'s a guy named louis brandeis? who is his protege? a guy named frankfurt. -- it isotal harvard all about massachusetts and massachusetts was first. i love massachusetts. i did my clerkship there. they think of themselves as the hub. the center of all things.
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the center of the american revolution, the hub of the medical profession, the hub of the universe. it is not quite so. it turns out not to matter that -- hereause the court is who was a big deal, a fellow as injohn wilkes, wilkes-barre, pennsylvania. wilkes county north carolina, wilkes county, georgia, john wilkes booth is named for john wilkes, ashley wilkes in gone with the wind is an alusion to this. bit after, the judge is named camden as in
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our friendsjersey, in baltimore, the orioles play at camden yards. deal and wilkes is a big deal and you can see it on a map. otis, not so much. the last chapter is the story of camden. you have heard about the great william penn and the great city of philadelphia. then i say there is this little rodney dangerfield place across the river called new jersey and this gritty place called camden and actually they have a story to tell. lord camden was a great man. era.arl warren of his he believed in american independence and liberty and i tried to tell the story if you pay attention to what camden said it has interesting
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implications for how we can protect fourth amendment rights in america today. jeffery: you see how this great teacher just by uncovering the stories can bring the cases behind the constitution to life. there are fantastic questions from the audience and i had better start asking them. here is the first one. didn't the importance of geography also influence jefferson vis-a-vis the louisiana purchase? akhil: most people are taught that the most important constitutional decision ever was marbury versus madison, right? barely makes my top 10 constitutional decisions. judicial review, but judicial review was ,stablished in america before
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as a matter of state constitutional law way before marbury. next time the court strikes down an act of congress is not until dred scott 60 years later, and dred scott is made up. the issue of liberty involved in marbury, there is no issue of liberty. it is about original versus appellate jurisdiction. i wrote an article about it and it bores even me. marbury is not that big. what is the most important decision, i told you, the first two. the most important decision was resist's decision to unilateral secession and later to free the slaves. those are the big ones. if you understand that, i say marbury was not even the most important decision of 1803. what was? the most important decision is
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called the louisiana purchase. presidents are huge constitutional decision-makers. even if you think judges are important, in the constitution presidents picked judges. but bush v gore, and i have have a chapter on why that was an outrage, disgrace. judges were picking presidents rather than the other way around. i've a chapter on florida and .ush v gore are that is big. that doubles the land mass of america. it ensures we are going to survive as a nation, even if washington, d.c. is burnt to the ground and baltimore and fort
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mchenry almost fall, we can retreat into the hinterlands sufficiently because we have all these lands to retreat into. that the french are not going to establish a toehold here or the spanish. we have checked the british out. the louisiana purchase is a big deal and it is all about geography. it opens up pathways to texas and california, from sea to shining sea. this book is in the woody guthrie tradition. california to the new york island. principles are strict construction, but thank god he is a hypocrite, because he does not follow his principles. he would have been a full not to grab this territory. the louisiana purchase, very big , the emancipation proclamation very big, lincoln's decision to
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resist unilateral secession very big, marbury versus madison? much smaller. jeffery: we have a second amendment question. it concludes by saying the founding and reconstruction periods might provide a special focus on the concerns of african-americans about local police departments, and i'm answering this question concerning the second amendment and the search for its original intent. you go back to the founding of the nra at reconstruction, why not go back further to the virginia declaration of rights, the actual origin of the amendment, a well regulated militia, no mention of the right to bear arms? akhil: let's pay attention to the state constitutions because federalism is important in america. what was invoked was what were
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the virginia counterparts to the second amendment. in my massachusetts i tell you about the state search and seizure provisions of the massachusetts constitution of 1780. there is an interactive display over here where you can push buttons on a screen and see state constitutional counterparts to various federal constitution language. this is about states as laboratories. everything in the federal constitution, from start to finish, the states did first. states have written constitution first. three branches of government and bicameral legislation and separation of powers. the framers stupidly forgot the bill of rights when they drafted the thing and that was an obvious omission because states had bills of rights. state dots -- states got rid of slavery and gave blacks and
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women the vote first. almost everything in our constitutional tradition, states have done first. suppose we did not have a second everyent at all, almost state constitution has a ,rovision about arms in america and today's state constitutions are not just about militias. i do not own a gun, guns scare me, but in almost every constitution there is a right to have a gun in the home for self rejection. it is part of our tradition even if we did not have the second amendment because we believe in unenumerated rights. one of the way to find unenumerated rights is to look what is in state constitutions. i do great student that wrote about unenumerated rights and how you could find them in state constitution. that is the student that is here.
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liberals believe in privacy. that is in state constitutions but not enumerated in the federal constitution. if liberals can have unenumerated rights to privacy, i think conservatives can have it for a gun. want sex in the home, conservatives want guns, give them what they want. let's be tolerant in the northern california tradition hurried even if -- in the northern california tradition. even if there were not a second amendment, there would be a right to have guns in the home because every state constitution has one. forget the founding. you live in lincoln's house. a slaveholder, he does not free the slaves. enough with this jefferson stuff. you live in lincoln's house. lincoln lee -- lincoln reinterprets jefferson, fourscore and seven years ago
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our forefathers brought forth a new nation conceived in liberty and dedicated to the proposition that all men are created equal. i am wearing my abraham lincoln time. i got it here at the constitutional center. a very good value. jefferson said all men are created equal, that is what he said right over there, but he did not live it, he did not breathe it. he did not do it. lincoln lives it, breeds that, does it, -- lives it, breathes, does it. that is what the new national constitution is all about, celebrating the new birth of freedom. in the new birth of freedom the bill of rights applies against the states. the original bill of rights was only applied to the federal government think of a bill of rights case. everyone is not a bill of rights case, it is a 14th amendment case. the first amendment is only about the federal government.
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the 10th amendment limits only the federal government. all the cases we think of doubt -- all the cases we think about -- roe versus wade, that is texas, lawrence versus texas. connecticut, we live in lincoln's house. hugo black is a 14th amendment world. the framers did not use the word bill of rights. abrahamit that because lincoln called it the bill of rights. that,ou understand lincoln's generation, the framers of the 14th amendment believed in the freedmen's 1860 six,l of 1846 -- which is a companion to the 14th amendment proposed in 1866. this is a direct quote -- "every
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citizen is entitled to personal liberty, including the constitutional right to bear arms. " they did not love militias. militias took up arms against lincoln. they like armies, national armies. they understand that it is not about the militia anymore. black people in their homes are entitled to have guns for self protection because they cannot count on the cops to protect them. -- thats are outlawed is what the framers of the 14th amendment vision. the nra is founded after the civil war by a group of x union army officers. that is part of the story. the second amendment vision is still important, it is more about the military, and here's what it says. the military should look like us.
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it should not be an alien occupying force, it should not a proto-military-industrial complex. it should do what we tell them to do. that, it has to be representative the way juries have to be representative and the house of representatives has to be representative. the militia and the people are one and the same. melissa islated necessary to the security of a free state read the people in the melissa -- in the militia are one and the same. people in the military bear arms. today, that is an. we do not have a militia or it what are today's militia counterparts? police departments, and they should look like the community. that is ferguson, that is baltimore, that is new york city. at the national level, we have lincoln's army. it should look like america, too.
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women as well as men, blacks and whites, gays and straights, that is colin powell, tom hanks in "saving private ryan." that is not the founders world. they had local officials. that is modern america, the army should look like all of us. colin powell, women as well as men, gays and straights, blacks and whites. there is a collective vision to the second amendment and an individual rights vision. you need to understand the founding and the reconstruction, lincoln and the 19th amendment, once women get the vote, they have a right to serve in our military on equal terms. that is the story i try to tell in wyoming, it is gone country, but it is also the quality state. that is its other nickname. it was the first state have a woman elected governor, it is
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the first to let women on juries , in 1870 when it was still a territory. the union is creating these territories, in 1870 wyoming promises women equal pay for equal work. wow. [applause] jeffery: we have time for just one more question. here it is. you compare justice black to justice thomas. how would you compare their decisions? if you want to come down to washington, d.c., in three weeks, i am going to be appearing with justice thomas at the national archives, maybe .-span will cover that event justice thomas and i disagree on certain things, but i think we
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share of fidelity to the , we takeional project the text very seriously. i find justice thomas underestimated in the same way hugo black was underestimated -- we yankeess can be smug about people who have southern accents and we think that means they are not that is how lincoln was underestimated and hugo black was underestimated. that is true today of clarence thomas. veryd his body of work significant. i do not agree with that, he is flashy the way anthony's gilead is, but there is a steadiness to it. a biz, but scali there is a steadiness to it and a humility to it.
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he is very open to the possibility that he may have made a mistake. he does not want to keep making mistakes. i am hoping he is going to get involved with the national constitution center. both you and i are trying to get him involved. jeffery: it would be wonderful to get him involved. to hiswhen you go chambers, there is a portrait of lincoln there. lincoln is his hero, too. lincoln should be all of our heroes. the story of the constitution is north ands us all, south, east and west, liberal and conservative, republican and democrat. that is what the national constitution center is all about. involveng we can justice thomas moore and the national constitution center.
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you can see from this great teacher what it was that kindled my passion for studying the constitution and made it the focus of my life. akhil, for inspiring me and millions of americans, i want to thank you. thanking akhilin amar. [applause] thank you. jeffery: come buy the great book and he will sign downstairs. akhil: you made me look good. thank you.
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>> on history bookshelf, here from the best-known history writers of the past decade every saturday at 4:00 eastern. you can watch any of our programs at any time when you visit our website, c-span.org/history. you are watching american history tv all weekend every weekend on c-span3. this weekend on american history tv on c-span3, today at 6:00, on the civil war. the final military maneuvers that led to general robert e. lee's surrender. >> all the skirmishing day today, all of these dramatic
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fights up to the last morning breakout attempt i john gordon at appomattox, they are full of high drama and emotions are running high. the union are out for blood, they sense this is the end game. lee will not quit and long street does not want to quit. the army is crumbling around them. >> then at 8:00 on lectures in history, professor montoya on the ludlow: are strike -- on the ludlow coal miners strike. >> there is an exchange of gunfire. both sides think the other side is the one who shot. the national guard will attack the camp. by the end of the day, the national guard decide to pour kerosene on the tent colony and light it on fire. 6:00, the american
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treasures exhibit at the national constitution center. he saw that the articles of confederation were too weak. he insisted that we the people of the united states as a whole are a country, not the people of each state. history tv. all weekend, every weekend, only on c-span3. sundays at 7:00 eastern on oral histories, a series of interviews with prominent photojournalists. this sunday, a conversation with frank johnston about his photos and career. out,en they brought oswald he was within three feet of me when jack ruby leaped out from
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behind me and went between bob jackson and i and fired the gun. we were all thrown to the floor because there must've been 100 police in that basement. >> watch our photojournalist interviews on oral histories sundays at 7:00 eastern on c-span3. denyow what is going to that the doctor gave senator menendez trips on his private jet or the campaign contributions were made, and no is going to deny that senator menendez did lobbying with various officials. the key comes down to why he did it. why did it happen? is government is alleging it because of this corrupt relationship, so menendez was the gift,exchange for
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and the senator is claiming it is because the doctor is his friend. >> sunday on q&a, former law professor talks about the ongoing trial of senator bob menendez, and other prominent corruption cases. sunday night at 8:00 on c-span's q&a. >> in the early 1850's a white minernamed myrtilla opened a school for african-american girls, the first of its kind. until anfrequently arson attack cars the school to burn down in 1860. next, kimberly bender talks about the school's impact and legacy. this is about 45 minutes. >>

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