James Madison Lecture: Was James Madison Truly Father of the Constitution? — Akhil Reed Amar

[Applause] good afternoon and uh welcome to our audience here and this uh mr larson said on c-span uh to the 2022 james madison lecture a lecture with the provocative title was james madison truly the father of the constitution our lecturer is akil reed amar the sterling professor of law and political science at yale university where he teaches constitutional law both in yale college and yale law school after graduating from yale college summa laude and from yale law school and clerking for then judge now supreme court justice stephen breyer ammar joined the yale faculty in 1985 at the tender age of 26. he is now 37 years later yale's only current professor to have won the university's unofficial triple crown the sterling chair for scholarship the debate medal for teaching and the lamar award for alumni service his work has won awards from both the american bar association and the federalist society and he's been cited by supreme court justices in more than 40 cases as he says in his punchy way tops in his generation as an academic he is patently rare thing a true scholar teacher and not only that a public intellectual of the best sort one who can convey weighty ideas in a compelling and clear way not incidentally a trait ordinarily known uh that lawyers are ordinarily known for here is one pithy example from a recent book chapter titled founding myths commenting on the legacy of charles beard's economic interpretation of the constitution quote beard is bunk most and you can follow his similarly pithy twitter remarks at akil reed ammar listen to his weekly podcast america's constitution or even uh gain access to his public lectures and free courses at akilamar.com but his latest and most ambitious book is the words that made us america's constitutional conversations 1760-1840 the most recent and a long series of volumes whose topical fulcrum is american constitutionalism listen to some of their titles and some of you i know have read these books because it came up but during lunch conversation the constitution today the law of the land a grand tour of our constitutional republic america's unwritten constitution america's constitution a biography the bill of rights creation and reconstruction the constitution and criminal procedure first principles throughout the stream of books and articles and lectures and interviews and podcasts and yes even tweets he's been laboring to give americans what he insists we need and might i add what our students above all need in his words quote facts and analysis not reflexive right wing boosterism or knee-jerk leftist hooting so we are all in for a provocative lecture on the patrimony of the u.s constitution and please join me in extending a warm madison foundation welcome to professor akil reed ammar [Applause] suggesting that we turn this on there we go it's such an honor to be with a group of fellow teachers and i thank you for your service that's something that we conventionally and i hope sincerely say when we meet those who have put their bodies in harm's way for the rest of us in our military but american service also involves centrally teaching the story of america to the next generation and you are all servants in that way and i'm very grateful to you and our country to be very grateful to you because candidly um it's not the most remunerative of professions it's absolutely necessary and and if we don't do we fellow teachers the work that we do i think in the end america is lost because the only thing that we have in common really as americans is our national narrative our story our history and so we have to get it right because here's what we don't have in common we don't have race in common americans come from many different uh races and ethnicities our great grandparents come from all parts of the world and they came at different times to modern day america some came in chains some came with bull whips some came yesterday so we don't have race or ethnicity we we disagree politically and we have religious diversity of an extraordinary sort um so what is it that we have in common we we have our constitution our history our narratives uh and i'm gonna tell you a little bit about that today um and and you'll decide for yourself whether you agree or disagree with um my revised narrative but but i just want to begin by thanking you for your service because you in turn are teaching the next generation and if they don't learn this stuff then they have nothing in common and then america pull up flies apart maybe the project dies not to be too dramatic but but i think that's actually a real possibility unless we do what we do so thank you um this is the james madison lecture officially but um it's a little bit awkward because some of you by the time you hear what i have to say might think that this is the anti-james madison lecture and the question is um was james madison truly the father of the constitution i bring a tie um it has a kind of generic it has a founding father on it and it's not quite clear if you look at it is that madison is that hamilton is that jefferson is that washington is not quite ben franklin not quite john adams but but who is it and i'm not sure um but um most of you have been taught what i was taught was that well of course it's the james madison is the father of the constitution and i'm going to call that into question today another way of putting the point is to remind you that kind of by tradition by acclamation there are six particularly extraordinary founding fathers the first four presidents washington adams jefferson madison plus hamilton and franklin um and the book that i've just recently finished and i see some of you have it and thank you so much for that the words that made us america's constitutional conversation 1760-1840 does feature those founding fathers and the larger cast of americans who produced those founding fathers and backed them in key ways and that influenced them and that were influenced by them so it's a top-down story in certain ways but also a bottom-up story in other ways but we americans do we like rankings you know who's up and who's down and you know you know who's number one um whether it's in hockey or basketball or football or um even academic programs or ranks so so we rank found so who really is the father of the constitution and conventionally um we are told as james madison and as i said in this anti-james madison james madison lecture i want to basically offer a different point of view so i'm going to read you some passages from not from the book but from an essay that that i composed for a slightly different purpose but i think um will be just perfect for our conversation today and it's an essay on founding myths and it's from a a forthcoming book called myth america it's kind of a pun on miss america that is in which i have one chapter and there are many other chapters written by eminent historians of other periods those who misunderstand the founding are apt to misread the constitution alas americans from all educational strata and all points on the political compass routinely misinterpret this critical era and in the process muddy the letter and spirit of our supreme law of the land here are five especially widespread and interrelated misunderstandings each followed by a brief statement of the myth-busting truth of the matter myth one james madison was the father of the constitution and i say so here's the thesis no that would be george washington and paternity matters so he's not just the father of the country he's the father constitution and the two are connected you see myth two the key federalist essay is madison's featherless number ten okay yeah that's what you were taught no almost no one read that madison essay in the 1780s or indeed in the ensuing century the key fabulous essays in the ratification era were john jays and alexander hamilton's numbers two to eight explain the washingtonian and geostrategic essence of the federalist plan myth 3 the framers believed in republics but disdain democracy no despite certain language that appeared in madison's federalist number 10 these two words were more synonymous than oppositional in general 1780s discourse regardless of the label we now choose to use the framers believed in and practiced popular self-government myth four the constitution was indeterminate on and perhaps even supportive of secession ridiculous washington's geostrategic constitution categorically repudiated unilateral state secession so this is very much a lincoln point as well as a washington hamilton point and a madison point as well myth five the constitution was designed by the rich for the rich not really the document was just what it said it was a text ordained by the people not the property or as you've already heard said beard is bunk let's begin by popping a trio of interrelated bubbles about james madison the federalist 10 and the linguistic innovation that madison introduced in that now famous ratification essay which sharply contradistinguished republics from democracies many today view madison as the father of the constitution but when the grand philadelphia convention met in the summer of 1787 to propose a solution to the myriad and interlocking failures of america's first continental legal system the sagging articles of confederation few americans had even heard of the diminutive confederation congressmen so i'm a really short guy and they think about stuff like that and we short people you know we get no respect okay by contrast everyone knew of george washington the legendary commander-in-chief who had won the revolutionary war and then disbanded his army rather than trying to make himself king as had william the conqueror or lord protector has said oliver cromwell or emperor has had augustus caesar and as would napoleon and by the way in case you missed the point washington is tall washington's thrilling act of republican renunciation and self-restraint has inspired contemporaries high and low the world over um in fact there's this famous um story in which actually george the third says well what's washington going to do with his army and someone says he's going to disband it and george iii says if he does that he will be the greatest man in the world and he did do that and he was the greatest man in the world the philadelphia convention had broad popular credibility in america mainly because washington bowing to public opinion reluctantly agreed to suspend his retirement to attend the grand gathering so the convention is significant because washington's there not because madison's there the convention that ensued was washington's convention not madison's likewise the proposed constitution that emerged was emphatically washington's at the conclave's outset the delegates unanimously made washington their presiding officer his title at philadelphia mr president the presiding officer you see his title in philadelphia mr president would poetically become his title under the constitution itself most of the delegates had borne arms in the war a third were veterans of washington's continental army and five of the 55 delegates one from each of five distinct states out of the 12 that met in philadelphia rhode island boycott of the event had personally served as washington's aids to camp these former aides were obviously washington's men not madisons new york's alexander hamilton pennsylvania's thomas mifflin maryland's james mchenry virginia's edmond randolph and south carolina's charles coadsworth pinkney so maybe just to put it in modern terminology since we meet on the day after stephen breyer steps down from the supreme court to be replaced by one of his former law clerics katanji brown jackson um and you heard that way back when i clicked for then judge breyer back in boston washington is surrounded by his law clerks basically you know um his military clerks and there are only 12 states there and he's got a man in each of five separate state delegations okay so he's going to get what he wants and he does compared to um okay the document that emerged from this conclave was also obviously washington's the philadelphia constitution's primary goal was geostrategic the fledging american regime needed to create a strong and indivisible union able to defend itself against europe's great powers england france spain i might even add russia which is on the western edge of the of the continent and since we're thinking these days about about putin okay um that that the goal was to um to uh create an indivisible union able to defend itself against these great european powers each of which still coveted new world land and thus posed a potentially existential threat we forget that because america is so strong today but back then it was much more vulnerable long before he even knew madison washington had emphasized the need for such an indivisible union most dramatically in his initial farewell address a world famous circular letter to america's governors in 1783 where he disbands the army and becomes the most famous man in the world because he just goes back to his his farm and and and surrenders his his sword when he could have made himself kings our emperor um uh what have you uh lord protector compared to revolution era state constitutions which provided the basic template for the philadelphia plan's bicameral and tripartite federal system the most distinctive element of the proposed new federal constitution was its astonishingly powerful chief executive so here's what i just told you it's not actually the great man in philadelphia it's what they're actually doing is distilling the template that has already emerged up and down the continent in the state constitution they're basically just coming up with best state practices on issue after issue and that's going to be the federal constitution barring from the existing state constitutions that are already out there so um but the the most different element the thing that makes the federal constitution really different than the state constitutions which are written constitutions bicameral except in a couple places pennsylvania georgia tripartite legislature executive judiciary that's in the state constitutions that's the federal so the big difference the only really big difference is this astonishingly powerful chief executive infinitely more powerful than any state governor okay america's newly minted president could win election independently of congress whereas in the states eight of the 13 um pick their chief executive you see by um the legislature parliament style boris johnson style okay he could win in the election independently of congress and they have to win infinite and independent re-election so no term limps a bunch of states have term limits would enjoy a long by 1787 gubernatorial standards term of office four years no one has four years among the governors would wield a remarkably powerful pair of veto and pardon pins only in massachusetts does the governor have a pardon pen and he serves for one year at a time you see so this is you know veto and they don't have powerful pardon pens and oh we're just seeing how pardons can be important or not um right now okay veto pen pardon pen um and no governor has this powerful combination would command a continental army a navy and will also stand atop all other executive departments that would eventually emerge he gets to pick his underlings unlike um councils who are sometimes foisted on governors in the various states they don't get to pick their their their their cabinets their councils the philadelphia delegates undeniably designed this office for the trusted washington we would ultimately win unanimous election and re-election as america's first president so just think about that every single elector votes for george washington and then votes again for george washington it's like how could you ever have thought how could i ever have thought it was james madison i mean i mean and i'm not done yet but just you know add those facts up together madison by contrast would fail to win the u.s senate seat he coveted and would struggle even to secure a house seat okay prior to philadelphia madison had given no real thought to how federal executive power should be structured as he candidly admitted in a mid april 1787 letter to washington and here's a pro tip to all of you teachers out there you can see these letters for yourself they're free and online and then that and to our c-span audience and then that your tax our tax dollars at work in the national archives founders online project it's word searchable you can find every letter ever written to or from the six major founding fathers and there's other stuff too but anything ever lit written to or from or between washington adams jefferson madison franklin um hamilton it's all their free and to you to find if you assign to your students it's word searchable amazing and you'll find a mid so if i just tell you even without giving the footnote a mid april 1787 letter it's from madison to washington you can find it there may be only two that madison sent and madison confesses like i don't know a clue about executive power i haven't really thought about it very much and washington is thinking himself i thought about it um a time a time or two and that's the news in the constitution the really powerful presidency which you see could end the republic that's why we have to be really careful when we pick presidents that's what makes the u.s constitution different than the state constitutional counterparts and that's all washington and no madison true in the run-up to philadelphia madison had pondered certain other features of his hope for constitution he favored a bicameral federal legislature flanked by an independent executive and independent judiciary but this was old hat in 1787 most revolutionary state constitutions followed some version of this basic template a template endorsed by both new york's john jay and massachusetts henry knox in early 1787 letters that reached washington well before madison sent the general his own preferred plan again you can see all this in the national archives online collection note that all three men were advising washington not vice versa you know well before philadelphia everyone understood that washington was in modern parlance to man [Music] another defining element of the eventual constitution its ratification by the american people was foreshadowed by washington himself no later than mid-1783 when he barely knew madison because that's not the big thing really strong presidency putting it to a vote these are washington ideas although madison did bring some original ideas to the philadelphia conclave most of his pet projects fell by the wayside and as a short little academic i can so relate you know i have all these ideas and people say well thank you for thank you for your your thoughts madison argued relentlessly for a senate that like the house would be a portion by population he lost he argued tirelessly for a congressional negative that is a veto over state law he lost again he wanted leading judges to join the president and wheeling the veto power as new york had it here too he lost he pleaded for broad federal power to tax exports yet again he lost are you getting the picture you know prior to the ratification process his biggest achievement was in a word washingtonian along with others he had played a key role in cajoling washington to suspend retirement and attend the philadelphia conclave so that's his biggest contribution is getting washington to show up when the convention adjourned and his plan became public an epic challenge loomed ahead americans up and down the continent would need to ratify the plan in specially elected conventions chosen by uniquely inclusive electorates when the what the framers envisioned in late 1787 and what in fact unfolded over the ensuing year contra beard you see was nothing less than the most democratic deed that had ever occurred up to that point in the planet's history up and down a whole freaking continent voting on the thing and talking about it my gosh never before had so many persons over so large a land mass been invited to ascent so explicitly to the basic ground rules that would govern themselves and their posterity once done this explosive deed would change the world and a big bang that would radiate out both across the centuries in american history and oceans geographically leading to many later and even more democratic american amendments and eventually giving rise to today's world in which democracies govern most of the planet's inhabitants our modern world was which is a democratic world was made in america because before this it wasn't a democratic world okay and it's putting it to a vote and washington is thinking about this as early as 1783 when he's barely heard of madison in the year that changed everything this hinge of human history it was washington's world famous name that loomed the largest and carried the philadelphia plan to victory the fact that washington endorsed the plan and the expectation that he would lead the new government counted for more than all the other speeches and writings of all the other backers of the plan put together in a brief letter to the confederation congress summarizing the proposed plan on behalf of the convention a letter reprinted alongside the envisioned constitution in tens of thousands of copulate copies circulated among the citizenry washington explained the main lines and aims of the new system so that's what everyone reads not the federalist papers and definitely not federalist 10 which i'll come back to okay this key letter so it accompanies the written constitution everywhere and it's printed in all the newspapers up and down the continent this key letter made clear that the proposed constitution if ratified would end state sovereignty and unite america into a strong union necessary to solve the basic problems of continental government to threaten the very survival of independent america this is a quote the friends of our country wrote washington have long seen and desired that the power of making war peace and treaties that of levying money and regulating commerce and the corresponding executive and judicial authorities should be fully and effectually vested in the general government of the union unquote but he noted it would obviously be improper to quote delegate such extensive trust to one body of men unquote that is a unicameral congress combining legislative executive and judicial power like we had in the articles confederation hence results he wrote the necessity of a different organization namely a new model bicameral and tripart system at the federal level akin to the governments of each individual state out of washington's letter quote it is obviously impracticable in the federal government of these states that is the national national regime to secure all rights of independent sovereignty to each state and yet provide for the interest and safety of all unquote in other words individual state sovereignty the bedrock principle the declaration of independence and articles confederation now needed to yield in all our this is back to washington in all our deliberations on this subject we kept steadily in our view that which appears to us the greatest interest of every true american the consolidation of our union in which is involved our prosperity felicity safety perhaps our national existence unite or die is what he's saying building on franklin for years washington had been preaching precursors of this sermon to anyone who would listen this was also the basic message of a series of newspaper essays that first appeared in new york under the pen name publius eventually numbering 85 essays and repackaged into a two-volume book published in the spring of 1788 the federalist was the brainchild of alexander hamilton who enlisted john jay and james madison to join him in this joint pseudonym seven of the first eight essays the federalist numbers two through eight authored by hamilton and jay explain in vivid detail the key geostrategic argument for a newly minted and indivisible union along the lines that washington and hamilton in particular had been advocating for many years as jay writing as publius explained in the federalist number five this union was expressly modeled on the indissoluble geostrategic quote entire and perfect unquote uni entire perfect union excuse me unquote of scotland and england four score years earlier britain was free and strong hamilton publius argued in the claim active federalist number eight because it was a defensible island protected by the english channel okay by uniting indecibly americans could likewise be free and strong protected by the atlantic ocean land borders between continental european nation states that led to standing armies military dictators and horrific bloodshed on the continent itself you know the french whomping on the germans and their whomping back and so on international land borders between 13 sovereign american states or between several regional confederacies or nation states would ultimately lead to the same fate in the new world the states thus needed to merge into one indivisible and continental nation state as scotland and england emerged in 1707 to form the mighty british nation so in a nutshell why is britain strong and free because it's an island scotland and england have united because before they've done that you know um the scots are wamping on the brit on the english and the english are wamping back and mel gibson is coming down and and mary queen of scots is getting involved and no one is free in that world okay but unite the place now it only needs a navy navies are less threatening to domestic pretty they can only pound a coastline and americans could just retreat past the coastline we want to create you know um a an island's nation of a certain sort um like britain um it's it's like that scene in when harry met sally um uh when the meg ryan character when sally says i'll have what she's having and so we want to be like the brits okay um uh they've got an english channel we're going to have the atlantic ocean that will protect us this was the main argument that persuaded open-minded fence-sitting americans in 1787-88 it was the argument that a farmer or a tradesman could understand in response to his obvious questions this is what any american would ask like why do we need to go beyond sovereign states and try to create a continental republic the likes of which a continental republic you see the likes of which have never been seen in human history the only republics before they are tiny little city-states like athens um pre-imperial rome given that most of history's successful republics have been small which is a point popularized by by the french right of montesquieu and given that the world until now um that until now our sovereign state new york massachusetts what have you has never been indissolubly linked to any other sovereign state why must we become continental it would be like today proposing world government with like a president of the world and an army of the world and they can tax you directly and regulate you there's only one reason today you'd ever vote for that martians man in black and then you'd say well we've got our issues with the russians and the chinese actually you know can they're not always on our side but you know what the hell they're homo sapiens we're in let's roll let's kick something that's the argument you see it's a new it's it's it's a a continental uh it's it's a new plan for an entire new world separated by vast moats from the rest of it that's what's being proposed and it's scary as hell to ordinary people and and the early federalist papers are saying here's why you have to do that because if you don't you'll die okay because i'm in a word putin you know or george the third or um louie or whomever okay that's why madison publius had his own answer to these questions in the fabulous number 10 the mass virginia's first contribution to the collaborative project this answer was not geostrategic it did not fit with the main outlines of the washington hamilton j solution to the confederation crisis but rather aim to offer a different reason to vote yes on the proposed constitution madison's essay built on the most original ideas that he pitched to philadelphia most of which lost and in college courses today or in high school courses this essay is widely taught for its intriguing claims about democracy demography representation majority rule minority rights property rights factualism and governmental economies of scale arguing that the new federal government would likely protect minority rights better than would individual states because majority tyranny would be harder to pull off in a large and diverse democracy because continental lawmakers would likely be men of greater wisdom and would state legislators this essay foreshadowed much of post-civil war american history it's brilliant it deserves tenure it's a great piece but in 1787-88 almost no one paid attention to madison's masterpiece the early geostrategic federalist essays were widely reprinted the fed was 10 was not unlike the main ideas of the federalist numbers two to eight madsen's concepts in number 10 were not echoed in other newspaper pieces or by authors or by speakers and ratifying conventions number 10 failed to make a deep impression in american coffee houses and taverns where patrons read aloud and discussed both local and out of town newspapers if publius had a great answer to the farmer tradesman's basic question why a truly continental nation state the best place to give that answer in a newspaper would be in the first few essays not the 10th if you had a great answer that question would you wait to your 10th op-ed to make it of course you wouldn't and they didn't they led with their strong argument which is hamiltonian washingtonian geostrategic the only madison essay that was widely reprinted in 1787-88 and oh by the way you can confirm all of this there's this amazing online project it's called the documentary history the ratification the constitution it's online and free 26 volumes and you can do word searches and they will tell you which essays will be printed how frequently where and when so you can confirm all the things i'm telling you now with in just five minutes on a laptop which is amazing the only madison essay that was widely reprinted in 1787-88 the federalist number 14 opened with a nice recapitulation of the geostrategic argument an argument that madison plainly endorsed even though he had some other more original ideas that he had to get off his chest one of these ideas was that popular government based on the concept of representation could operate over a much larger area and population than could systems of direct democracy in which voters met in person to legislate most notably ancient athenian assemblies and new england town meetings aiming to blunt montesquieu's famous claim emphasized at every turn by anti-federal skeptics of the philadelphia plan that truly self-governing societies could work only over small areas madison introduced his now famous but not then distinction between republics and democracies the latter that is democracies relied on direct and daily citizen participation and as to them matt um said madison montesquiou had a point but republics based on smaller representative assemblies could span large distances encompass large populations madison argued and it was a it was a brilliant argument but again you know how many people following it the distinction between small representative assemblies and lar representative assemblies and large citizen participation assemblies was then and remains now a powerful one indeed the point was hardly this point was hardly unique to madison in 1787 but others at the time did not routinely equate republics with representation or democracy with pure populism on the contrary many other americans at the time tended to treat the word republic and democracy as broadly synonymous a democracy could be either direct or indirect perhaps the word democracy was slightly edgier much as it's edgier today to call someone a left winger rather than a liberal but madison's sharp distinction between republics and democracies was his own innovation and it was not widely embraced himself knew this in number 10 he referred to quote a republic by which i mean unquote not a republic by which is generally meant and number 14 he confessed that quote the prevalent understanding confounds a republic with a democracy as other people are equating these two things that i'm you know very carefully trying to imagine carefully trying to distinguish sure enough madison's contemporaries often casually referred to english england's house of commons and state lower houses all of which rely on principle of representation as particularly democratic or democratical elements of their respective constitutions conversely late 18th century republics could indeed make certain use of make use of certain forms of direct political participation as had for example massachusetts and ratifying a state constitution in 1780 and its general trade in its general tradition of town meetings ancient greek governments which had practiced various forms of direct democracy were also commonly described as republics a description that appeared in three of the four federalist essays immediately preceding madison's stipulated definition number 10. and again it's online you can do a word search and confirm all that at the same time that madison was drawing his fine linguistic distinction other leading federalists were obliterating it proclaiming that a republican government could be either directly or indirectly democratic in the philadelphia ratifying convention the brilliant james wilson a philadelphia alumnus widely viewed as america's ableist lawyer explicitly equated a republic with a democracy wilson went on repeatedly and proudly to pronounce the constitution democratic and democratical in a proper republic slash democracy this is what wilson says either one potato potato the people at large retain the supreme power and act either collectively or by representation the constitution met this test wilson declared here's a quote all authority of every kind is derived by representation from the people and this democratic not republican democratic principle is carried into every part of the government so that's pennsylvania now in south carolina charles pinckney says pretty much the same thing a republican government is one in which quote the people at large either collectively or by representation form the legislature unquote echoing wilson future chief justice that's south carolina and now here's virginia i'm just giving you sort of north and south this is john marshall of virginia he repeatedly sang the praises of democracy in the virginia ratifying convention hear quotes from him quote supporters of the constitution are firm friends of the liberty and the rights of mankind we sir idolize democracy we admire the proposed constitution because we think it is a well-regulated democracy we contend for a well-regulated democracy so that's not actually this sharp distinction between republics and democracy that you've all been teaching your students when the word democracy appeared in the founding era it was often associated with rather than defined against republicanism even by madison himself um what he calls in the federalist paper is the republican remedy for the republican disease actually in his philadelphia convention notes he calls the democratic remedy for the democratic disease in the 1790s when various pro-madison pro-jefferson groups sprang up they called themselves republican societies or democratic societies or democratic republican societies potato potato whatever they're the same basic idea the political party that madison thomas jefferson created in this decade was variously described as the republican party and the democratic republican party thus today's democratic party claims the republican jefferson as one of his founders okay so you've been taught that democracy is a dirty word if it's a dirty word why is the most powerful and um and uh successful political party in antebellum america that's you know jackson's party call themselves the democrats see if so be like today oh we're going to find a new antarctic and we're going to call ourselves we're going to call ourselves the nazis oh because that's a great trademark you know no it actually isn't and that's this is why i'm a democrat but i actually do not call myself a socialist you know i think that's a big mistake for us democrats i don't even like progressive truthfully what's wrong with good old-fashioned liberal so but democracy is not a dirty word they're not running away from it at all with the foregoing myth busting account in mind we can now quickly pop a pair of related myths about secession and plutocracy on secession recall that the key federalist essays the ones that were widely reprinted and loudly echoed in the several state ratifying debate ratification debates were the essays that preceded and immediately followed number 10 not number 10 itself which veered off in a tangent the main federalist argument in these influential essays was a washingtonian washingtonian he's the man geostrategic argument that emphatically repudiated the idea that any individual state post-ratification could unilaterally leave the union the federalist number five thus made clear that a model for usa 2.0 was the indissoluble union of england and scotland now just to anticipate a question some of you might have there's talk today of scottish secession but it's basic british law that secession can't be unilateral britain as a whole would have to agree to any um scottish exit sketch it or whatever you want to call it post 1707 britain was free and strong argued published in the early federalist estates precisely because britain's had eliminated internal land borders and internal armies america needed to follow the same model for the same reason explain the federalist number eight thus the federalist number 11 expressly described the new plan as one for a strict and indissoluble union were unilateral state section legally permissible any state at any future date could ally with any foreign european monarchy of its own choosing and thereby threaten its land boarding neighbors with an army buttressed by european monarchs murderers and mercenaries any such alliance would obviously imperil the entire washington tone washingtonian project which envisioned a largely demilitarized america which americans would never need a large army to guard say maryland and points north from virginia or virginia from the carolinas so i wrote this a while back but just imagine today if south carolina or any other state could leave the union make an alliance with putin and now we have russian soldiers in the carolinas which is not what you want them you know you want them halfway across the world as far away from us as possible and that's the washingtonian idea that's the early federalist papers that's why we formed the constitution it's not madison's federalist tent which is great i give him tenure he's a great little academic you know but but that's not you know and yes i feel this personally um but um but and that's that's not actually what the key idea was the text of the constitution and this ratification history were utterly clear on this point article six proclaimed the constitution the supreme law of the land regardless of what any state in the future might say or do unilaterally no ifs ands or buts you're in the classroom with kids you know some of you are most of your parents i'm a parent you know sometimes i look at my kids they're all in college now and i'd say what part of no did you not understand you know like what part of the supremacy clause south clan do you not understand it's the supreme law of the land period full stop anyone who took up arms against america even if backed by his home state or i would add his president would be committing treason said article 3. and you know why i said that thing because of january 6. the constitution pointedly dropped the emphatic language of the article's confederation which proclaimed that each state was sovereign that's what the article is confederation about been there done that we're repudiating that an enormously consequential omission duly noted by all the leading anti-federalists you know so if i say to you i love you and you don't say i love you back oh you know that i'm gonna notice that you know it says states are solving the articles it doesn't say that in the constitution oh people are going to people are going to kind of node to something like that don't you think okay in the same spirit um article 5 dropped the confederation's rules that future amendments would require state unanimity such a rule made sense for a pure league of sovereign states the confederation but made no sense for a newly modeled washingtonian system in which states would no longer be sovereign as they once had been the new plan was exactly what it said it was not a league not a confederation not a treaty of sovereign states but a true and indivisible constitution obviously modeled on contemporaneous state constitutions and in turn those state constitutions were universally understood to as internally indivisible no one thought in 1787 that boston could unilaterally succeed from massachusetts or that charleston could unilaterally exit from south carolina and now we're going to do continentally done before state by state by state in the ratification process antifa and these are all washington themes the anti-federalists everywhere highlighted the proposed constitutions indivisibly indivisibility and urged americans to think twice and then thrice more before agreeing to such an audacious and unilaterally irreversible plan in response leading federalists across the continent in both speech and print expressly avowed indivisibility and routinely highlighted the analogy to the indivisible union of scotland in england some four score years earlier here's the key aha fact never in the entire year of ratification did any leading federalists suggest that a state could unilaterally leave the new union even though such an assurance would doubtless have made it much easier for states rights men to say yes you know if there's a money-back guarantee why wouldn't you say so prominently in the document and in the conversation and you can check me on this it's all word searchable 26 big fat volumes of actually conversation the documentary history project you won't find any federalist saying this not one in the new york ratifying convention compromise um minded anti-fabulous offered to vote yes so long as the state could reserve a right to withdraw from the union over the next few years if no federal bill of rights materialized so they're proposing compromise we'll say yes but if there's no bill of rights then we want to be able to leave okay um federalists flatly rejected this proffered compromise um at the risk of losing the entire state federalists insisted the state convention must ratify cleanly with no attempted reservation of secession right hamilton read aloud a letter from madison on this key point quote and this is madison's words but they're read aloud at the new york gratifying convention the constitution requires an adoption in total and forever it has been so adopted by all the other states including madison virginia hamilton and jay went on to elaborate the key point in their own words the constitution required the constitution's required oath to the document itself as the supreme law of land quote stands in the way unquote of any purport succession right a reserve this is another quote a reservation of a right to withdraw was inconsistent with the constitution and with no ratification it won't count as disease yes or no in or out deal or no deal as hamilton jay and madison made these points unequivocally clear all america was watching breathlessly you know is there going to be a gun legislation in dc or not you know are they coming to be able to come up with with a plan or not okay everyone's watching would federalist in assistance on this bedrock non-negotiable point doom the deal in the end the new york gratifying convention said yes by the narrowest of margins newspapers in virtually every state including notably virginia both carolinas covered the cliffhanger in detail america's americans everywhere in 1787-88 the hinge of human history the year that changed everything understood exactly what they were agreeing to and why how can it be that so many americans today miss the central argument of the key federalist essays and the key federalists much of the blame lies with charles beard who in 1913 wrote the single most influential 20th century book on the constitution beard's ambitious and widely read economic interpretation of the constitution argued in effect that the constitution was an undemocratic quasi-coup focused on voiced on america by a wealthy elite a document by and for the one percenters so to speak modern neo-beardians of various stripes tell a dark founding story that goes something like this so this is the world according to howard zinn and it's completely wrong and i don't care what matt damon thinks you know he he's the guy who's trying to get you to buy you know bitcoin or whatever so you know don't listen to him in good will hunting this is the basic story and this is what our students are being taught this is what my kids were being taught in school and i'm trying to say this is crap kids are saying chill dad okay this is the basic sort of narrative and it's coming from beard and whether you're aware of it or not all your teachers and their teachers this is what influenced them this this book but it's wrong on its facts it's bunk well-heeled delegates this is the counter story that i'm basically saying is a myth well-heeled delegates met in secret and exceeded their limited instructions to modify the article's confederation not scrap them entirely these plotters then pressured slash bamboozled america into accepting a document designed mainly to protect private property and fat cat creditors and to suppress incipient movements for economic justice for debtor relief laws paper money laws and the like movements that were beginning to gain traction in the state governments that were in federalist eyes unduly democratic madison's federalist number 10 was exhibit a for beard and his legions of followers on the berian reading number 10 dissed democracy and stressed property rights and recipient class conflict madison was a kind of marxian and analyst although of course he was on the side of the ruling class contra the emerging proletariat that's you know the the beard intake states in this reading were more threatening to minority rights than the larger wide arranging federal government would be and the all-important representation principle would likely lead to an elite federal congress that would be less vulnerable to mass pressure for economic redistribution than were the more numerous less refined more democratic and demagogic state legislatures now there is a touch of truth in this dark beardian tale but also massive myth-making recall that no one at the time paid much attention to federalist number 10. so what matters if you think 10 is the key or not and you're missing what really is the key the geostrategic argument indeed almost no leading politician or scholar paid much heed to number 10 in the ensuing century and a quarter even as many other federalist essays did feature prominently in america's ongoing constitutional conversation beard almost single-handedly vaulted madison's intriguing essay to the forefront of american constitutional discourse douglas adair approved this 75 years ago documentary history proves that no one's talking about the time you can do a word search and other things were talked about adair comes along and says next 125 years no one's talking about federalist 10 beard makes it front and center and that's why you're all teaching federalist ten you see whether you knew it or not like that's why um but now i'm coming along and saying there's a different narrative that i want you to be aware of and you'll have to decide for yourselves my friends aside from the details of who read which federalist essay when a much larger question looms was the constitution itself as beard and neo-beridian's claim fundamentally anti-democratic okay so this is howard zinn and matt damon and that crowd was it fundamentally anti-democratic um hardly the constitution did not say we the property nor did it do we the property the original document itself mentioned property only once in article four's reference to government property not private property more important the constitution was put to an epic we the people vote with special democratic especially democratic procedures and protocols in eight of the 13 states ordinary property qualifications to vote for convention delegates or to run as a delegate or both were lowered or eliminated so at a the states they're lowering property qualifications to vote on the constitution in no state were property qualifications raised for this special once in a lifetime ratification experience in new york for example all adult free male citizens could vote for convention delegates no race tests no property tests no religious tests no literacy tests these were not the rules for ordinary new york elections rather they were special rules especially democratic rules designed for an especially democratic ratification process we the people indeed that is in deed this is what we actually did beard knew these facts and hid them from his readers that's a very strong statement and i back it up in end notes but he knew it and he hid it from you later beardians either did not know these facts or did not care the facts came to light only in 2005 in another ambitious and widely read academic tone america's constitution a biography and some of you are giggling because you know who read that and in the end and in the footnotes i actually say disclosure i wrote that book but until i wrote that book no one knew these and even my own teachers at places like yale because beard knew them and he hid them and no one else actually like double checked it double check you know you know trust but verify okay i'm come close to the end here true the convention met in secrecy but secrecy lapsed on the conclave's last day secrecy aimed to promote candid initial deliberation not to suppress sordid delegate motivation in the ensuing ratification process many delegates openly discussed details of their earlier deliberations so they're spilling the beans immediately after the document goes public this too is a fact in the obedience either do not know or choose not to mention how many of you knew because i actually didn't really clearly until i researched the most recent book that immediately after the const the philadelphia convention ended um people talked openly about what had happened in the convention how many of you knew that yeah see because because that's not the story oh they met in secret yeah until the dobbs draft becomes public you see not not the leak but the final version and then it's out there for everyone to see you see but it's not just the constitution's out there for everyone to see oh the clerk starts spilling the beans too they eat them immediately which they're not doing you see on the supreme court immediately i said this and then he said that and then i responded and then you know okay immediately after the in um and it hasn't been ratified yet they're free to talk and they do talk oh they talk and talk and talk true the delegates went beyond their strict instructions but diplomats and lawmakers back then did this routinely when exciting negotiation possibilities opened up unexpectedly materialized at the bargaining table washington and company exceeded the letter of their instructions to fulfill the spirit of their instructions which was please fix the broken confederation their proposal became law only after the confederation congress unanimously forwarded their plan to the several states and only after the american people and state convention after state convention after state convention after state convention dot dot dot said yes we do if the document was truly anti-democratic why do people vote for it why did tens of thousands of ordinary working men enthusiastically join massive pro-constitutional rallies in philadelphia and manhattan why did america's electoral college vote unanimously twice to make the constitution's father george washington the renewed union's first president why did voters overwhelmingly vote for federalists in the first set of national elections if beard is right about all these things here's why because contra beard the document was remarkably democratic for its time if we bracket for a moment the slavery issue and i promise i'll return to that at the end but that was an issue that beard interestingly all but ignored unlike so i'll talk about 1619 in just a bit unlike the articles and federation the constitution featured a new institution the house of representatives elected directly by the people the 1787 plan rejected property qualifications for house service senate service and the presidency no contemporaneous state did anything truly nothing so you're going to get to vote for congress and there are no property qualifications well that's better than the articles confederation and better than the state constitution wow the philadelphia plan also provided for a regular census and regular reapportionment unlike most states the new document additionally promised that federal lawmakers would draw salaries so that even middling men not merely the idol rich could serve like a school teacher could run and serve because you need to have independent wealth they'll pay you to be in congress most states did nothing like this in sharp contrast to the rules in most states the constitution promised to open government service to persons of every creed even agnostics and atheists also the philadelphia constitution's age rules aim to blunt dynastic power by prohibiting the early election of famous famous favorite sons while giving low-born man a chance to rise and show their stuff this too was more democratic than most day constitutions why do you have to be 35 to be president well who could be present at age 33 who would have the name recognition you know at age 33 you know a wealthy famous playboy can you spell trump okay um so so age 35 was you're supposed to actually have a trout or or quincy or you know q i'm you're supposed to have a track wreck at snw a track record of your own you see and you're going to be eligible if you're john q or george w but only when you have a track record of your own rather mere the first and last name of your daddy okay and who's the prime minister when they're coming up with all these rules his name is william pitt as in william pitt the younger and he has the same first and last name as his daddy and he might be good he might be bad but he's getting because of his daddy's name and he's a member of parliament 21 mp and prime minister pm at 24. they're saying no you've got a different model where actually you gotta you know do something in your own right remarkably demographic affirmative action for low-born people if the constitution was fundamentally democratic for its time and here i end does this mean it was also fundamentally anti-slavery so it is democratic but it is anti-slavery and geostrategic is anti-slavery no democracy for a given people citizenry and enslavement of other people's nationalities could conceptually co-exist and indeed did famously coexist for centuries in the most notable ancient democracies republics such as paraclean athens or the roman republic in fact america's pro-democracy constitution of 1787 was sadly also pro-slavery in its basic structure and its and its foreseeable effects even though not everyone at the time especially in the north forest saw the foreseeable during the drafting ratification process the three-fifths clause gave slave states a massive advantage in the house and electoral college an advantage that would in turn ultimately warp the antebellum presidency the federal judiciary whose members were nominated by presence picked by the electoral college picked by three fifths you know state legislative apportionment senate sex selection western expansion policy and much more this one little number warps everything i will make you a deal if you and i are writing a constitutional right to let you write every word if you let me write every number three-fifths turns out to be huge the pro-democracy and pro-slavery constitution that emerged under the republican plantation owner george washington was thus in a word proto-jacksonian in various ways andrew jackson called to mind george washington himself both men were deep believers in american self-government though jackson was not merely democratic but often demagogic both men famously bested the british on the battlefield jackson even more decisively than washington in the battle of new orleans and both men were also alas southern slaveholders washington was increasingly embarrassed by this fact and in his last act free to slaves jackson was not and did not on reflection we should not be surprised that jackson a strong pro-democracy and pro-slavery president who also embodied fierce anti-seize anti-secessionism and a muscular attitude toward european monarchs would ultimately become the dominant political figure in antebellum america after all jackson personified some of the constitution's most striking structural elements its populism its military resilience and also alas its special accommodation of slaveocracy in sun america's constitution was far more democratic and geostrategic than we have been taught by 20th century neo-beridian and neo-madisonian myth makers the document's deep power structure was also sadly more skewed towards slavery than many mainstream scholars have been willing to admit america's constitution was not truly madisonian it was washingtonian and proto-jacksonian thank you very much [Applause] [Applause] so now i think we have some time for a conversation is that right how do we do this jeff yeah plenty of time for questions and uh for the c-span audience and while you all are coming up to the mic i'll tell you one thing see i i'm honest with my friends i'm maybe too blunt with my friends and this is a madison program so since i ended on slavery you see this is the story of madison that you aren't taught because the madison biographers are covering up for him in the main and i'm disappointed by that at the beginning of their lives jefferson and madison are offering up a vision of in the west jefferson is the author of an early version of the northwest ordinance that's going to prohibit slavery in the west and who pushes that and is adopted in an incarnation in the summer of 1787 by the confederation congress meeting in new york at the very same moment that the delegates are meeting behind closed doors in philadelphia and one of the first 10 statutes passed by the new congress signed by george washington is a statute codifying the northwesterns ending slavery in the west and madison helps push it through first congress as washington's kind of prime minister in congress and washington signs it so really good jefferson and mass are trying to end slavery in the west and there's a part of your brain that knows that story you guys are very smart there's a part of your brain that knows that in 1819 1820 there's a missouri compromise which proposes to prohibit slavery north and west of a certain line it's in effect extending the northwest ordinance to the lands of the louisiana purchase further west okay well where's jefferson on that he's not in favor of that he's now in favor of diffusions you know spreading the virus you know to to the west because that's a brilliant idea jefferson you know and madison goes so far as to say not only that he doesn't really like the prohibition of slavery north of a certain line he writes to munroe that's unconstitutional which is absurd not even john t calhoun takes that position it's going to be the position of roger tawney and dred scott the congress can't believe he was leaving the territories it's going to lead to a civil war and madison you see turns on a dime on this he changes they start out anti-slavery they become pro-slavery and that's not the story that's typically told that people get come up here and give the james madison lecture you see um and so why does he do that he does that because in between he's created a political party federal's tennis anti-party he's going to be the founder of the modern party he's karl rove and later incarnate that's who he is no he is he's mark hannah he's okay he needs to create a party because john adams has made it a crime to criticize john adams because presents can be thin-skinned that way not i'm not talking to anyone in particular today of course so john adams ridiculously makes it a crime to criticize john adams and jefferson and madison create a party to stop that and they need to and good for them but then that party is a southern party it has a southern base the base needs to be fed and it's pro-slavery base and they go with the party against principle you see when it comes to extending the admirable ideas of their youth anti-slavery to prohibit slavery in um louisiana territory madison saying it's unconstitutional to do the very thing that he pushed you know in the first congress that story isn't told there's a part of your brain that maybe knows that about jefferson and and madison in 18 19 18 20 and there's a part of your brain that you know knows about the northwest territory but those two parts haven't talked to each other there's a part of your brain that knows that fed was 10 is anti-party but there's another part of your brain that knows that madison and jefferson are creating a little party but they haven't talked to each other if james madison were alive today the closer analogy today would not be liz cheney who is choosing principal above party and whose mother wrote an epically good very interesting biography of james madison and her mother lynn cheney so if madison were alive today he would not be like liz cheney picking principal over party who would be more like kevin mccarthy picking party over principal and there are reasons to do that i understand that i'm a political scientist if you think the other party is bad you got to keep your party intact and you're just going to stick with them no matter what okay but that's not the story that you've been told i don't know but i'm not sure any james madison lecturer before me has told you that story but i do think that's the true story and then say that here you know at james madison event because you're my friends and i'm going to be straight with you two things real quick i never heard the word geostrategic in my life until i read your book and i'm still not sure i understand the word so if you could clarify that but my big question is if washington was so um determined and he's going to be the father why did he need to be cajoled to go to the convention wouldn't he have felt personally compelled to go there if it was so important to him brilliant questions first the word geo strategy it's the same root word as geography or geology it's a basic thought that it's about kind of land and defensibility and the globe so yeah it's about grand strategy or world strategy with a particular emphasis on geographic elements in particular it's easier to defend a coastline than it is to defend a land order okay so um uh they look around the world because they want to be democratic and almost no place in the world has been democratic and so they look under say who's democratic well the um the brits to some extent they've got elections they've got a house of lords no one voted for they got a king to own voted for but they do have juries and elections of some sort so they're the brits and the swiss and almost no one else the dutch are in the process of losing their republic why in a phrase because of defensible borders okay because britain is an island and it's hard to actually attack it and the swiss have the alps i mean it's hard to charge up the hill they don't know it because 1943 hasn't happened yet you know in their writing but in 1943 you look at a map of europe and who's free in all of europe will it be britain and the von trout family in switzerland and that's about it same reason or doesn't want to actually have to launch an amphibious invasion and it's hard to charge up a hill um and so um geo strategy captures the idea that they're in they're thinking about the world france britain um russia spain and they're thinking about um geographic elements like what's defensible and what's not land borders aren't so defensible putin it's all about he's trying to actually push across the coastline because he wants to get a land bridge to crimea um um and and and even today it's it's about um navies and armies the army has to be on the constitution reauthorized every two years but not that's not true for a navy they are distinguishing between land and naval forces that's the geo of a geo strategy okay and the strategy is to think about things in the global uh context and they are why is america free you know because i was taught oh it's separation of powers but you know britain's pretty free and it never had a separation of power system and um and regimes that did have separate and and juan lintz actually think separation of powers as a great political scientist have been very bad for latin america you think votes because people believe in liberty well people believe in liberty and all sorts of places that don't have it ukrainians believe in liberty and they're not entirely free right now so here's why america is free because for the first 150 years at least white americans of course for the first 150 years there's no standing army in peacetime of any significance in america and so you don't need to worry about an army basically squashing you that's why americans are free meanwhile you know the the french are fighting the germans you know four times in napoleonic wars the um uh um uh the the the the um awards in the 1870s world war one world war ii the franco-prussian war of 1870s world war one world war ii um and um so americans are free because we've got this huge moat we've created this indivisible island nation on the model of of england and scotland and that's why we're free and why am i telling you this today because now we have the largest military industrial and cultural complex in the world and you should be worried about that because actually that's not actually the world for the first 150 years you know so imagine just hypothetically you know a crazy president with nuclear power you know or with this massive we will never have a crazy presence of course you see and the president is so damn powerful it's not because of madison it's washington and you have to pay attention to that so that's all geo strategy and how it's connected now if washington cares about all this stuff brilliant question why does he need to be cajoled you know why wouldn't he just run to philadelphia because he has given his word he's promised to withdraw from public life and all the world is a god they're all at his feet just like he's the reincarnation of cincinnatus and he doesn't want to go back on his promise because and it could all fail you know why not retire you know while you're ahead um so he doesn't he he gets sucked back in because people say you say that you actually want to save the project now we're going to adopt maybe a plan on long lines of your proposals so you got to be there and he kind of reluctantly says yeah you're right but he keeps wanting to come back um so he's hoping to retire after the first term that's why it worked because america hasn't come together yet and i tell that story about how he's only able to retire after the second but he does he doesn't die in office and that's really important he's trying to set an idea that you should actually um withdraw um and his initial inclination was just you know yes he promised to resign and in fact what he said is it's not just that i promised officially the congress to resign he says it's in all the newspapers what are people going to say if i now jump back in so that's why he needs to be persuaded you're going to say what are they going to say if you don't because your country needs you again you uniquely okay thank you i like many of us we probably have a poster in my classroom that says james madison father of the constitution and the bill of rights since you destroyed the first myth i might have to take it down but is he the father of the bill of rights would that be something more appropriate for us not totally and i did write a book called the bill of rights creation reconstruction and i didn't understand the full answer when i wrote that book and i now do a little bit more so um first uh these guys are you know they are impressive but they forget to add a bill of rights at philadelphia um and i told you that the constitution needs to be ratified and i told you that the templates are state constitutions the first thing ordinary farmers say tradesmen when they read the things dudes where are the rights because there's a bill of rights in the virginia constitution of 1776 and the massachusetts constitution um 1780 and the pennsylvania constitution of 1776 and so on and george mason at philadelphia toward the end says hey we should have a bill of rights and i can help draft it and in the end they say thanks george mason but you know no thanks and um and he's one of the three people who votes now so so this was a big mistake these gene it's almost doom's ratification it's one of the two biggest objections constitution congress is too small and there's no bill of rights so how did these geniuses miss it now if you're a small d democrat as am i this is about we the people about ratification about the wisdom of crowds that on some things a whole bunch of people none of whom is a genius may actually outperform albert einstein or ben franklin a small group of people can make a mistake there's wisdom in the people maybe not the first time around you know and if we keep voting for trump it's on us okay but um um so um but in the end the idea is democracies may make mistakes but they'll correct them and there's wisdom in the people it's called the um uh um uh famously the uh condorcet's um jury theorem the war people if you want to figure out how many jelly beans are in a jar or how um how big a a heifer weighs the county fair you could ask the smartest scientist you know she or he will give you a pretty good answer or you could pull everyone at the fair or ideally everyone in the county take the middle guest you'll be very close to being right and the more people you pull the closer and that's called the condorcet jury theme is called the wisdom of crowds so ordinary people you know say dudes you forgot the bill of rights and so why first and i've never written this in print quite in this way but um they basically omitted it because they were tired and they wanted to go home and george mason says it's going to be quick but he's a pain in the ass um i don't like to say that on c stand he's a i just did he's a pain in the butt um and it's going to be two more weeks and you can see the wheels spinning because you know what i tell my students is you know um they're hot and homesick you know um i think that's the pg version you could say the hot horny and homesick they want to go back to their beds they're they're um uh uh estates um they wanna see their kids they wanna you know pet their dogs um i don't you know i'm away for a day and i'm already thinking oh i'm looking forward to getting back home um i don't wanna stay in washington dc any longer than i have to so just say so so that's why they make a mistake and madison doesn't pivot early on this he had a chance to support so why does he pivot and who pivots first george washington actually pivots first um and george washington in the his inaugural address says we should probably have you know you i want you to think why does he do that because half the people are for the constitution and almost half are against it and you want to bring everyone on board okay here's what's amazing about the founding they put it to a vote an epic vote they talked about it for a year up down the count and no one dies politically in that year and the losers lose by this much but they accept the verdict okay um wow and no one dies politically in that year and the loser except and then the winners though think um maybe we should actually compromise with these folks because they've actually got some good ideas we could learn so much from that today don't you see so washington wants to bring the losers on board it's very dangerous to have the people basically rooting against the regime and in particular who doesn't want to bring on board north carolina hasn't said yes rhode island hasn't said yes when he takes office as president united states there's only 11 states in the union and those are antivisible borders and and in theory rhode island and north carolina are independent nations and they could make a treaty you know as it were with putin and then you're going to have actually european um mercenaries hessians on american soil so you've got to get them on board and washington understands all of that totally and in part for geostrategic reasons madison actually says some of this in the first congress but washington says it first so madison gets it through but washington actually pivots i would say earlier than madison because remember they in effect opposed to bill of rights in philadelphia mason was the guy you know who was proposing it and and they said thanks but no thanks and it takes madison like a year to make a pivot he's getting all these letters from jefferson haranguing him and he first kind of ignores them and jefferson's persistent um so um madison is important in the bill of rights and he shapes it and he's looking at what um uh are the best provisions in in various states and all the rest so he is and he's co-parent of it but washington it plays a much bigger role than is conventionally understood in the bill of rights and does so for geostrategic reasons in part to bring north carolina and rhode island back on board first of all i want to thank you for being here and for speaking so eloquently to us today um thank you you talked a lot about uh the washingtonian element especially of the design of the executive branch and what i'm kind of curious about is looking at uh the you know the the last several decades especially perhaps the last uh four years um the hearings in january 6. do you think that perhaps the office itself uh given its its its washingtonian nature at the beginning now appears flawed that perhaps the office itself is in need of serious reform i wonder if you would comment on that it's a you're we're now we're talking what we need to talk about this is a deep and hard question where have you gone joe dimaggio our nation turns its lonely lights where have you gone george washington where are the george washington's or the abraham lincoln's among us our constitution puts so much power in one person and it's so very vulnerable therefore um a partnering system if i foreign powers can understand that and push on that oh manchurian candidate fictionally you know that that's that's the vulnerable spot most vulnerable spot in our system so that's one point and i gave you a second we have a much more powerful military than ever before a massive military industrial surveillance incarceral complex i was worth it you know george washington you know he couldn't even envision his army's 5 000 folks who were basically enough to to kill a few indians and mop up the continent um but not enough to threaten americans that's the whole idea so um and now i'm going to tell you a third thing it's an almost impossible job there's so many things you have to do you have to be military commander in chief and diplomat in chief and spy master in chief and legislator in chief for the veto and you have to be party leader now because it's a two-party system and post woodward wilson you have to be leader of the free world and you have to manage federal properties and be prosecutor and partner in chief um and ex and manager-in-chief um of a huge bureaucracy hirer and fire in chief you know and some people may have some experience firing people um as in the apprentice or something um but it's really hard to have all of these competences really hard um and there's no great training for this truthfully um you can be vice president but that's different you can be first spouse but that's different you can be a governor but you don't understand foreign affairs you can be a senator but that's not an executive post you can be a military leader but you may not understand civilian authority you have to be good at so many different things and there's no great training for it and the american people should put such ridiculously high expectations on you to solve everything and you can't actually without a house in the senate and even if you have them the supreme court can smack down your epa plan or whatever um because that's ghosts of administration's past it's a really hard job and most presidents have been failed presidents okay and we don't think about that but that actually is true and the only question is whether they are small fails or epic fails there haven't been that many hugely successful presidents i talked to the end of the book about the president who win who win again and who hand off power to their successors those are the most successful presidents that's washington that's jefferson that's andrew jackson abraham lincoln if we skip over andrew johnson and go to ulysses s grant franklin roosevelt ronald reagan those are the folks who actually win win again hand off power in effect to their wingmen and then their party is sort of the dominant party over the next period until the tide turns again to repeat washington jefferson jackson lincoln fdr and reagan and i'm not trying i'm trying not to be partisan here i'm just a political scientist sort of analyzing the thing it's a really impossible job not very many people have done it well so yeah we have to ask ourselves should we revise it and you know in certain ways how do we think about the cabinet or the vice presidency or other checks and balances you're right those are the questions we should ask um because washington is astonishing he's a like a once you know an in-generation world historical figure without him i'm not sure we would have had the constitution we definitely um i'm sure we would have america he's not just the father of his country he's the father of the constitutional project and and he's pre-party and above party okay now we have how can you be the leader of us all and the leader of the government and one political party to do both at the same time it's hard i think ronald reagan managed it pretty well um um there were two presidents after washington who were at least a presence above party um they are ulysses s grant two terms and dwight eisenhower and in our lifetime that might have been someone like colin powell who could have actually you know won under either but you have to lead half the country because you have to be head of party and lead us all you have to be queen elizabeth and boris johnson i mean just think about that at once as that's quite an image you know sort of head of government and head a party but also head of state head of the world head of the commonwealth wow so you're asking the right question yes uh good afternoon earl watts uh waterville maine i'm glad you brought up the supreme court because that's my question uh first of all i do want to say thank you for your collaboration with peter seagal i've used those in my uh classroom he's such a cool guy big shout out to you peter um thank you for all your friendship over the years so it appears with recent rulings that the originalist viewpoint is coming back very strongly in the supreme court going back to the constitution article 1 section 2 says that the people are the ones who will elect representatives states decided who the people were all the states except for new jersey basically decided that the people were white males it's never been changed in the constitution we have the the 13 14 15 amendments which extend rights but they did don't rewrite the definition of the people we have the 19th amendment which extends voting to women we have the 26th amendment which extends voting to 18 year olds but that's it do we have to have according to an originalist view amendments to extend to be safe and secure in your surroundings to own a weapon according to the second amendment because it's for the people and that hasn't been updated in 240 years brilliant set of questions truly brilliant about originalism the limitations of the democratic project how do we think about this today i told you that the constitution was the most democratic deed in the history of planet earth up to that point but of course from today's perspective it's outrageous because women in general didn't vote and there were property qualifications in many places and there was and blacks in some places couldn't vote and there was slavery of course okay so i'm judging 1787 by 1786 or 1686 or 1586 and i'm saying it's actually pretty good you say yeah but there's also slavery but slavery exists in all the world um it doesn't begin in 1619 all of them um and in fact the thing that does that americans do basically originate is not slavery but actually the idea of abolition not freeing slaves that's in the old testament at ben hur um um that's in a funny thing happened on the way the forum if you hear taste and cries for the community individual slaves get being free yes but the ancient world never had an idea of ending slavery everywhere as a system the world's first abolitionist society is formed in philadelphia in 1775 and eventually ben franklin um and benjamin rosh to sign the declaration of independence will be his theater so um and it takes us too long to do it but i'm judging 1787 by what happened before um now i'm an originalist you might say oh i heard you were a democrat i am you clicked with c briar i did democrats can be a ridiculous it's not a uniquely conservative idea it's about taking the constitution's history seriously um and the most important originalist ever on the supreme court was actually a liberal a crusader um franklin roosevelt's first appointee of the court hugo black he was a weird guy he always carried a copy of the constitution around with him what what kind of weird fellow would would do that so um um but he's a great liberal and one of the differences between liberal originalists and conservative originalists and i'm so glad you asked this question i have an essay it just got uploaded yesterday on time magazine's website time.com um is about originalism um some of our greatest uh um states persons and jurists have been abraham lincoln is an originalist and john marshall is an originalist um so am i so as hugo black and i write about it but the liberal originalists tend to be better at talking not just about the founding but the amendments we the people have made amends over time for some of the sins of the omissions of the founding fathers i told you it was pro-democracy but also pro-slavery and at the end of the day famous person says that he doesn't think actually america can exist half slave and half free we're going to have to it's going to have to be all one or all the other thank god it's all the other half is now all free if you're an originalist of the right sort i studied under robert bork i knew antonin scalia well i'm a friend of clarence thomases and samuel letos they're conservative originalists i'm a liberal of bridges what's the difference well in part liberal urges tend to pay more attention to the amendments amendments that involved more women more persons of color than at the founding moment and actually five different amendments talk about the rights to vote they didn't save the county because of race and slavery 14th amendment section 2 15th amendment which was mentioned 19th amendment which was mentioned uh women's suffrage the 24th amendment and the 26th amendment so no poll taxes and and young adults originalism at its best is about thinking about not just the founding but the later generations which um and the amendments they've actually almost all made the project more free and equal more participatory and that project hasn't ended um we need a 28th amendment and the 29th but we have to come together as a people to do that and both parties are going to need to be involved because it needs two-thirds of the house two so there's the same three-quarters states we're going to be more likely to do that if we actually have a common narrative if we actually know where we came from and and what the vector is our the path so i just told you something pretty interesting it's hard to amend the constitution although they added 10 from the right out of the gate which you call the bill of rights it was originally 12 but two initially ratified one got ratified later so other generations have added amendments and we could too if we could cohere but i told you something interesting the amendments have almost always made the project better more free more equal we can talk about prohibition which made me a mistake but it was repealed but but but all the other they added to liberty inequality the right to vote again and again and again and again for blacks for women for um uh people who don't can't pay a poll tax for a um um 18 19 20 year olds and we're not done so i wrote a book called america's unwritten constitution and the last chapter was about what the amendments of the future might look like and what they should look like and they make predictions and prescriptions so here's what i say first the amendments of the future because if you study the past we can actually come together more the amendments in the past like the constitution of the past built on state prototypes so look at what states are doing that's going to be a model for what the federal constitution should look like in the future states had concrete constitutions first in 1776 they put the constitution to a vote in massachusetts in 1780. bicameral tripartite they did that first they had those rights first which is why the absence looked um weird they got rid of slavery many of them first they gave women the vote many of them first this is a a brandeis point about states as laboratories so look at what states you're doing point one point two i told you it's a two-party system you're going to need to get both parties um on board as a practical matter point three the amendments of the past have generally been expanding liberty and equality and not contracting it take those three simple principles and i can tell you what will be and what should be the amendments the future at least some of them okay era good idea um in most state constitutions or many state constitutions i would hope every member of my party i'm a democrat would be in favor of it i would hope at least half of the members of the other party would be in favor of it um and if they're not oh let's have an election on that um uh so um so um states do it and as deliberate equality i think both parties you know could be involved for it gandhi was once asked what he thought about western civilization he paused for a moment he said i think it would be a good idea okay era oh i think it would be a good idea we pick governors by direct election but not presidents direct election is one person one vote it's equal maybe um i support it i testified on behalf of the constitutional amendment to say if you're not lucky enough as i was to be born in america or i'm born an american citizen at some point you should if you come here legally and you work hard and you make contributions you should be eligible present just like you're eligible to be governor arnold schwarzenegger or jennifer granholm or secretary of state henry kissinger or madeleine albright and picking men and women democrats and republicans states make you eligible to be governor why shouldn't you do that for president states are doing things first so i testified on behalf of a constitutional amendment for that proposition it was introduced by a republican senator a great republican senator he since passed away he was the longest-serving republican senator in the history of the republic and that was his version of the dream act maybe not as exuberant as obama's or biden's but that was his version and it built on what states were doing for governors and he was a republican trying to reach across the aisle to democrats and it added to equality you know why is it really fair if you just weren't lucky enough to be born a citizen that you're forever ineligible his name is orrin hatch i mean i salute him today um and i testified on behalf of that i'm a democrat he's a republican but i'm giving you examples of how if we know our narrative it actually helps us understand where we are where we came from what that vector looks like and maybe then where we should and could be going and we can study how people in the past actually did these epic things adding the rights to vote the words five times in the constitution fourteenth amendment section two fifteen one nineteen one twenty fourth fourth amendment twenty-sixth amendment good afternoon professor thank you for being here uh my name is katie bowling i'm from trumbull high school we're running out of time so let's answer these three questions three questions and i'll be short i'll stop filibustering but we could talk about filibuster reform if you ask so again i'm the fellow from connecticut uh my question for you goes back to the founders besides the hbo series on john adams why do you think he doesn't get as much credit for the founding of our country as as the other five you mentioned oh the person who would you know ask that question especially would be john adams and in this book i actually begin with john adams in boston because he says it started in boston before there was patrick henry before there was thomas jefferson you know before people were talking about ben franklin and george washington i was in the room and at first i said you know he writes this 50 years later then and then there the child independence was born and i'm saying you're just sort of imagining all of that that's what i originally thought did more research i said actually it did start in boston massachusetts was there before virginia um and and jefferson ends up stealing all the credit for this and so i understand you know your your kind of anger so why doesn't he get all the he's not on a par with um um washington or franklin or i would say the others i think he's distinctly six five or six that's my ranking why here's one easy point he is thrown out on his ass if i can say that and c spent i just did by the american people george washington is unanimously elected and unanimously re-elected thomas jefferson is re-elected and then leaves on his own terms james madison um the same so when the american people throw you out donald trump oh it's hard to be on mount rushmore you see and i told you who the great president and he knows that you know and i told you the great presidents were and they were washington the greatest um washington jefferson lincoln um fdr um um reagan um i did not mention teddy roosevelt quite although he is literally mount rushmore so first point such as my judgment the american people threw him out and why because he made it a crime to criticize the president united states okay you can't do that this constitution is based on discourse freedom and opposition listening to people rather than shutting them down so that's why he's too cranky now that said oh i say a lot of nice things about him and here's some amazing things about him i would say the most amazing he's he's a patriot he gives everything he doesn't age well he becomes cranky um but the best thing in one word about john adams abigail oh she's a man she's just amazing and i tell you about her and i tell you about the remember the ladies letter which means something different than what many of you um may have have thought um unfortunately and the biggest kind of constitutional issue of his life whether to sign the sedition act he listens to abigail who is too loyal to him sometimes it's possible for a president to actually make a mistake just surrounding himself with yes people okay and um um washington is really good listening to people who disagree he's got jefferson on his left and hamilton on his right in his first cabinet his war councils people are disagreeing adams isn't good at that he's not a great listener and so he drives people away he listens to abigail but she's too loyal to him and she's annoyed that all these twitter mobs are attacking john adams and she's too thin skinned and he is too so that's why he's not up there with the others hi i'm sarah witkowski from florida and so we've discussed a lot about the bill of rights and um you know discourse uh so both the federalist and the anti-federalists recognize that the articles of confederation were not working the federalist papers had this sense of urgency um while the anti-federalist papers seem to want to kind of pump the breaks and elude that we had maybe six to nine months before we needed to send this proposal out for ratification or maybe even send it back to the drawing board so what do you think uh were the anti-federalists cracked in this urgency or do you think that there may have been more time for deliberation i'm with the federalists and thinking that it was a critical moment it required there wasn't you never know when the next crisis could happen you think it's all about peace and and security and then the the world trade center falls um or you know who saw putin and ukraine coming george washington is a military person he understands that how just he won the american revolution by this uh militarily by this much he lost almost every day he had like three good days in the whole war okay and and at yorktown there were twice as many french as american fighting persons at land and sea and and he understands he can't count on the french going forward words to live by do not count on the french never count on the french okay and washington understands that they can't count on us either nations pursue their own interests okay we have to protect ourselves we don't know when and where the next challenge will be could be from britain could be from france could be from spain now is the time to do it and if we wait maybe we're dead and by the way we haven't paid off all our past debt so who's going to lend us more for the next one i'm with washington and sensing the urgency of the moment richard sturgeon from alabama you've spoken about originalism and secession one of the challenges to originalism is that even at the beginnings not everyone had the same original understanding but you've spoken about how on secession there actually was agreement on this between those who were pro and anti-ratification with conservative originalism quite the rage in many quarters right now and particularly say the texas gop i wonder if you would comment on this um alignment of adamantly uh pushing originalism and yet actually pushing secession with the texas gop actually pushing for a vote on that yes and it saddens me that the texas gop is doing this this is the party of lincoln and it's become the party of jefferson davis and secessionism and disunion and treason and that saddens me how did we get to this point i'll give you two or three thoughts and i know we're at the end so one is people don't know their history you see and that's why i'm so adamant in the book and this is why you were doing god's work because actually i told you in one sentence gee find me one person in this 26 volumes pro or con who actually says hey money back guarantee if you don't like it you can leave one person they don't okay so so they've just gotten their facts wrong and this is easier to check now than ever before because of word searches in the internet and the documentary history ratification project is online and free so one is just there's widespread you know m ignorance um and and refusal to accept facts about all sorts of things whether the earth is round or flat or you know whether the election was fraudulent or not so that's one problem now let me that sounds like a you know just what a pointy head liberal from the northeast would say so now let me say it a different way um one problem is the texas fields and not ridiculously so that there are all sorts of imposition of certain yankee values on texas with um and and there should be more diversity on for example uh reproduction and one thing that just happened the supreme court is allowing different states to go their own ways california to go way left texas to go way right maybe on some things actually there's not enough of a national consensus and when the media on the left just keeps telling you about the polls and the huge national majorities that's insensitive to regional variation and the people of texas understand this most of all because texas was its own lone star republic it was actually in a way that north carolina and rhode island not so much so so they understand that on some things maybe we need to actually allow different to let texas be texas i'm very pro-choice but i i get it because i think we have to hold together as americans because putin is a dangerous person and he would love american secession we have to hold together um militarily geostrategically and this may mean we have to be a little gentle with each other and allow actually different states to at least on some things not on everything not on on things that are clearly in the constitution like racial equality and religious equality and gender equality and and i would say sexual orientation equality i think that's all clearly in the constitution other things that aren't so clearly we liberals may actually need to be more understanding because that's where we're getting this that's why we're getting it and i'll finally end with a personal story because it's such an honor to be with you i'm an immigrant i'm a child of immigrants i'm born in ann arbor michigan and so on the constitution on the day of my birth makes me a citizen it's a great gift and i've been trying to repay that birthday present ever since by by singing the song of the constitution i'm i'm amazingly proud to be an american um and and i see how you know the rest of the world doesn't have what we have my parents actually fled um their part of the world to to come here um but we americans when we've acted together have done epic things when i'm a nine-year-old kid we put someone on the moon and we did it together north and south east and west red and blue and we can't do it without texas because it turns out to be very helpful to be able if you try to get stuff in the space to do it from a lower attitude and and we need yankee engineering but also you know texas strength we need both the first word spoken on the lunar surface is houston houston tranquility base here the eagle has landed okay and that's what we can do together when we work together when we understand the american story together and recognize it's a federal system and there may need to be some some variation on some things secession no but you know allowing different states you can drive 70 in wyoming but please not in manhattan okay they're okay so here's the personal story because this meant so much to me as um an immigrant's kid it took us a long time to have kids ourselves and when we finally did it's 5 00 a.m i'm about to tear up i'm in in new haven and i call my dad up because he's a very proud american as is my mom call me that up it's two o'clock in california 2 a.m in california it's 5 a.m in new haven and i say dad the eagle has landed and he knows what i mean so i'm a deep american patriot i'm an originalist we need to know our history it's what brings us together whether we're immigrants or the children of immigrants or the great great great great great grandchildren of immigrants some of whom came here with bull whips and some of them came here and changed we need to have an american story we need to get our facts right and our facts are you can't secede that's not that's not permissible unilaterally but there are lots of things that you can do but it begins by knowing the american story and that's what you are doing every day is teaching that american story and so i end where i begin by thanking you for your service [Applause]

Channel: American History Videos

Views: 2,825

Keywords: American History, Social Studies, Political Science, Constitution, US Constitution, Founders, James Madison, George Washington, Ratification, Slavery

Id: 1BfzgH1Rhk4

Length: 113min 32sec (6812 seconds)

Published: Fri Jul 01 2022