Magna Carta & the American Constitution

from the library of congress in washington dc good afternoon everyone and thank you for coming to the library of congress i'm staggered to see so many of you here of course we know the reason why but i want to thank you for coming my name is david mound i'm the law librarian here at the library of congress you are here today for our program magna carta the american constitution and this lecture is the third installment in a lecture series that the law library is sponsoring it's part of our magna carta lecture series and it's also a way for us to commemorate the constitution because tomorrow is the annual federal celebration of constitution day and citizenship day so thank you and we are delighted that we're able to join these two events together this year as i just mentioned magna carta is a big theme for us this year because as some of you may know in november of this year we will be launching our great exhibition magna carta amusement mentor november 6th of this year so mark that down on your calendar at that time we will be uh having an exhibition here at the center the centerpiece of which will be one of the existing 1215 magna cartas we will be bringing the lincoln cathedral uh king john magna carta from lincoln england to the library of congress and along with the the uh 1215 magna carta we will have 70 or so items from the library of congress collections that will help explain the influence of magna carta primarily from an american point of view i want to also thank the american bar association standing committee on the law of the law library of congress for co-sponsoring this event and i see liz medalia the chair of the committee sitting in the third row here we want to wave to everybody liz they have been instrumental in helping us with our magna carta project and with all of our related activities so thank you again and also the friends of the law library of congress kim fong who's sitting here in the front row also been very very generous in in helping us with our our programs so the u.s constitution which we are celebrating as part of this program has been amended and interpreted in various ways over the years but it really has endured um since its signing by the delegates back on september 17th uh 1787. um it's the oldest continuing constitution in the world and it is viewed as a document embodying strong institutions free enterprises and principles of freedom now the magna carta which was first issued more than 570 years prior to the signing of the us constitution is the foundation for many of the most fundamental concepts of our legal system and was also an important historical precedent for our founding fathers when they worked on the constitution so we're very very excited that we can combine these two this event today to celebrate both of these documents we are very fortunate today to have with us a constitutional law scholar akil amar sterling professor of law and political science at yale university and he will be discussing the grand project of american constitutionalism past present and future his lecture will highlight the ways in which the american constitutional experience has both drawn upon and broken with english constitutional precursors such as the magna carta and the english bill of rights of 18 sorry 1689. for those of you who may not know professor amar teaches at yale he teaches both at yale college and yale law school and he's an alumnus of both of those institutions he's a leading constitutional law scholar as i mentioned and an author of many many articles and books on the topic the most recent being america's unwritten constitution the precedents and principles we live by i also want to just put a footnote in there i learned earlier before this meeting that professor amar said that he almost never misses classes and he has made an exception for us today so i think we're really really very very lucky to have him here because he should be teaching uh all those law students i guess and so we're very delighted to have professor amar with us please join me in welcoming thank you thank you so much thank you all for coming 11 score and seven years ago our fathers brought forth upon this continent a new constitution conceived in liberty and alas also conciliatory toward slavery and destined to revolutionize the world seven score and seven years ago our fathers and mothers were in the process of bringing forth upon this continent a revised constitution a new birth of freedom in today's remarks i'd like to talk to you about what happened 11 score and seven years ago i'll i'll do the math with you this week and i'll try to put that in the context of what happened seven score and seven years ago the reconstruction of our constitutional you heard briefly about um uh one lincoln connected to the magna carta i'll tell you about another lincoln and his connection to the american constitutional project i'll also try to say a little bit about what happened 40 score years ago that would be magna carta 800 years ago and what happened five score years ago when the woman suffrage a hundred years ago when the woman's suffrage revolution kicked into high gear so ours is a broad story it begins though in mid-september so you heard david mention that mid-september is constitution week september 17th is constitution day what's that all about you've heard a lot about july 4th not enough it seems to me about september 17th so i want to take you back 227 years ago 11 score scores 20 years 11 scores 220 and 7 227 years ago 11 score and seven years ago september 16th 1787 and the world is to a very considerable extent as it has always been on that date there's very little democracy across the planet self-government we here in the new world govern ourselves to a considerable extent so there's some considerable amount of self-governments in um in england the swiss are largely self-governing that's basically it for the planet there uh the rest of the world on september 16 1787 basically groans in chains they're that kings emperors sultans mughal lords feudal chieftains um uh thugs control the planet in the the in the russia's in uh china in in india a british empire on the the with its boot on the throat of the indigenous population africa is not free what's eastern and western europe apart from switzerland it's basically not self-governing so it's basically america britain and switzerland that's it on september 16th 1787 227 years ago today and then something happens on september 17th changes the world the beginning of the year that changed everything the hinge of human history because today you live in a world which half the planet by population and land mass is democratic we won the last century i like our odds in this century going forward so it's completely different world than the world of september 16 17 87 and i claim that is that world we live in is the world created a world basically made in america and made in a certain year the year that begins september 17th 1787 227 years ago tomorrow the world changes there is for a secularist there is bcnad before the constitution and after the document and we'll talk about magna carta and it it lays a certain foundation but it does not change the world because the world of it's not just that there's no democracy you see in on september 16th 1787 there's no democracy on september 16 1687 or september 16 1587 or 1487 or go all the way back very little self-government on the planet you had a few tiny greek city-states the glory that was ancient periclean athens under the kleisthenic constitution a pre-imperial realm forms you had a few little democratic projects but these blinked out um in uh uh in the wink of an eye so so so to speak they they did not sustain themselves over long periods of time or wide expanses of space these were when these democratic projects worked as in uh um let's say ancient athens um they were people who met face to face in a single city a polis they worshiped the same god or gods they had a common climate and culture and and language they didn't extend over different time zones they didn't bring warm weather and cold weather people together it was nothing like that and they weren't able basically to survive against internal dissension and external attack so it's not just that there's no democracy in around the world really and on september 16 1787 there really hadn't been for recorded history much democracy and that is not our world today our world today was created when the constitution went public it's not these 39 great men at philadelphia meeting behind closed doors during the summer that's not the drama the drama is on september 17th when they took this proposal that they had there were 55 people there 39 of them stick around to basically sign the thing won by proxy john dickinson but the drama is when they published it in publications making it public for the people and over the next year the year that changed everything the hinge of human history up and down a continent ordinary people would get to decide whether they accepted this proposal or not very optimistically you know the words but their very familiarity has blunted their audacity you know the words here's how it begins we the people of the united states do ordain and establish this constitution it's a it's a deed it's a doing it's an act of ordainment an establishment it's a constitute as well as a constitution we're going to get to vote on this thing and we can vote it up or we can vote it down but we are going to decide how we and our posterity to be governed and nothing like that had ever happened before on this scale in the history of planet earth the world would never be the same once we actually went to went public which is on september 17th 11 score and seven years ago precisely that changed everything even you see the ancient greeks even when they had democratic constitutions polities they didn't have a democratic constitution making process one guy claiming a pipeline to god or some sort of special authority was the law giver he handed it down from on high a solon a lycurgus a moses these the ancient greek constitutions were not put to a vote the vaunted british constitution of which magna carta is an important part was never reduced to a single text don't tell a brit that she doesn't have a constitution they'll she'll she'll take offense and rightly so she's got one but it's just not a written one it's an unwritten one and by the way we've got an unwritten one too we just have both we have a written and an unwritten and they actually fit together you need an unwritten because you can't put all the rules that really govern everything in in one compact document but but we put many of them in this one compact document britain never did that so it never reduced the basic principles to a compact statement to be voted on by parliament much less the british people so they never did that in britain they never did that in switzerland prior to what we did here in america they never did that in ancient greece or pre-imperial rome or florence or or any of these other prototypes of the democratic project uh let's take 1776 you heard a lot about july 4th and by the way you all know that we declared independence on july 2nd 1776 right okay july 4th is just the day that the declaration of independence was drafted and it ill behooves me to bad mouth the declaration of independence framed as it was by thomas jefferson whose collection will become the library of congress but i'm going to do it anyway declaration of independence is pretty impressive but not put to a vote when the middle of a war um the king of england the war's already started lexington conquered or in the rearview mirror and and this is not a philosophy seminar and and so we don't put it to a vote of the so 1776 as great as it was is not the hinge of human history it it it's john the baptist perhaps you know it's laying the foundation for what will happen before but in 1787 the thing is put to a foot and not just that you see um more and more people are allowed to oh when none of the state constitutions in 1776 was put to a vote now if you're from massachusetts you know that in massachusetts actually your state constitution was to put to a vote and and that will become the the massachusetts constitution of 1780 and it's such a good idea that the that the framers of the u.s constitution decide to to i think the the the um i think uh the uh entrepreneurs in the audience would say to take the idea to scale that's i think what they would say so that's what the us constitution does it takes this idea that it was started in massachusetts and copied in new hampshire in 1784. they had put their constitutions nothing in 1776 but these two state local dress rehearsals because that's how they look in in retrospect are brought to scale in 1787 now the entire continent is doing it and more people are allowed to vote that year than had never been allowed to vote on anything before and in 10 of the in 8 of the 13 states property qualifications are lowered or eliminated for this special vote on the constitution compared to what they otherwise would be in new york for example all adult free male citizens get to vote no race tests no religious tests no property qualifications no literacy tests that had never been true in new york before and wouldn't be true actually for ordinary elections after but in this one special year this jubilee year so to speak this this special year we're going to let more people participate than ever before because we're deciding how we and our posterity to be governed so that's pretty extraordinary not just that it's not just wide participation in terms of who can vote it's massive freedom of speech and of the press now you say professor no that comes from the first amendment and that's a few years later that 1789 when it's proposed in the first congress in 1791 when it's ratified by the requisite number of states professor you're confusing the bill of rights with the constitution that comes later professor that's not 1787 i say no seven we get the freedom of speech and the freedom of the press from 1787 from this year that changed everything because in the process of adopting the constitution it's not just unprecedented political participation who could vote is unprecedented free speech you can say whatever the heck you want and no one shuts you down no one gets prosecuted that year no one is politically killed that whole year you think about just how extraordinary that is even by by today's standards and you can get up and you can say that george washington he just he just is wants um power for himself and you can say that that ben franklin well his heart's in the right place but he's a senile old coot you know and and thomas jefferson wasn't there and patrick henry wasn't there and this is a big mistake and people say all of that and worse and no one shuts them down free speech is baked into our constitutional cake unwritten but it's part of the very process by which we the people the united states in this year that changed everything did ordain and establish the constitution even before it's textualized in the first amendment in 1789 proposed by congress in 1791 ratified the states it's because remember i told you there's an unwritten as well as a written constitution it's part of our unwritten constitution that works a hand in glove with the written constitution it's part of the very process by which we the people the united states establish the constitution by which we ordained and established it what we did constitution is a deed a doing as well an act as well as a text and that wasn't true in 1776 grades was not remotely true of magna carta and stuff that happened before you know what happens in in ancient athens is you know if you say stuff that people don't like you get voted off the island you know and that's not because they have this tv show called survivor or whatever it's cause they have this thing called ostracism which is about voting literally voting people off the island you know look it up that's what an ostracism is you take a vote and and one person loses the ostracism and he gets voted off and he's an exile for for for a number of years we do not we do not do that in america in 1776 in effect we basically voted people off the island not only did we not put it to a vote that was not epic free speech you're either with us or you're a guinness this is not a philosophy seminar this is war in 1776 and if you're not in favor of the constitution here are your choices one leave two shut up those are your only choices okay or you can come over to our side you can convert we'll accept that no one who oppose you're lucky if we don't tar and feather your worst the king of england sent over tens of thousands of troops a massive amphibious assault and when they land on our shores they are they're here to kill us to slit our throats and our wives and our daughters and if we do not hang together ben franklin says we will surely hang separately and by that he means hanged by the neck till we're dead because we're all committing treason if if they win this is not a joke you're with us or your guinness not a single person who opposes the declaration of independence goes on to any political significance in independent america unless they change their mind during the revolution you know and come around no one who opposes independence is basically heard from again politically you know they just maybe just go keep their heads down and that's fine by contrast the people who oppose the constitution in this year that changes everything they're not voted off then they become presidents of the united states james monroe vice president the united states elbridge gary and george clinton justice is on the supreme court samuel chase it's pretty extraordinary who gives us our bill of rights it's basically opponents of the constitution the anti-federalists to a very considerable extent they're part of this project even though they're opposed to the constitution here's here's what happens in this year that changes everything it's the constitution is crowd sourced there are only 39 people 55 people in philadelphia they're smart but they can't think of everything if you believe in democracy you might believe in it for reasons that the marquis de condor say explained actually even before the philadelphia convention met that there's a wisdom of crowds that there that for certain things moreheads are better than one not for everything you know if i want to know what pie really is i'm not going to take a poll you know i'm going to you know ask a mathematician but for certain things many heads are better than than a few this is a condorcet jury theorem by the from the marquita condos a great enlightenment philosoph and and the constitution is a reflection of this idea we crowdsource the thing and the first thing people see and up and down the continent they're asked whether they want to ordain and establish that they say dudes you forgot the rights where's the bill of rights it's in a bunch of state constitutions english bill of rights of 1689 had it and in turn it is building on precursors like the english abuse corpus act of 1679 the petition of right from the 1620s and of course all the way back to that grand old fellow magna carta um from 1215 we're going to get to him um in in in in a bit so so there is a tradition of rights declaration that goes all the way back in a way to magna carta it's magna carta kind of perhaps misinterpreted but interestingly so by later generations so magna carta is eventually going to culminate in an english bill of rights in 1689 and that's in part gonna lead to an american bill of rights in 1789 but via these ratifying conventions that met in this year that changed everything because they said ordinary people where are the rights they're in state constitutions there's they're in the massachusetts constitution they're in the new hampshire constitution you follow the good model of putting this thing to a vote but you forgot to itemize the rights constitution is crowdsourced you know it's it's like wikipedia you know uh avonlea and what phrase appears in more of the bill of rights amendments than any other phrase it's the phrase the people the first amendment right of the people to petition and assemble as in assembling in conventions to decide whether you're for against the constitution second amendment right of the people to keep and bear arms fourth amendment right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures the ninth and tenth amendment rights reserved and retained by the people the people the people the people the people the people that's because it's coming the bill of rights is from this we the people ratification process that's the first thing that we do is we actually when we're actually allowed to talk to each other about how we are to be governed we say actually it's imperfect and we want to make it more perfect still with a series of amendments so that's the year that we come and the world will never be the same you see the ultimate success of this project politically politically economically culturally militarily will change the world the world is i'll let me i'll just share with you a personal anecdote my parents are born in undivided india you know when they're born it's under the british yoke you know they're every bit as much enthralled as american colonists where now india is a billion people it's an entire subcontinent it's a vast diversity of of um uh religions and and and languages and and subcultures it's every bit as diverse as all of europe for example a billion people governing themselves with a constitution and political parties that have free and fair elections and that alternate in power and a fair amount of free speech and religious toleration and and judicial review and and the rule of law that's that forget the details whether it's parliamentary or presidential something that's the american model that's a billion people that's our lifetime it's because of the success of the american constitutional project because of the year that changed everything okay so that's what happened 11 score and seven years ago now what about seven score and seven years ago because you see there was a serpent at the garden and the serpent is slavery and the constitution not only didn't put slavery on a path of ultimate extinction it made slavery powerful as a special interest group as a force you were taught that we didn't we have an electoral college because it's a balance of big and small states raise your hands if that's what you were taught i know you that's what you're taught if that's if that's true how come the big state guy always wins we've had three small state presidents in all of american history uh zachary taylor franklin pierce bill clinton that's it so if it's a big state small state balance they were numbskulls and they weren't numbskulls of philadelphia george washington first president virginia big state small state the biggest thomas jefferson james madison james monroe three four five um the biggest state virginia 32 of the first 36 years it's the biggest state the other four it's john adams massachusetts that's the second or third biggest state depending on you count and then john quincy adams big stake guys win it's not a house and senate you know right across the street here that's a big state small state balance and by the way big states and small states actually that's not where the action is uh big states don't agree with each other never have today florida new york california and texas have very little in common small states wyoming delaware rhode island very little in common that's true 20 years ago too america isn't divided big state small state never has been but that's how senate it's not like you were taught because we had the electoral college because we didn't believe in democracy democracy is a bad word raise your hand if you're a public professor not a democracy more of you were taught this i know i was taught this come on now okay not true they put the thing to a vote we the people um here's why you have an electoral college if james carver were here here's what he'd say it's slavery stupid in a direct election system the south will lose every time because a huge percentage of its population are slaves and they don't vote but with an electoral college you get to count your slaves admittedly at a discount the three-fifths clause but you get to count your slaves that's why the big winner is going to be virginia big state with a lot of slaves pennsylvania has more free people in 1800 way more voters in 1800 than virginia way fewer electoral votes than virginia okay which in virginia the time of course initially included was now kentucky and west virginia it's slavery every single president is until lincoln either a southerner a slave-holding southerner or a northern man a southern sympathy it's a pro slavery northerner and you say well professor what about john adams and john quincy adams their vice presidents are you know the vice presidential running mates are both from south carolina they're they're not anti-slavery as presidents you can't get elected as president they john quincy adams talks a good game about um slavery after he's no longer in the white house and he's just back old man eloquent in massachusetts where that stuff plays very well okay there's not a single anti-slavery cabin officer in all of american history until abe lincoln by anti-slavery i don't mean some john brown radical i just mean someone says slavery's wrong we should get rid of it eventually maybe even 100 years but it'll be the death of us not a single cabinet officer not a single president because of three-fifths clause conceived in liberty but also conciliatory towards slavery and our system almost destroys itself because of that um and don't give thomas jefferson the credit for the ultimate vindication he creates a pro-slave i know he's connected to the library of congress but he creates a pro-slavery party they call themselves the democrats or the republicans potato potatoes the same thing you know but they eventually going to become the democrat party by the way if democracy is a dirty word why is the most influential political party in antabellum america proudly call itself the democrats you know if that's some dirty word in america it'd be like saying oh let's start a new party let's call ourselves the nazis because that's a great trademark no okay thomas jefferson forms an anti-slavery party along with john james madison then america is not divided big state against small states divided north again south you have two elections in which the northern john adams runs against runs against the southerner thomas jefferson both times it's north again south southerner wins the south northern winston north now here's the kick in the head the second time around you take away the three-fifths john adams wins that second time around too he is riding into the executive mansion on the backs of his slaves that's what the critics say at the time it's because of three fifths that thomas jefferson wins that second time around he wins new york which is a slave state that's the the ohio of um of that period where north meets south okay so they created a system more democratic than the world had ever seen amazing but also pro-slavery professor how can it be both pro-slavery and pro-democracy well the greeks had both um you know all previous democracies had both who's our constitution is in a work in an image if you just want it's jackson small d democrat man of the people capital b democrat that's his party but he's very pro-slavery you know he's going to put roger tawny in his chief justice is going to give us dred scott all because of three fifths and the system fails because of that savior is getting worse and worse and worse all the great virginians at the founding are opposed to slavery they think it's wrong they're like people who are addicted to tobacco and they know it's wrong they can't quit but they don't want their grandkids to start that's george washington that's thomas jefferson that's james madison that's george mason all the great virginians george whit by 17 by 1850 you have proud slaveholders slavery is a good thing it's it's like a really good thing oh it's so much better than what you've got in the north we take care of our slaves in their old age oh it's wonderful we we christianize them they're so much better off than they would be in africa they're not saying that stuff in 1789 they know it's wrong but our constitution creates a system that actually rewards slavery gives slavery more political power the more slaves you have the more clout you have in the house of representatives in the electoral college because of the three-fist clause and our system almost destroys itself because of that and people take up arms against a duly elected government because they've become they're kind of like you know nazis of online they're they're tyrant slavery is tyrannical in its fundamental essence and it corrupts it's a cancer that grows and grows and grows and so don't give thomas jefferson the credit for any of this his system just he creates a democrat party they all they destroy they almost destroy everything but in the ashes of the civil war our system is reborn seven score and seven years ago the 1860s 1867 the seven score and seven years ago and we get rid of slavery with a 13th amendment and we promise black citizenship with a 14th amendment equality and political equality black men are going to get to vote equally not just one one person one vote one time in new york but every time everywhere after the 15th amendment and that's this new birth of freedom and lincoln amazingly and here i'm going to get to magna carta in just a minute and tell you about a woman's suffrage he's very generous but he's also politically brilliant he gives the credit to jefferson you see to some very important sense he's appropriating the other party his party is formed against the democrat party okay but he's saying something nice about jefferson the same way barack obama says something nice about ronald reagan the same way that ronald reagan says something nice about fdr but he's trying to actually appropriate to some extent the power of that other party and for his own purposes so what does he say he says four score and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal okay that's jefferson's language from 1776 but lincoln actually means it in a different way because if jefferson really meant all men and women well then he's a hypocrite because he'd never freeze the slaves he dies a slavehold and he knows it's wrong and if he didn't mean it then lincoln is reinterpreting it either way it's bad for jefferson there's there's no real good way if you really think seriously that jefferson comes out looking great you know given this but lincoln reads him at his best and reinterprets him and that reinterpretation is now put into the text of the 14th amendment the word equal gets put in and a phrase equal protection the first sentence of the 14th amendment which is the vindication of lincoln lincoln's talking about a new birth of freedom the 14th amendment begins with the idea that everyone is born equal the 14th amendment begins with a sentence all persons born or naturalized in the united states are citizens of the united states and of the state wherein they reside and therefore equal citizens we are all born citizens we are all born equal citizens we are all created equal this is a reinterpretation to some very important extent of the founding it's not maybe it's not quite jefferson's idea but now it's a new birth of freedom a new generation and that's how our constitution works part of the unwritten constitution is how to read earlier texts in light of later texts like the 14th amendment and that's going to be the same story as magna carta which i'll get to in just five minutes so at the very end so we call it the bill of rights it doesn't call itself the bill of rights when you look at the constitution it doesn't have that phrase in it in england there's a thing called the bill of rights in 1689 there's in many state constitutions the official caption of this right section is the declaration of rights or believers it's not in the u.s we call that because the framers of the 14th amendment called it that you know we called the first amendment it was originally the third on the list it wasn't first for the founding generation it was third but it's first for the reconstruction generation who kind of creatively reinterpreted we think that the first amendment what we call the first amendment has speech and press and religion yoked together because it's about religious speakers but the framers of the first amendment didn't think that that's why they were linked together no state constitution links together religion and speech and press the framers of the 14th amendment thought it was about preachers in the pulpit preaching against slavery so they saw the connection between religion and and and political speech and press but the framers didn't and we interpret all of this through the lens of the later amendment even if it's even if it's a misinterpretation it's a misinterpretation that is codified in a later text it's like i think it was ma ferguson who said you know if english was good enough for jesus christ it's good enough for me um and and speaking of english you see magna carta is not even written in english how that i don't know what the hell it says you know most of you don't it's like latin we today read it as if it says law of the land but that's a later translation of it we today and the constitution is remember the supreme law of the land in article 6. we today say oh no one can be deprived of life liberty or property without due process of law that's actually in the fifth amendment bill of rights it's in the 14th amendment the lincoln generation reinterpretation and we say due process of law oh and that means and that and that builds on what was originally a chapter 39 or 29 depending on you how you count of this magna carta from 12 15 800 years ago but in 1215 it wasn't about jury trial americans think it is my lord cook thinks this later generations of englishmen read magna carta as if it's about jury trial and later generations of americans read magna carta as if it's about jury trial but in 12 15 it's not quite about jury trial jury trial is just getting going they're still doing trial by battle and trial by ordeal the pope in in 1215 is just that year actually saying no more ordeals anymore um that um jury of peers means like barons peers lords like as in the peerage it's not about like ordinary people in jericho the barons that running me don't give a damn about ordinary people commoners later generations of englishmen and americans are going to reinterpret magna carta in some very interesting ways in the same way that you and i reinterpret what we call the bill of rights the original constitution through the prism of a later constitutional amendment let me give you one example here this um are you going to pull that up on the screen for me thanks let's talk about this very uncontroversial thing called the right of the people to keep and bear arms and i know you know that it's everyone agrees of course on what it all means and um um and and here in dc you know i know this is the land of heller um okay um see the top picture there that's the original second amendment vision that's the battle of bunker hill um it's a painting by john trumbull i have to just mention that he's a yale man and that the um original of this um now many of his hang in the capitol building his great epic paintings of the american revolution and constitutional period in the in the rotunda but some of them also in the uh replicas or other versions in the yale university art gallery this is the most famous political painting in america the battle of bunker hill and the good guys are the local militia um on your um on your left and the bad guys are the red coats you know they and they symbolize death destruction plague pestilence um this is the original second amendment vision when guns are outlawed only the king's man will have guns his arms bearing is localist and political and military and collectivist it's about militias okay that's actually the segment it's lexington and concord and bunker hill okay and that's why in 1776 this is not a philosophy seminar the fighting's already begun dying has begun you're with us or a guinness that's the founding vision it's about local militias and by the way do you see in the far right corner of the screen one kind of little sort of dark that's one black person in the corner of the screen not part of big part of the story that is not the vision of arms bearing that we have today in america and here's why because the vision of arms bearing was transformed during the civil war look at the bottom picture that is from harper's weekly from seven score and seven years ago that's from the 1860s it's called the freedmen's bureau the guy who's painting that or doing that drawing is punning on the earlier one don't you see the similarities the flag of the central government in the middle you know the one black person stage right has now become a lot of black people the militia on stage left has become sort of klansmen okay um you see the difference and the similarity flag flag one black person lots of black people these guys have become these guys okay and and this isn't like random this isn't monkeys and shakespeare this is a a an artistic illusion because everyone in america knows that first one but now it's a different vision the good guys of the central government the army in the middle they're not bad guys under the flag the flag is no longer the union jack that we never voted for it's our american flag that we fought the civil war but the good guys are the central government and they stand for the flag and the constitution and order and they will protect black people in their homes on one side from white marauders on the other side klansmen because now and that's a new vision of what we will call the right to keep in your arms it is individualistic and low and nationalistic and private um and and non-military individuals have to have guns in their homes especially black people because if you don't have a gun in your home no one will protect you you can't counter the local constabulary when the clan comes calling top pitcher when guns are outlawed only the king's men will have guns bottom pitcher when guns are outlawed only klansmen will have guns that is the modern image of of arms bearing the national rifle association was founded after the civil war by a group of ex-union army officers led by burnside i believe and so we today are the product of many generations of constitutional advancement yes we are the children of 1787 but that was transformed in the civil war it's pro-slavery elements were repudiated um the original bill of rights is much more localist it begins with the words congress shall make no law dot dot dot and today's tea party just says congress shall make no law exclamation point okay and it ends you know just no law of any sort you know and they're coming close um and it ends with the 10th amendment the original bill of rights is a response to anti-federalist tea party skepticism but that's not fully our constitution today our constitution was transformed in the civil war which the good guys were the national government and the bad guys were the local militias and we have a 14th amendment creating a bill of rights against the states and the localities and not just against congress and you and i are the products of all that and we read all that back into the earlier texts even though it doesn't quite say so that's part of our unwritten constitution how much of the book of isaiah is reinterpreted in light of the new testament so christians do not say a young woman shall give birth they say isaiah says a virgin shall give birth christians read the old testament through the prism of the new testament a later set of scriptures americans christian or not read our constitution in light of later constitutional interpretations maybe misinterpretations okay they thought speech and press were connected to religion for a different set of reasons they thought the first amendment was first because it was you know supposed to be first even though it was only accidentally first but those later amendments are part of our constitutional tradition in the same way that the misinterpretation of magna carta by later generations actually today are important parts of what magna carta really means it may not matter in the deepest sense for all purposes that originally it wasn't about jury trial it came to be about jury trial in later not just interpretations but enactments let me end because i did promise and i'm so glad that there are a lot of folks of the female persuasion in the audience as well as of the male persuasion i i promise i'd just say a little bit about woman suffrage hillary clinton and um so we're not done in 1860 1860s yes black men get the vote but what about women that's going to be still later generation a doubling of the franchise five score years 100 years ago is when it's kicking into into high gear and that amendment the 19th amendment a glorious amendment see now no one today should sensibly read the words all men are created equal and with a gendered male is all humanity is created equal all persons are created all men and women are created equal we are all born equal the birth equality is such a powerful one it's that we are born equal black and white male and female jew and gentile rich and poor whether you're born in wedlock or out of wedlock whether you're first born or third born you shouldn't have primogeniture and entail rules i would say whether you're born gay or straight we're in the middle of a great national conversation about that interpretation but this birth equality idea it's it's a very powerful one and it at the deepest level does it really matter totally what was in thomas jefferson's head great man though he was and connected as he is indelibly with the library of congress but does it really matter at the end because the guy dies a slave holder and he never freezes slaves and he knows it's wrong so i just had to get that off my chest um and um and that's because i grew up so admiring him that he kind of disappointed me the most i think and james madison too and as great as lincoln's generation was they didn't you know what about abigail adams and remembering the ladies and that's a later generation still and here is the point the words themselves in the 19th amendment do not say that women get to vote equally on juries that's part of an unwritten constitution but of course they do if you can vote you should be able to vote equally should be able to vote equally on jurors it doesn't say explicitly that they get to vote equally in a legislature but of course you can't prevent women from serving in you know a woman's place you know i i once saw this little sign a woman's place is in the house and the senate and the right to vote doesn't explicitly say a right to be voted for so here's a hypothetical suppose some state in the next election says we're not going to allow the name of um let's say it's ohio and it's controlled let's say by one party this is just fanciful of course and they're worried about a presidential candidate of another party and so they get a law through and the law says no female will be allowed to have the name on the ballot now is that unconstitutional i think that's obviously so but when and how did that become unconstitutional because you know at the founding you know only men are voting only men are present it says he him his all throughout article 2 and they mean he him is they're always talking about whether presidents are gonna be like kings no one ever asks is the president gonna be like a queen you know and they have experience with queens virginia's named for you know the queen elizabeth virgin queen william and mary is named for a a female co-monarch so i don't think of course at the founding a state of ohio or any other state could say women can't be president that's and after the civil war i think still of course women women can't vote how can they how can they serve so if you believe as i do that a woman has an absolute right to run for president on equal terms i think it's the 19th amendment or nothing it's not the found it's not magna carta it's not what these barons at ronnie mead were agreeing with king john about you know and it's not 11 score and seven years ago and it's not seven score and seven years ago is five score years ago we the people the united states revolutionized yet again our project by bringing women in as full and equal political participants even though it doesn't say all of that explicitly even though i'm reading the spirit as well as the letter of the 19th amendment i'm combining the written constitution with an unwritten constitution and that's my fellow americans i think what we all have to do so i end basically by saying as great as magna carta is as great as 1776 is it really did start 200 our modern world 227 years ago this week 11 score and seven years ago it started then but it didn't end then it's still ongoing and here's the last thing i guess i want you to think about what should our constitution look like in 2020 what should it look like seven score in seven years in the future constitution of america and the world what should it look like 11 score and 7 years from now or 40 score years from now what should america and the world look like the framers 227 years ago they put forth a document talking about securing the blessings of liberty to ourselves and our posterity well we were their posterity i think we also need to think about our posterity and i think if we're gonna think seriously about the future we have to take seriously the past we have to take seriously where we came from and the claim is it really did all begin um for 11 score and seven years ago this week thank you very much i'm i'm delighted to take some questions i know some of you have to have to get going but happy to hear your comments or questions uh in terms of the full and equal rights of people and yes the unwritten constitution um and we now have blacks being equal and he's getting equal and women being equal yep um you're feeling on atheists and things like in god we trust and under god in our pledge of allegiance do you think they at some point will be full and equal as well wow that's a really good question i do think that our norms have evolved on that um just if i'm describing the supreme court case law here are two basic principles to describe where the case law basically is the um older uh um and a particular um practice is the more likely it's to be upheld so if we added in god we trust today to the coins there would be a lot more judicial pushback um but it was added in the in 1860 in the 1860s so there's so it's it has kind of receded and the more sectarian the reference is if it were in jesus we trust or an ollo we trust so so the case law today has not fully um reached what it might one day reach which is um basically that the the government really has no business taking saying anything theological that's just not it's it's a proper role here's what i can tell you about the constitution which is pretty extraordinary i told you about some of the things that it does say here's what it doesn't say it doesn't actually have explicit references to god as almost all the state constitutions of the time did the declaration talks about our creator and the constitution actually doesn't the constitution actually prohibits way before the first amendment religious tests for federal office holding that at a time when no state constitution no state constitution prohibits religious tests only one state in fact prohibits religious tests that's virginia and does so by a statute that could be changed the next day and uh 10 or 11 of the states actually have religious tests and have them in most of them in their state constitutions themselves most state constitutions in order to hold office require people and it varies from state to state to believe in to believe in protestantism or the trinity or christianity or god there are just a whole series of of of religious tests in the different states and there's none of that what's really interesting about for example the presidential oath which is prescribed word for word for word is partly what it doesn't say it doesn't say so help me god people are allowed to say that as a matter of private religious choice and many modern presidents have there's a debate about whether george washington did or not although he kissed a bible at that ceremony and he swore on a bible um but um we that's actually um uh uh our constitution was far more sort of secular um and um than mistake counterparts i do i did say that i think we are all equal jew and gentile and that's one way of understanding sort of many states had established churches before the civil war but but none by the time of the civil war so it's a very good example of genuine um change but we are we but today there are not five votes i i believe to to get rid of the words under god in the pledge or the um the the um uh words in god we trust on the coinage or the practice right across the street of commencing every court session with god save you know this honorable court but who knows what the world will look like here ours is still a very christian country protestant country actually overwhelmingly supreme court mainstream protestant country not there's not one mainstream protestant on the court there's six catholics and three jews let's take the four people who ran for a president and vice president last time around a mormon mormonism didn't even exist at the founding you know a catholic paul ryan a catholic barack obama there's only one protestant to the group you know and he's one that the framers would have had you know it would have been i mean because he's of course african-american too that um let's look at um john boehner he's catholic let's look at harry reid he's mormon so um so our culture has been pretty extraordinary it's a religious country and of the four guys up there on mount rushmore two of them are not kind of conventional church going christians they are more religious free thinkers thomas jefferson and abe lincoln so really it's a great great question thank you for asking it thank you for this uh talk i must say that uh i come from a different back legal background i did my legal studies in the netherlands yes at university utrecht in the netherlands yes uh which you know is a sudden debate between case law and continental law et cetera et cetera i don't want to get in that but um what i'm interested in and what you're saying is obviously you're talking about the ongoing evolutionary process of law in law making in constitutional making constitutional interpretation right and amendment i don't mean obviously but there's a big problem with that i don't want to get in critical legal studies and stuff like that but um you were talking about how the unwritten constitution obviously helps in the interpretation of the written constitution and often kind of pushes up against the limitations inherent in a written constitution and and pushes away that but it's also problems inherent in the unwritten constitution absolutely and this can also lead to problems uh if you want to turn down the written constitution into a written constitution moving forward right but the big problem in all of this is uh for those that you talk about you talk about slavery right there's still ongoing tremendous amount of discrimination and marginalization that minorities or others face in the society whatever type of uttering they may be right that you know because you're evolutionary often it it it it kind of faces the problems here now right don't worry uh yes i know you are facing problems yes i know you're facing discrimination unless less i know this and that but things are getting better so you know eventually things will get better yeah but the problem is here here now yeah you know here now i'm a slave here i know i'm being brutalized yeah no i can't get a job yeah et cetera et cetera another problem you you and you ended um talking about you know what's the constitution to come obviously america is undergoing tremendous change right now right american father 50 years old will not be the most powerful country in the world anymore china and all probability will be india other countries to come it will be powerful but certainly not the most powerful country in the world its demographic made up makeup will not be protestant anglo-saxon dominant anymore it be you know a mixed-up society a change society minority majority majority mixed society i hope not mixed mix well mixed up i mean is it's going to be ethnically much more diverse yeah that's what i'm saying good but so um one of the big problems and limitations in american constitution is is not having socio-economic rights do you see a move more towards that great with this type of thing thank you thank you thank you a lot there um two um no a lot there two thoughts um maybe three one i believe that we have a written constitution and it's our sheet anchor and we don't want to give it up because i'm very glad that there's this thing called the first amendment and that congress can't make flag burning a crime or criticizing incumbents a crime even if they call it campaign finance reform and and i'm kind of glad that it's not so easy to amend as a young man i thought oh it's too hard to amend things could be so much better now as an old man i say you know it could be a lot better but they could be a lot worse and in my lifetime i've seen a lot of bad amendment proposals sort of fail you know marriage is one man one woman flag burning should be a crime in the constitution itself um last week the senate was debating i think an ill-conceived um amendment to the first amendment about campaign finance there are i believe in campaign finance reform i don't think that was actually a very well-drafted amendment proposal and it failed because it's hard to amend so here so we have a written and an unwritten constitution and they work together i don't want the unwritten to undermine the writ and i want it to work together to supplement the written doesn't tell us how to interpret it so rules of interpretation are themselves unwritten so we need an unwritten but we don't want it to undermine the written that's the first point we have to have both and they have to fit together in a certain way the unwritten has to supplement you know without supplanting and undercutting the written that's one two one of the most interesting aspects of the american constitutional project is actually we have 51 constitutions and not just one we have 50 state constitutions and the state constitutions often are dress rehearsals for federal reform massachusetts put the constitution to a vote first and then new hampshire did states had bills of rights first and so the omission seemed really obvious to the anti-federalist critics many states got rid of slavery first states gave um recognized black equality for states several of them gave women suffrage first so states this is a brandician point louis brandeis laboratories of democracy states actually are working out very interesting reforms that can be copied by sister states and then eventually used as models for federal emulation almost everything in our u.s constitution actually states did first almost everything um interestingly enough which is by the way why let's say direct the electoral college looks so weird because that's not how you pick your governor in any state you you know basically you know call us crazy but in california we just put all the you know we count all the votes um and if it's close we recount them carefully call us crazy but that's how we californians do it and that's how we texans do it and that's how we new yorkers do it and that's how we do it in all the states so the electoral college looks weird so finally what will be the amendments of the future um and here's my prediction about what they will be and my prescription about what they should be one they should add to liberty and equality not take away all our amendments thus far have added it to liberty except for prohibition which didn't work both parties are going to have to agree on them because it's hard to get two-thirds two-thirds quarters and states are going to have to road test these ideas first now here's an interesting thing a lot of state constitutions do have affirmative social and economic rights rights to education and and welfare and and and the rest not so much explicitly in the federal constitution but in many state constitutions so so one interesting question is have these been good features of state constitutions which ones might be particularly worthy of federal emulation here's one reason why you might get an amendment changing the electoral college because you could one it adds to equality because it's actually one person one vote it's it's an equal idea it's an idea about voter equality two states basically have road tested this idea they're called governors in 40 of the 50 states your governor is a mini president he's he or she is elected independently four year term except in new hampshire and vermont veto pen pardon pen looks a lot like a president but you pick that person one person one vote not with electoral college so it adds to equality states have road tested at first and actually both parties might support this move here's why in the next 10 years the democrats are going to support this because we just believe in one person one vote you know we just principled that way it may be silly republicans will increasingly come to support this because actually they are going to see that the electoral college right now is beginning to tilt in favor of the democrat party as late as 2000 i think that electoral college was not skewed one way or the other it ended up helping um george bush it could have helped al gore on election day john kerry if he had gotten 60 000 more votes in ohio would have won the presidency even though he lost the national popular vote by a couple million but increasingly karl rove and other republicans when they do the math are going to see that democrats actually are more likely to lose the popular vote but win the electoral college than republicans and when that happens when that and i can in afterward i'll be happy to show you the electoral math but just basically the democrats have a lock on states adding up to about 190 electoral votes republicans have a lock on states adding up to about 110 electoral votes you only need to get to 270. democrats have many more pathways to 270 republicans have to fill in inside straight so it's harder for them to do that so so um state constitutions are important federalism is important in america it gave us written constitutions and putting constitutions to a vote and bills of rights and abolition and women's suffrage and it could in the future give us direct election of the presidency time for one more question so i'm afraid um okay yeah because my answers were too long filibustering and all of that i apologize i am i will not leave until you know the last dog dies so so i came all the way down to meet you guys thank you for that lecture you make a very persuasive case about the evolution of ideas in american democracy but i wonder if you could comment to us about something a little different about the status of american institutions in constitutional democracy which is a little different coming at it from perhaps some of your colleagues at yale and study american political development they don't have as rosy of a view on the evolution of institutions as what you've outlined on the evolution of ideas in particular fukuyama has just published this big book about really critical of the structural components of the constitution the fact that the separated power system simply doesn't work uh to keep alive a modern bureaucratic state so i want to know what you think about specifically separation of powers and where does the united states i mean is this something we should have learned from the westminster system of government so it's it's a perfect last question because i can connect it to the previous one so maybe separation of powers is a bad idea but here's the interesting thing every state has that model and that's not required no state picks its governor by the state legislature prime minister cell and they could and on september 16 1787 eight of the 13 states actually did pick their governor's prime minister style through legislative selection so actually america wasn't born separation of powers across the board it became that states chose to move from parliamentary systems of executive selection toward actually a more separation of powers presidential smile they've chosen in every state to make their governor look like a mini president so it may very well i think there are advantages of parliamentary systems i think there are advantages of separation of power systems i don't think one works across the board we've made ours i think actually work well enough maybe it's slightly dysfunctional maybe it's the english system and the metric system is better but conversion costs are considerable the young amar didn't sort of uh and you know think about you know transition and conversion costs the older amar you know is becoming a little bit more funny daddy but the older mr is interested in data and the basic point is none of our states have done that so we're not going to get to a less separated system a more parliamentary system unless states road test it first and show it works here now here are some disadvantages to the parliamentary system so you know at the risk of of offending david cameron but he has no mandate whatsoever you know there were the it was a three-way vote um and at the at it was a hung verdict three different parties and at the end of it no one had any idea if you recall just what happened in the moments after that election whether you were going to have a liberal i mean a labor conservative coalition of national unity or a liberal labor alliance on the left or what we ended up getting this weird thing you know tory conservative and liberal cameron and clegg odd couple and you had no idea that's what you're going to get because that was all done you know wheeling and dealing of politicians after the election people didn't know what they were really getting in a parliamentary system you basically you have to vote at the same time for parliament and um uh the executive branch you can't split your ticket everything is up for grabs in a single election if my party loses this time around i'm a democrat in a low turnout election i'm not going to lose everything because i actually you know my party won four years ago in the presidency and we won on other elections staggered in the senate and so not everything is up for grabs at every election which is in a parliamentary system everything is up for grabs every election and it could be a low turnout election and these people might claim mandates for all sorts of things that they really don't have mandates for and in america you don't get to do really big things unless basically your party controls house senate and the presidency which means you have to win a series of elections each one kind of aggregated slightly differently you know states are different than congressional districts are different than the presidency you have to win a series of elections aggregated differently because there's no perfect way of aggregating and that's not as that's not a ridiculous way of doing it i am so um and yeah we're in trouble but i don't think britain is in any better shape truth be told and i don't think the parliamentary systems are in any better shape just in general i basically do think you want to know and so there's a lot of discontent and unhappiness here's my diagnosis why i'll be straight with you because ours is a two-party system and it works when we have two healthy parties and today it just happens to be the case that one half of our two great parties have gone bonkers and and and that's just a transitional thing and no system will solve that parliamentary systems will not solve that problem and we're just going to have to wait that out and we had a massive recession that made a lot of people very sour and looking for scapegoats and and we're still working our way through that and here and and because i'll end actually on a on a sober fukuyama-like but i hope inspiring note here's why things are harder for us and why they're because we are winning what success looks like is that the rest of the world is becoming more american now yes we are becoming more global that's another thing that you said my friend you know we are becoming the world not maybe i hope not mixed up but more mixed we have we are the place in the world where all the peoples of all the all the countries are actually meeting and intermarrying and and and talking to each other in the great national conversations like the one begun uh 227 years ago this week so so we are becoming more global you know new york is the capital of the world it's an amazing place and dc and san francisco and and la where north meets south and east and east west so so but the rest of the world is becoming more american so we're competing with ourselves so of course there's going to be an evening up this is good for the planet um even though you know it creates more competition they're copying our success stories here's what they're doing they have the rule of law more places democracy in more places free and fair elections and more places free speech and religious toleration more places they used to have huge thuggish military establishments that killed their own peoples and killed each other they're not doing so much of that anymore good for the world we contrary-wise for the first time really have a massive military-industrial complex we didn't have any standing army and peacetime for the first 150 years we had all this free land that we could steal from the indians so that was a good you know but that was like a one-time thing so now the rest of the world we're paying for sort of pox americana for the rest of the world they're copying our model to some considerable extent in in ways that are good that's what success looks like that they're actually becoming in a deep way more american so i don't think their success is because they're parliamentary and we're presidential i think they're you know they're not doing better than us we're all you know becoming great democracies of the world and that's what progress looks like and all of that the world is becoming american all of that is because of the year that changed everything the hinge of human history that started on september 17 1787. thank you thank you again to professor amar for that terrific terrific lecture uh just quickly since we we have run over uh with all due respect to professor amar 12 15 november 6th of this year we will be celebrating uh the 800th anniversary the beginning of the 800th anniversary celebration of magna carta so please come back to the library of congress for that and if you do have some time i have some colleagues here who are interested in talking to you about um what you thought of our program and they're just taking some quick surveys on ipad so if you have a few minutes just please stop and speak with them thank you so much and i look forward to seeing our next program this has been a presentation of the library of congress visit us at loc.gov

Channel: Library of Congress

Views: 35,107

Rating: 4.4914088 out of 5

Keywords: Library of Congress, Magna Carta (Literature Subject), United States Constitution (Constitution)

Id: YZEUr_Cfb-I

Length: 77min 33sec (4653 seconds)

Published: Mon Mar 23 2015