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tv   National Constitution Center Marks Freedom Day  CSPAN  July 6, 2017 9:43pm-11:03pm EDT

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the top of the senate agenda when it returns next week. on friday, the alliance for health reform looking at proposed changes in the house and senate health care bills. and how they could impact children, the disabled, opioid addiction treatment and a state budget. you can watch live coverage at noon here on c-span. c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies. and is brought to you today by your cable or satellite provider. the national constitution center in philadelphia held their third annual freedom day celebration. marking the launch of the center's national commission, looking at how founding father james madison might view congress, the presidency, the courts and the media today.
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this is one hour, 15 minutes. ♪ [applause] mr. rosen: ladies and gentlemen, welcome to freedom day. [applause] i am jeffrey rosen, the president of this wonderful institution, which is the only institution in america that brings together citizens of different perspectives to unite around this beautiful document
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of human freedom, the u.s. constitution. [applause] mr. rosen: freedom day is the highlight of our programming here at the national constitution center. it was launched on april 13, 2015 to further our inspiring mission and to encourage citizens around the country to celebrate and educate themselves and debate the meaning of freedom. mr. rosen: to acknowledge the visiting area founder of freedom day the woman who conceived of this great celebration and has made it a permanent part of the freida libby. [applause] mr. rosen: the first two years of freedom day brought together the leaders of america to debate the meaning of issues ranging of
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the future of religious freedom to the future of free speech. today we are gathered for a meaningful event. this year, freedom day launches a new two-year initiative that is going to be a centerpiece of our work. it is a national commission called, a madisonian constitution for all. this important commission will ask what would james madison and , the framers of the u.s. constitution make of our current presidency, congress, courts, and media? and how can we resurrect madisonian values of the rule of law and limited government and constitutionalism today. ? this important commission is convened at a time when there is great debate in america and around the world about the tension between populism and constitutionalism. james madison and the other framers were not populists.
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they studied failed democracies like greece and rome. they recognized that unchecked mockracy could lead to rule. in federalist 10, madison has two crucial stations. he says, in a republic, as opposed to a democracy, first citizens should never be able to directly instruct their representatives. the idea of tweaking representatives -- tweeting representatives would not have been a madisonian vision. [laughter] mr. rosen: the second thing he said is that we need to dictators between referenda and decision-making. the important decisions are delegated to the people's representatives rather than off votes.e
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so the idea that we designed a system with separation of powers and limited government and individual rights in order to promote deliberation was crucial to the madisonian project. and yet we know that in america and around the world, there are new technologies and forces that are threatening this new social , media technologies making it possible for citizens to rest -- express themselves in quick, mob like voices rather than through thoughtful deliberation. like polarization and the self sorting of citizens into filter bubbles and echo chambers are challenging the deliberation that madison thought was necessary for the future of freedom. therefore, we have convened some of the greatest minds in america from all four branches of government, the three branches and the fourth the state, to
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address this national question. i am glad you have taken the time to come to philadelphia and many more watching us on c-span and other places. we are going to launch this commission and bring you some of the greatest thinkers to ask this question. what would the framers think of our current fixations? and how can we resurrect madisonian values? and for the next two years we will be fanning across america holding podcasts and , commissioning white papers and we will issue reports and in two years we will reconvene here in philadelphia and propose some solutions that we hope will cast light on one of the most crucial questions. what is so excited about this project, in addition to its importance, its civic important and constitutional importance is the remarkable bipartisan support we have received. i am thrilled to report that our
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commission will be cochaired i buy a group that includes our visiting scholars here at the center senator , mike lee and chris coons and representatives in the house. a wonderful group, united by their love for the madisonian constitution. and our commission is also women i amy two about to introduce you to. and we will have a conversation. lee liberman otis, and caroline fredrickson. the president of the american constitution society. the leading liberal and conservative and libertarian lawyers organization of america bound together to support this amazing project. it is important and exciting and we will have an incredible series of conversations. before beginning come i also thank bill, who
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has come from the rosedale foundation and has provided seed money to start the foundation. they are so committed to preserving madisonian values and discourse. thank you very much. thank you, bill. [applause] mr. rosen: let's begin. fasten your seatbelts and please join me in welcoming the cochairs of them madisonian constitution for all, lee liberman otis and caroline fredrickson. [applause] mr. rosen: welcome. it is such a thrill to have you both here in person. i really need to tell you that the collaboration between the federal society and constitution society under the leadership of lee and caroline has been
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central to everything the constitutional center has achieved in the past couple of years. the centerpiece of our initial work together was the interactive constitution which , many of you have heard about. if you have not, go to the app store and download the interactive constitution. go to and find this thrilling tool where caroline and lee and their great organizations have nominated legal scholars to write about every clause of the constitution describing what they agree and , disagree about. an in addition to being tool, itnary toll -- models what madison thought about democracy. i thrilled to have enlightened am -- and enlightened every time i sign onto this amazing and free tool and learn from this great tool. first of all, please join me in thanking lee and caroline.
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[applause] i am so glad we are off and running on the next phase of our collaboration, this great madisonian commission. lee, why is it important for americans to study what madison thought about the constitution and why he is important today? ms. otis: i think basically the constitution is premised on the notion that we can form a government. i think as madison said in federalist one, based on reflection and not on passion. but it also set up institutions designed to do that and adherence to its institutions is central to whether the experiment is going to be a success. which hamilton notes at the
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beginning of federalist one is an open question. it is not clear that this is a possibility, to create a government based on reflection and reason, as opposed to tradition, hierarchy, or something else. mr. rosen: a government based on reason and reflection. what a beautiful statement. caroline, acs is devoted to the madisonian constitution. although the organizations sometimes disagree about the meaning. why do you think it is important for americans to study what madison thought today? ms. fredrickson: you know i just , first want to thank you for having this event here in that e national constitution center. it is so important, the events you put on and the exhibits that people can see here. i would say that we at acs and the federalist society, we don't
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agree on a lot in terms of the constitution, but we do stand shoulder to shoulder when it comes to the important work of educating the public about the constitution, ensuring that people are reading it, thinking about how it came to be, and anticipating the challenges that we face in the future and how the constitution will protect us and where it needs to change. so i think these dialogues are important for the resilience of our democracy and i would also just say that i am the daughter of a historian, so i also think it is important to understand our own history in order to understand the future we are walking into. mr. rosen: beautifully said as well. what did your dad teach? ms. fredrickson: american history. [laughter]
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mr. rosen: magnificent. i think all of us were blown away by the success of this constitution, which has gotten 10 million hits. the ap exams have made it a centerpiece of the curriculum. we are working with an academy to bring it to schools across america. it has been thrilling. it has really been a model for so many collaborations including debates that have spanned across the country from d.c. and new york, to san francisco and chicago where organizations , nominate debaters and educate americans about the account -- about the constitution. why is this collaboration important? my otis: i should also add thanks of course to caroline's further brilliant leadership you have been providing to this institution, and your tireless and energetic efforts to organize these splendid debates. thank you very much for that.
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mr. rosen: thank you. that, i thinkess that, it turns out that it is possible -- one big question i think about the constitution is to what extent does it have a meaning that is possible to discern. one way to figure it out is by hearing both sides, about people's different views about what it provides. and these debates are a wonderful opportunity for people to do that. and i think everybody, including the debaters, find that they learn things from them about the constitution and that enables them to make judgments, not on the basis of what they would like the constitution to mean, but on the basis of arguments
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about what it actually means. and i think it will not work, the constitution will not work if people are just deciding, i really like this result and therefore i am going to conclude the constitution says that. the civil,t having vigorous, energetic discussion about what it actually says is in a sense just central to the whole enterprise of having constitutional government. mr. rosen: that is beautiful, too. the two values of the importance of bringing people together for face-to-face discussion, to hear unfamiliar arguments and the importance of separating your political from your constitutional views as functions of the debates. caroline what do you think the , virtue of the debates both in person and online has been? and why are they important? ms. fredrickson: the debates
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have been fabulous. i highly commend them to you. they are online and you can watch them. they have touched on some of the most important constitutional issues we face as a nation. to hear bothility sides is important in refining one's own bloom point -- one's own viewpoint and engaging with this important document. we have had some interesting ones. the last one which dealt with the supreme court justices. and term limits. it was unique in that the debate was structured to have one oneralist society versus american constitutional society person on each side of the debate facing off against each other. the debate is always not so clear-cut how it falls liberal or conservative. similarly a lot of arguments about interpretive methodology from originals him to living
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constitutionalism. it is also not so clear-cut. there are some of the liberals that are in originalists and conservatives that believe in the living constitution. of whatout your notion falls on the political spectrum. thinking about how should we how do wedocument, extract meaning from it, and how do we apply it as law? seeing that applied to a current debate, in our own personal lives, these things are connected. the constitution has a deep substantive basis for so much of what we do. i think why the work of the national constitution center is so important, along with the american constitutional society, we keep reminding people that the constitution has force and that it has meaning, is actually
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real as it is applied to people's lives. mr. rosen: that is beautiful too. >> [laughter] ms. fredrickson: we can't go wrong with you jeff. mr. rosen: we are told where we live in a society where conservatives and liberals can't even have civil discussion. here you have lawyers of two main organizations in america collaborating o the importance of the constitution, and convergent-- and that this unites us as a nation. -- i amted he will excited you will share this mission. thinking -- in thanking them. >> [applause] >> thank you for including us. mr. rosen: we are now going to jump into our first panel
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involving the media. and gentlemen, this is an extraordinary group you are about to hear from. --se leaders of journalism we have with us mark thompson, the ceo of the new york times, gary rosen, editor of the saturday review of the wall street journal and author of a brilliant book about james madison, and the head of politics at msnbc. when participation started mark thompson came to the constitution center to discuss his brilliant new book called "enough said," this discussion about how the degradation of rhetoric that began during the classical period as containing the passions of the crowd may today be in fleming it. it is a tour de force.
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i invited mark to join this commission. he agreed. you are about to hear from the top leaders in america discussing one of the most urgent questions of our time, which is how we can preserve madisonian preserve values in a time where they seem to in siege? please join me in welcoming them. >> [applause] >> mark, you started all this off in your beautiful book. just sent me the epilogue you drafted for the new addition, which powerfully takes on the question of populism versus the rule of law it and post the -- law post brexit and post 2016 election.
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if you could distill for the , thence your argument threats toward public deliberation and why. ofk: in a way, my day job being chief executive at the new york times, and the subject of a project i began four years ago about rhetoric -- when donald trump comes for lunch at the new york times, the two things come together. i feel like i am now living in the pages of the book. tuesday the obvious -- to state the obvious, we are seeing now two of the important pillars of broader public life.
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particularly in america, both of them coming under attack. i don't think that is an accident that populists regard both mainstream media and to some extent the legal systems in our countries as being enthralled tod elites and the establishment, and therefore worthy of attack. the phrase enemies of the people used by president trump towards the new york times and other media in this country. the same phrase "enemies of the people" used by the daily mail to describe judges that have the temerity to suggest that parliament decide whether or not the former article which begins the process of the u.k. leaving the european union, whether that article 50 should be triggered,
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that that should be discussed in parliament. the reaction of one of our was to accusepers those judges of being enemies of the people. there is a more sharp and somewhat more naked attack now on some of the structures in both of our countries. my understanding, i am sure the weakest on this stage, central 's conception of how you think about government, which is absolutely of the people, but not prey to sudden and extreme passionate gestures by the people. some of these structures, it seems to me, straightforwardly under attack. mr. rosen: that crystallizes it. the idea that any elitist institution like the new york times is an enemy of the people
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and that the sudden passions of the people should be tamed is the madisonian ideal. gary, you're a scholar of madison and have written a book about his thoughts. what are your thoughts on the framing between this problem in the constitution and what would madison make of our media today? >> we have to stipulate from the start that madison would look at our media world today and consider it an absolute nightmare for constitutional democracy. madison's whole political project was to figure out ways passion,nd direct extreme expressions of interests. if you read the federalist papers, it is about these institutions that are meant to channel and refine all of these and notions floating around in our political life.
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were to see our world today, we have all of these incredible technologies that all of us use and appreciate, but which are so brilliant at magnifying and transmitting ideology impassioned points of view, riling up people in ways that have nothing to do with deliberation, analysis on the public ends. they really are what we have. these incredible tools for generating what madison called section -- called faction. by passion and interest that don't have a broader idea of the public's good in mind. he wouldn't like it. he wouldn't tweet. [laughter] this is important as well, he would see our institutions, our media, especially our quality press as an important check on the excesses of our government.
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he himself was a participant of that in his own day. the federalist was not written as a philosophical book, but as a series of newspaper pieces. madison himself in the early days of the republic, especially with the federalist party was gatheringin his mind power in this disturbing way, he took to the press to rally people on behalf of the constitution. he would see what a lot of the press is doing today as serving an important constitutional function. apart from different policy debates. do we think immigration should be handled this way or that way? what do we think about taxes? i have been impressed over the by what the months better segments of the press are doing to highlight what our system of government is about, what it means to have courts
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that have a certain authority and mandate, what the responsibilities of the legislature are, what a president's authority is like, what are its bounds? how far does the president have authority? what are its limits? that has been a constructive role. the question is if we are thinking in a madisonian way of reform, how might we do more of that to make the press an even more substantive part of this wider system of preserving constitutional government? >> we do want to think about reforms. msnbc's ratings are through the roof. you are doing such important journalism before and after the latest election. yet as you listen to gary and mark, are you on cable news subject to some of these populist pressures they are
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lamenting to get the biggest ratings amongst your base, and can you imagine an msnbc audience getting through federalist 10? that the costned of these high ratings at the cost of the populist force, and what can we do about it? bit at amazed at little the ratings and the worship. ends,an election cycle and the public was very engaged in this election for all of the obvious reasons usually after an election the audience goes away a little bit. they are tired. they want a break. and the news cycle returns to a regular pace that is not wholly focused on politics. this collection for a long time felt like it didn't end.
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i think just because of the circumstances of the results, the split between the electoral college win and the popular vote. 54 percent of people that voted did not vote for the president, they voted for someone else. last time i was in this room msnbc hosted a townhome with hillary clinton and bernie sanders. in april, right ahead of the pennsylvania primary. i think the audience -- and when i say the audience, i really mean voters -- i think they are truly engaged and want to understand what is happening. they want to understand what this presidency is about. they want to understand what it means to have one party in power in washington. this is the first time since the 1960's, the democrats have been
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part of power everywhere. they really want to know -- and i see politics for nbc news and msnbc -- they want right reporting. i am sure all of you do as well. they want great journalism and great reporting. they don't want punditry or screaming, which is why i think for a place like msnbc with the kind of folks they have on in prime time hours, that is what they are looking for. to seebeen a surprise people more interested than ever before. mr. rosen: that is a heartening and optimistic observation, and our experience at the constitution center is that people are hungry for constitutional wonkery, and will listen to technical podcasts.
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it suggests that people want to educate themselves and develop their faculties as citizens. ends onur last chapter a not terribly optimistic note. you think these populist phenomenon may become more entrenched. and yet you identify some reforms, the need to shore up institutions among them. tell us more, given the seriousness of these populist forces, about what can be done to shore up these forces. mark: my thought is that some of the underlying drivers of populism, automation, globalization, global migration, are likely to become more intense in the coming decades, and in a sense we need democratic systems, ways of debating and discussing how to
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deal with these issues, which will come under more pressure than they are now. i think the worry is that if the level of disruption in 2016 to 2017 was enough to produce the consequences we have seen, what will it be like in 2036, 2046, if we don't do something? if i focus on one thing to do with institutions, it is really about listening. it seems to be at the heart of the idea of a representative system of government, the idea of representatives who are effective at listening to and understanding the people. gesture bytronger mainstream politicians, but also perhaps by the media to listen intently to the public at large and to reflect our public
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concerns as a way to express them, in the case of the media, but also by expressing them to some extent, to give them a channel so that it does not build up in potentially negative ways is part of what we have to do. throughout my book i am very struck by the role of emotion. when aristotle thinks about persuasion, he thinks about reason, logos, but also pathos nad ethos and the role that emotion plays in the way that we persuade each other of things. the one thing i would say, if you can't find an outlet and way of understanding and responding to emotion, almost any system of democratic government will eventually come under acute pressure.
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it seems to me we need a greater responsiveness in our way onceons, and a again of integrating the concerns of reason, evidence, and argument, classic enlightenment concerns, with enough empathy that we bring enough of the people along with us. populism is a warning sign to elites of the -- about the needs to listen. heidegger talks about the art of listening. i would say about our institutions that recapturing an ability to profoundly -- listening does not mean compromising, but profoundly listening to and trying to understand the whole range of respective -- range of perspectives and making sense of people's emotional responses to events part of the way we develop policy and the way we
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think about how we covered the world. you could argue institutions have been less good at it. mr. rosen: how can institutions, and in particular the media, listen to and reflect popular concerns and emotions without mirroring them in a demagogic way? there is a wonderful book that describes madison is worried about media technologies, and he is concerned that the broadside press may not be able to unite the concerns of merchants and farmers and different classes in a way that will promote public reason. now the technologies are much more democratic. how would madison reconcile this? one way to think about it is the proper and possible scale of real democratic deliberation, people feeling as if their
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institutions reflect their wants and needs. a in the media could do better job of reminding people of this complicated compound republic we have, with different levels of government, with different responsibilities. in a way, moving back toward that end -- toward that fantasy politics andl of expressing themselves is a positive thing. we have now a republican congress, a controversial and popular republican president. we have seen all of these interested reversals on basic issues of local and state control. it has flipped the usual dynamic. we have all of these democrats and progressives saying, we are
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tired of being bullied by washington, let us govern california the way we want to, or let us have our sanctuary cities. i think that is a very positive turn in our politics. my hope would be that wouldn't just be a way of saying, we disagree with you on information fightimmigration and will with every tool that we've got. you can lead to a discussion, one of the problems we have in this country is that we do everything at the national level too comprehensively and it leaves those in localities in the states feeling disempowered, pushed around, and ready for some kind of populist upheaval. i am ready to see some sort of principled discussion about the boundaries of level of government. that is going to cut both ways for everyone. if you think a city should be able to shelter undocumented immigrants, an application of
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that might be that those same localities could have their own policies on transgender bathrooms and on questions having to do with gay rights, with things that will not make liberals very comfortable. we need to step back this weekend from those substantive disputes and think about structure. mr. rosen: great, our first solution of the evening, the states as laboratories of democracy. it was the great louis brandeis who talked about small-scale communities. have you ever been a brande isian? raise you hand. >> [laughter] mr. rosen: an overwhelming minority. ideas is that only in
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small-scale communities can people master the facts that are necessary for personal and professional government. large-scale institutions are too big for anyone to understand, and they take reckless risks and often fail. our immediate environment is not conducive to small-scale brandeisian experience of democracy. we have a world wide web and we have a need to get worldwide ratings. although younger, all have been optimistic about responsible listening, that the structure of the media environment will lead to demagogues and mobs? -- what?r sure it will no. mr. rosen: a serious question, you don't think it will? dafna: i will take it on a couple levels. when notion people have too
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often is about ratings. we all work for businesses. the new york times is a business, the wall street journal is a business, msnbc news is a business. it is pretty obvious when you watch or read it, for people involved in institutional journalism or news, that is the number one thing we feel we are rewarded for. i feel a -- i don't feel a sensationalist play in that regard. i feel like the public is so engaged and interested in institutions that honestly i worry a little bit in terms of -- fromfficial efforts the white house, to be candid, in sowing doubt in institutions. i feel like the public wants to safeguard those institutions. i think that the wide-open
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democratic since -- democratic sense that you get from being able to access information on the web, how that might play out for people, i believe they are looking more toward a bigger picture, things they can trust. the one thought i want to say on and, on gary's smart ideas solutions and what the cost is of the localized sense of empowerment, i think some of are lookingzations for at the state level, those bubble up. there is not one sanctuary city. in california, there are movements that are all over the country and find their homes everywhere. that is in one way where they
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would unify and look for joint solutions that would take them across the board. mark, please respond to everything you have heard. concretep up, some solutions we can take on the road for 2 years. mark: one thing i want to say is always localg is and specific. thatf the great roles journalistic organizations play is to report what is happening in different parts of this country and the world, then share that with everyone. strengthsof the great of classic media, that you have disciplined professional, massive empirical research on what is happening in state and in cities.
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one of the contributions the media can make is in a sense that texture. if there is to be a great national debate about what is best decided and at what level in the country, i think the media can play a role with that, a significant role. but that takes us on to something else we won't have time for, but which is how we try and work towards sustainable journalistic institutions at every level of this country. although warren buffett was recently quoted saying of american newspapers, only two newspapers, the new york times and wall street journal have at the moment economic models likely to be sustainable, this country depends on having an effective journalistic resource
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in every state, in every city. that is under intense threat at the moment. a revivingt rejuvenating democratic system would look like has got to have regard in how we ensure that more journalistic institutions can continue to report and share what is happening in every part of this country. mr. rosen: that is a crucial point. we need facts and journalistic institutions to play a role in supplying these facts. gary, some described this as a post-fact society, where citizens cannot agree on what facts are. that is in a fema to what -- anathema to what madison described. gary: i think i told you from
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the start, this idea that madison had this robust notion of public reason i have to quarrel that. he was pessimistic about the popular reasoning, about people bringing some disinterested point of view to politics. he had this wonderful line in the federalist where he said, if every opinion citizen had been a socrates, every athenian assembly what is still then -- would have still been a mob. she was realistic about this. for him the question was, in what way can citizens of very different interests and commitments and capacities participate meaningfully in the government? some of it has to do with the information available. i don't have any big solution to a problem.
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we are old media. even cable news is old media, but you are newer media then we are. the basic media reality is defined by google and by facebook. 's counterpart had this piece in her paper the other day that was pretty tough on google and facebook. ly that is noto only ruining quality press, but is more than anything else responsible for the prominence and destructive effect of fake news. they throw things out indiscriminately and have a business model that depends on not discriminating among kinds of news. i know they have started these different experiments with fact checking and whatnot, but in the end, and this is my naive
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that editors are important. that there is a responsibility on their part not just to tonibalize our work, but impose standards of their own. this is against what he had been about from the start, but i don't see how even our limited politicsontributed to as possible until something important changes, until these new ways of channeling and writing information work -- and spreading information work. but theed to wrap up, question is obvious, is it google and facebook's fault and how can we address the problem with fakeness -- fake news? >> yes. [laughter] no, i really second what gary
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said. i think we are in the business -- the ratings model is not being fake news for us, right now. that is a big part of what we are doing, the fact checking and rigor. i went back and looked at, you know, some of the resident -- tweets, when he used the term, there was a study about when he used the term fake news. he nearly always uses it when talking about, in the context of reporting on the russia story that a lot of us are following. that is when he uses the phrase, fake news. to me, that is a big part of what we are kind of trying to
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push against, the notion of -- to me, it is not is it google or facebook, who is responsible for president pushes fake news. he is an incredible kind of publisher on his own of that. that is something i think as a society we need to grapple with. i think that is what happening -- is what is happening to all of us now. beginning forous a conversation on national media. please join me in thanking our panel. [applause] >> my great pleasure to introduce our next panel, a treat. and an honor. the future of judicial topic you have a
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heard about mark thompson mentioned, headline in the daily justices being the enemy of the people after they ruled against theresa may in the brexit vote. we have been honored to have judge jeremy fogel to agree. he is a judicial educator, head of the federal judicial center, responsible for continuing judicial education. he has led an incredible series where people have converged to learn them of the future of the administrative state, race in the criminal religiousstem and liberty. he is deeply committed to judicial independence. i am so excited he has agreed to
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share with us. willll be moderating and interview to of our most this -- most distinguished appellate judges. -- chief judge of the united states court of appeals for the 10th circuit and chief judge of the u.s. court of -- sixthor the sick circuit. restore me in welcoming them. [applause] >> thank you very much. one thing i have learned working with jeff is i will never match his enthusiasm. [laughter] >> that doesn't mean i don't feel it, but when you are a judge you learn to modulate those things. [laughter] is really an honor to be here, such a great program.
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isope that part of it edifying as much as the first two were cured also a little bit about my colleagues feared they are terrific leaders and judges to they lead very different circuits. thee kohl's circuit is ohio,circuit, michigan, kentucky and tennessee. think about that format appeared -- about that for a minute cured he will talk about the challenges of being the chief judge in that circuit and how he has worked to honor the value of discourse in a respectful way. -- the othernch circuit is the 10th circuit.
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i have worked with both of these gentlemen a lot. it is not an accident they are here, i am very happy they are here. they were appointed by different presidents. judge cole was appointed by bynton, and tipped in which judge -- by george w bush. we're going to try and demonstrate is that despite philosophical differences and histories that we all have, we are committed to a common process and set of values. i want to start with judge timken which appeared the 10th circuit, and i want to point out that our latest supreme court justices from the 10th circuit. all of the tough issues. they had the hobby lobby case
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that talked about the role of religious choice in relation to the affordable care act. they had same-sex marriage, as had circuit. they have had clash of religion and government. tell us a little bit about how your court has approached these passionately divisive issues. >> thank you, i appreciate the opportunity to be here. i used to be introduced as coming from the high mountain ains wase legalized marijuana. [laughter] >> they have dropped that. haveaid-back of five may inhibited to the culture of our court. ofdon't have problems factionalism that maybe you see
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in other parts. ofve had 200 plus years developing a culture in the judiciary that is based on results and deciding cases respectfully. that is not easy, as was mentioned. we have had some of the most divisive, toughest cases. yet i have seen my court engage in a way that i would like to think is a model to other branches and institutions, in the way the engagement has been transparent, written product. we have to defend a point of view. i think that is what makes the third branch different. circuit, we have been blessed with strong leadership over the last 20 years. we have a very collegial
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reputation which we work hard to create and indoor there are reasons for that. three of our lust four chief judges have been very social and committed to collegiality. earned, it takes time and trust. we have great leadership from our chief judges. three of the four happened to be women, i don't know if that matters, but they were very intent on bringing people together. a lot of that is through systems we can talk about. you mentioned two things, and one is to put the -- one is to put things in writing. not just any writing, but legal writing what you are trying to be persuasive of other people. you cannot do that by tweeting. process.eliberative
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collegiality also seems to be a cultural value of the judiciary. not just a question of people wanting to be nice to each other. it is partly baked into how we see ourselves. do you think that is true? judge tymkovich: that is true. i've worked in every branch of the federal and state government. the third branch is very flat. there are only a couple of layers of management. i think that fosters certain esprit de corps, and as you come into our courthouse, the people that work for us we believe in the mission. it is true, a lot of us are active politically before we come onto the bench. but once we shed that put on our -- put on our roads and we have
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a chance to work with judges from every perspective, there is a shared purpose about deciding cases in a respectful way. it doesn't mean you agree about these, you could have divided decisions and fairly vigorous dissent. but it is not personal. judge tymkovich: the hobby lobby case, for example, was a 6-3 case on our court. there were strong positions on both sides. the dissent was about the law and reasoning come not about personalities. it is sometimes very tempting to write an extra word or adjective. judge fogel: maybe in the draft opinion. [laughter] judge fogel: i always told my clerks, we have a no snark rule, but not in the draft. get it out then. [laughter]
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judge fogel: the sixth circuit has also had some difficult cases. sixth was at odds with other courts -- other circuits. they have had a tremendous amount of capital litigation because of ohio being an active death penalty state. these are things that divide people. i actually would like to start -- nottions of you in a as positive a place. back in the 1990's, the supreme court decided the affirmative action cases coming out of the university of michigan, there was some fairly significant division that occurred in the sixth circuit to the point where judges were not speaking to each other and things were quite bad.
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when you became chief, there was still some fallout from that. i'm really interested in how you have approached it in the time you have been chief judge. judge cole: thank you, i would like to thank the center and jeff rosen as well having us. i became chief judge about three years ago. role, i havemy new been on the court about 18 years at that point, as one of setting the tone for the circuit. the court's mission essentially is to decide cases based on the constitution, upon statute, upon precedent, upon the record before us. one case at a time. was to meet that
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goal. i felt that we needed to do as good a job as possible as a circuit to make sure the public had faith in our work and that we were functioning impartially, influence, andn so, i decided that the first thing i needed to do was meet with the former chief judges. i met with my predecessors, who were extremely supportive, very good chief judges in my view. they have been very supportive ever since. that helped a great deal. goal was to meet with each and every judge on the circuit, because i wanted to make sure that we had an atmosphere where we could have reasonable discourse. i heard earlier speakers talk
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about that. i thought the way to get to that was for me to hear from the judges in terms of their concerns, their complaints, any criticisms they might have, i invited any thoughts they might have about my leadership or the circuit overall, and i have continued to solicit their input. i think that helped a lot. the fact that i went in and met with every one of my colleagues. there were several colleagues that have strong opinions. hard to believe that judges would have strong opinions about one thing or another, but they have very strong opinions and they wanted to be heard. inhink it is very important the courts and other aspects of society that we listen to one another. it sounds so simple but it is difficult. you talk about the affirmative action cases, those are cases
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that judges have very strong views. they are important cases, and we have passionate views about how we interpret the constitution and statutes, how we interpret the rule of law. the goal, in my view is to be able to have confidential discussions about these cases following oral arguments where every view is valued. my opinion about a case is no better or worse than any other judges do. judge's view. that was my goal. we have a large court. we have 16 active judgeships and another nine senior judges. that is a lot of people's views to be accommodated.
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it was helpful to me and i think helpful to the court overall for me to meet with them and set the tone for an atmosphere where everyone's you would be respected. judge fogel: there are two things in the jump out at me. one is that you intentionally, as the leader of the court, made this an important value. that it was important to you and you let people know it was important to you. and you took the time to make that a personal thing, that it was part of your relationship with your colleagues. the chief judges don't have any more power. , butare first among peers if you ever ask an article three-judge to do anything, good luck. it is really hard. you have to do it by persuasion. part of what you said that i think is important is that you made an intentional effort.
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it also appealed to something that apparently everybody was ready to buy into, which is that this course is part of the way we do things. as the judge just said, i think all judges want to get the issues right. we want to come to the right decision. we have different views on what that decision is, or the pathway to get us there. the important thing is the judges are able to have an open discussion where they can develop trust in one another, that the other judges are listening. and they are paying attention and giving some degree of nions.macy to others' opi judge fogel: you have to hide what you feel or fear you will
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get personally attacked you take that is different. judge cole: and you don't have to agree. more often than not, there are havers on which you disagreements, but you hope it will be principled disagreement and principled agreement. that is what i think is very important. judge fogel: i'm going to try and ask this question without implying any political view of my own. ae chief justice just made statement couple of days ago, he gave it the about judicial selection and he was commenting on the recent supreme court confirmation process. what he was saying was he worries that the way that process is presented to people makes it look like it is all a political fight. it is just like every other political fight that we have appeared -- that we have. and sometimes maybe it is, if you are looking at from a
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congressional view or interest groups. the concern he had is that the court internally do not work that way, and somehow it was giving and inaccurate impression about how courts actually go about processing the work we do. what do you think about that? judge tymkovich: i wish people had the plants -- the chance to be a fly on the wall after we hear oral arguments. have 12 judges on our court, but in important cases, we got together as an en banc court. theee the nature of discussion, the level of preparation and respect each judge has for another judge, i think it would be in example to other branches and institutions about how we do business. we don't decide issues alone.
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we have to persuade at least one other judge or seven other judges if we are en banc. life tenure means a lot of us will be together for a long time. having said that, our courts are very dynamic. i have been on the 10th circuit, we've had almost complete .urnover of our 12 judgeships it is a dynamic organization of people don't realize that because the supreme court is more stable and unchanging. i really think at the circuit observation,is my judges work hard to not predict that attitude. my experience with many callings around the country is that is true across the circuit. judge fogel: there are tens of thousands of cases that go to the circuit court of appeals. hears 75 or 80rt
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cases of year. these are the courts of last resort most of the time. another question is, how much of this is exportable to the rest of society? something of a close universe and that we of all been lawyers, come up as judges, we all go through a severe vetting process most of the time so that you get people you know are committed to this set of principles. think, weews is, i live up to the most of the time. to what extent can that be a model for others, and to what extent is it something as -- something that is unique to us as judges? judge tymkovich: i think a fair amount is exportable. we discuss our cases confidentially.
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the public doesn't get to see that part of our work. bacon here lawyers make presentations and judges ask questions from the bench, but you don't have the benefit of seeing our discussions. they really are very productive discussions. we spend a lot of time getting prepared for an oral argument. theink that helps deliberative process. the part that can be exported, i think, is the knowledge that you can bring together judges of many different that grounds -- different backgrounds who come from different parts of the country, different political parties, whose ideologies span from one end of the spectrum to the other, and there is the ability for those judges to talk
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about very difficult matters and reach some sort of decision. court, thellate decision making process the group one. every judge has to discuss the matter with two other colleagues. would ithe thing that i think would be comparable to other parts of society is the tolingness and ability entertain a very different viewpoint, yet give them your consideration. onhink we were very good job the courts in doing that. i think the circuit courts across the country, the courts 90%, 95%mous on around
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of decisions. the public hears a lot about the dissenting opinions, that most -- but most are unanimous by virtue of the work the judges put into the case, and the deliberations. judge tymkovich: there are systemic -- judge fogel: there are systemic checks. judge tymkovich: i fully concur. i think the notion of judicial independence gives us a sense that we will be around tomorrow, we have the freedom to delve into an issue and speak our mind replication.of i think we get -- we work to get
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the right answer. on my court we sit with every judge, every term of court on a rotating basis on three years. i will sit with every judge of my court. i think that level of familiarity rings a level of respect and understanding of their judicial methodology, their thinking processes for cases. i respect the way they arrive at an answer and i think they , andct my methodology, too as judge cole said, i think it leads to the nature of civil discourse that at least we can be an example. judge fogel: it is interesting, the independent, because this is another thing medicine fought madisond for -- fang fought very hard for, if you withthis conversation
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other levels, it is different. slaves, have organized opinions are used as political statements to a different degree. i think this is one of the reasons why the framers were so interested in tenure for federal judges. , just you don't allthe idea that we are insanely wonderful people -- because, in fact, and i remember after one of the things, one of the cases, i happen to have conversations with two of the judges on the three-judge panel that decided the cases and they came out ups and directions, and neither was very happy with the other in terms of what they shared with me. they were frustrated them and they were disappointed. it's not like we are not human. but it is like something else comes in to play when you are
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speaking in your official capacity. i think it is important, germany, for the public to judges go about ieir business -- judge cole: think it is important, jeremy, for the public to appreciate that judges go about their business in a very impartial way. we're trying to get to the right answer based upon each and every appeal that is presented to us. at the end of the day, it is important that the public has system of federal courts. and know that we are approaching these very tough, thorny issues that bring about a great deal of passion in a deliberative and impartial manner. judge fogel: i think we're just
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about out of time, and i like to think my colleagues for doing exactly what i thought they would do. [applause] and i think, and my right? we have a break? >> see you all at 6:00. thank you so much for being here. >> next on c-span, coverage of tosident trump's travel poland. thet, president trump and polish president, then president
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trump in krasinski square. then, hillary clinton on women in politics. >> c-span's washington journal, live every day with news and policy issues that impact you. coming up friday morning, we will be talking to local reporters from six states with republican senators whose votes are key to passing a health care bill, and ask what the senators are hearing from constituents. be sure to watch washington journal live at 7:00 a.m. eastern friday morning. join the discussion. >> on friday, we will take a look at the constitutional war powers of congress and the executive branch, hosted by the federalist society. speakers include former and a lawn professor. starting at 12:15 p.m. eastern on c-span two. >> this weekend on book tv on
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c-span two. saturday at 11:00 p.m. eastern, pat buchanan talks about his book "nixon's white house wars," on his time as senior adviser to president richard nixon. >> they were going to break nixon as they broke lyndon johnson, but at the end of that -- 1969,0 year, richard nixon was that 68% approval. astonishing. here was nixon seven years he has been written off as the biggest loser in american politics. and a sunday, ses, professor and novelist roxane gay discusses her memoir. >> you see a woman on the cover of her book standing in her formally fat pants and she is like, i did it. i thought, i cannot write that
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book yet, and i write -- i want to write that book. why don't i tell the story of my body today without apology, just explanation? this is what it is like to be in this body. >> for more on this week's schedule, go to book >> president trump trip to the g 20 seven in poland, where he held a joint news conference in warsaw with the polish president eared he answered questions regarding the possibility of future u.s. military intervention in north korea. this is 25 minutes.


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