Noah Feldman on 'Madison and Frankfurter: Friends, Enemies, and the Meaning of the Constitution'

MARTHA MINOW: Good afternoon. I am Martha Minow, and it is my great delight to welcome you all as we honor Noah Feldman on his appointment as the Felix Frankfurter Professor of Law. Applause is appropriate. [APPLAUSE] So Professor Feldman will acknowledge in person some of the family and friends who are here. I just want to say how thrilled I am to see his parents, who I've known a long time, his children, and other close friends. And before I tell you some more about Noah's extraordinary background and his career-- and also just hint at the fact that he did such a good job when we had a prior chair lecture that I had to give him another chair so we'd get another one-- I do want to take a moment to describe the wonderful story behind the Felix Frankfurter Chair. So Felix Frankfurter moved to New York City with his family in 1894 and entered the public schools there. He received his bachelor's degree from the College of the City of New York in 1902, and then he came to Harvard Law School. And he was an editor of the Law Review, and he was first in his class, graduating in 1906. He practiced law briefly in New York. Then he joined the US Attorney's Office as an assistant to Henry L. Stimson. President Taft appointed Stimson to be Secretary of War, and Felix Frankfurter became the Legal Officer of the Bureau of Insular Affairs. Felix Frankfurter went on to argue cases before the United States Supreme Court. And he remained at the War Department after Wilson became president. And then he accepted an invitation in 1914 to join the Harvard Law faculty as a full professor, becoming the first Jewish professor at the Harvard Law School, where he taught for 25 years. He then was nominated to the United States Supreme Court in 1939, where he spent 23 years. During his lifetime, he was a leading civil libertarian. He was a defender of Sacco and Vanzetti. He was, I think, widely understood as one of the first public intellectuals. You see there's a kind of match here between the chair and the person. On the occasion of his 80th birthday, his sister Estelle launched a fund that she hoped would support a professorship in constitutional law to be named in his honor. And ultimately, that's what happened. And it enabled, with the contributions from other people, the launch of this chair in 1983. And previous holders of the Frankfurter Chair include professors Abraham Chayes, Professor Alan Dershowitz, and Professor Cass Sunstein. After he passed away in 1965, after Frankfurter passed away, Dean Erwin Griswold described him, and I quote, as "a man of great vitality, physical and mental. He was always on the move. He was always stirring up [? novel ?] ideas. He was a great stimulator of students. He told them to do things and then saw to it that they did them, and was generous in sharing credit with them." Do you see why this is such a perfect match? Griswold's description of Frankfurter applies to Noah Feldman. Noah is a man of great vitality. He stirs up new ideas, and he encourages students. The breadth of his scholarship is nothing short of astounding. It stretches from American constitutional law, the relationship between law and religion, constitutional design, the history of legal theory. And Noah is also a distinguished scholar of Islamic studies and Islamic law. He served as Senior Constitutional Adviser to the Coalition Provisional Authority in Iraq and subsequently advised members of the Iraqi Governing Council on the drafting of the transitional administrative law, or its interim constitution. Noah is a rare kind of scholar who can influence law and policy on the international stage while also writing for a popular audience. He's a prolific columnist for Bloomberg, and his syndicated columns on law explain the workings of the United States Supreme Court in international law to everyone while also speaking to experts in those fields, often with a critical eye. His seven books bridge the gap between theory and practice and between experts and generalists as well. His 2010 book, Scorpions, explores the history and legacies of the United States Supreme Court justices appointed by Franklin Delano Roosevelt, with insights for scholars of the court, including members of the court who have told me it's the best book they read in years about the court. One of the scorpions Noah explores in that book is a man named Felix Frankfurter. Noah showed extraordinary promise in his early academic career. He attended high school not far from here at Maimonides in Brookline. In his senior year, he did something that few American high school students have ever done. He won the US Chidon Competition in Hebrew, which is like, I don't know, the Olympics on the Torah, on the Bible. An amazing kind of thing. But then he said, I'm going to compete in the International Bible Contest, the Chidon Ha-Tanach. And sometimes it's called Jeopardy for Jews. And it's, of course, assumed that the person who wins will be an Israeli, every year. But in 1988, Noah Feldman and his co-American Jeremy Wieder, who's now Rabbinic Dean at Yeshiva University, defied the odds, and they put the Americans on the map. And Weider won the competition that year. And Noah, not too shabby, came in fourth. In a newspaper interview earlier this year, Noah described that experience, and I quote him, as "one of the most important educational experiences of his life, that opened new worlds." Harvard Law School reaps the benefit of that high school year of study. And each year, Noah teaches classes on Jewish law and legal theory. After high school, Noah came to Harvard College, where he earned-- I have to say this-- the highest GPA, I think, in the history-- anyway, certainly in his class. He graduated summa cum laude with a degree in Near Eastern Languages and Civilizations. He was selected as a Rhodes scholar. He earned a DPhil in Oriental Studies from Oxford University. And then he attended Yale Law School. That happens to some people. And he served as book reviews editor of the Law Journal. He also was a law clerk then for First Chief Judge Harry Edwards on the US Court of Appeals for the DC Circuit, and then for Justice David Souter of the United States Supreme Court. He began his teaching career at NYU, following his appointment as a junior fellow at the Harvard Society of Fellows. And I'm thrilled to see people from the Society of Fellows here today. He was offered a visiting professorship at Harvard, and he then came as a permanent member of our faculty. And he's also now a senior fellow at the Society of Fellows at Harvard. His many books cover so many subjects, and I won't be able to describe them all, because I want to give him some time to speak. But it is noteworthy that his work covers a range from Islamic legal studies; the constitutional work in transitional societies; and works on religion and government; Scorpions, which I've already described, which won the award from Scribes, the American Society of Legal Writers; and received the Silver Gavel Award from the American Bar Association. In 2013 he published Cool War-- The Future of Global Competition, which examines the relationship between the United States and China, and the evolving power struggles. And last year he co-edited, along with Kathleen Sullivan, the case book Constitutional Law, 18th Edition, the book that was launched initially by the distinguished professor Gerry Gunther. Bloomberg magazine once described Noah Feldman as the most beautiful brainiac. Esquire dubbed him one of the 75 most important people of the 21st century. Men's Vogue lauded his sartorial sensibilities. Noah himself has described the way that he dresses as think Yiddish, dress British. He's appeared on The Colbert Report. He's explained concepts there like Sharia law and US-China relations. And as our Class Day Speaker last year, comic, actress, and writer Mindy Kaling set the Twittersphere abuzz with her repeated references to Noah in her speech, and her dreamy prediction that one day they would fall in love. United States Supreme Court Justice Elena Kagan, when she was dean, called Noah Feldman, and I quote, "one of the stars of his generation. A brilliant thinker and writer who has produced a remarkable body of work while still early in his career. From his on-the-ground knowledge of lawmaking in Iraq to his historical research on religious freedom in the United States, his range is as wide as any in the Legal Academy." Laurence Tribe, the Carl M. Loeb University professor, said, "I'm not always persuaded by Noah's take on the global scene or by his sense of what the Supreme Court is up to. But I never fail to learn something new and intriguing from his eclectic outpouring of legal and geopolitical insights. His brilliant study of Justices Frankfurter, Black, Jackson, and Douglas, perfectly titled Scorpions, is a splendid work of scholarship that brings legal and political history to life in a way I cannot imagine anyone else doing as well. More than just a jewel in Harvard's crown, Noah Feldman is an international treasure." And William Rubenstein, the Sidley Austin Professor of Law said this-- and I'm sorry, I have to quote it all. It's so good. "When Noah Feldman opens his mouth, words flutter out like butterflies loosed from a net. The effect is luminous, but the substance concrete. Few people know as much about as many things. Fewer still are able to articulate their knowledge with the style, insight, and passion that Noah, with little apparent effort, commands. I once took Noah along on a vacation with my family, so I wouldn't have to work at conversation with my sister and brother-in-law, with whom I have little in common. All I had to do, all anyone had to do, was to toss out a topic, any topic-- say, Jewish baseball players in 13th-century Azerbaijan, and then sit back and enjoy. Noah's brilliance is often so dazzling that it risks masking the remarkable person who lies behind-- a teacher who cares deeply about his students and inspires them, a colleague generous with ideas and encouragement, a friend always willing to lend an ear or even to go on someone else's family vacation to run interference, and a parent with incomparable energy, patience, love, and affection for his family. The glory of Noah's artifice persistently enchants. His presence in our community is a great treat and honor." I cannot say better than that, other than to say it is my distinct honor to be, not only dean, but also friend of Noah Feldman, the Felix Frankfurter Professor of Law. Noah. [APPLAUSE] NOAH FELDMAN: Thank you all very much for coming. Martha, thank you so much for that much too generous introduction. Many of the things that Martha mentioned were things that I could never have done without Martha. Society of Fellows, the first time coming to teach here. The only reason they let me into the Society of Fellows the second time is that Martha when on leave to do a little job called being dean. I am hugely grateful to you, Martha, for all of those things, and I really deeply appreciate your words. I'd also like to thank my colleagues for being so kind. Larry, if we did agree about those things, that would make me very nervous. And Bill, thank you very, very much for saying what you said. It does set the bar a little high. I'm not promising anybody butterflies. And then if you want to talk about Jewish baseball players, we have the capacity for a real conversation. I would also just like to acknowledge-- alongside many, many very close and wonderful friends who are here, and students, and colleagues-- my parents, who I'm very grateful are here today; and my kids, who I'm very grateful are here, too, and whom I will have occasion to allude to perhaps a little bit later. And I'd also like to very much thank my assistant, Shannon Whalen, who is spectacular, stupendous, and without whom I could not do even a quarter of the things that I'm lucky enough to have the chance to do. So thank you, Shannon. What I would like to do in the time that we have is offer you a talk that will run in three acts. And in order to set up those acts, I want to start with a specific moment in time. A moment in January of 1939, which Martha already alluded to, when Felix Frankfurter was at home on his house on Brattle Street, and while-- and I'm quoting him-- "in his BVDs," received a phone call from the president of the United States, informing him that he was going to be appointed to the Supreme Court. This was the high point of Frankfurter's life. It was the absolute height of his aspirations. He had made himself-- and I really mean "made himself"-- into a protege, first of Louis Brandeis, who then became a justice of the Supreme Court; then of Oliver Wendell Holmes, Jr., who was already a justice when Frankfurter attached himself to them. He revered these men. He respected these men. He emulated these men. And he also used these men in order to develop a theory of what he called "judicial restraint," that he almost exclusively ascribed to them, as well as to Harvard Law Professor James Bradley Thayer, whom, it sounded, to listen to Frankfurter, like he had studied with. Although, in fact, Thayer had died a year before Frankfurter came to Harvard Law School. And from their extraordinary and extraordinarily disparate ideas, Frankfurter had crafted a single theory, according to which, the right thing for judges to do would be to hold themselves back, to restrain themselves, in his term, from using the Constitution of the United States to strike down legislation-- generally progressive legislation, but Frankfurter thought it applied to all legislation-- that those legislatures had enacted, that some judges and justices believed violated the US Constitution. So just to be very clear, this was the ultimate anti-judicial activist theory. And it wasn't a perfect fit for any of these figures, in part because on some topics, like the First Amendment, Holmes and Brandeis were actually prepared to be somewhat activist and certainly more activist than their peers. And their motives were all very different in the sense that, for example, in the case of Brandeis, Brandeis liked progressive legislation, so he didn't want conservative courts to strike down that legislation. Holmes was a kind of a nihilist. And he thought that if the people wanted to make the country into a socialist dystopia, his job was to let them do it, as he famously said on multiple occasions. Thayer was a historian who wanted to make the argument that judicial review was very rare in the American history of constitutional analysis. So they had different approaches, but Frankfurter made them into a coherent theory, which, as I say, he attributed to them. And crucially, Frankfurter believed, when he was named to the Supreme Court, that he would have the opportunity to make the doctrine of judicial restraint into the dominant controlling doctrine for the US Supreme Court. He would be able then to reverse what had been several decades of intermittent, but occasionally very intense, judicial activism of a libertarian strain that had struck down, in the name of the protection of private property, wage and hour legislation and other kinds of progressive legislation. Now, this was not an irrational thought on Frankfurter's part, because the same president who had appointed him, Franklin Roosevelt, was in the process of appointing many other justices. Ultimately, a grand total of nine justices, including the transposition of one justice from a sitting justice to the Chief Justice, a dominance in appointments unmatched by anyone since George Washington, who didn't have to replace anybody on the court because there was no court. So it was reasonable for Frankfurter to believe that other Roosevelt appointees would share his predilection for judicial restraint, because he was, in fact, the acknowledged intellectual leader of the progressive wing of constitutional thought as it then existed. If you'd asked the other great justices of that era, when they went on the court, who was the most important constitutional thinker alive, all would have said, without a moment's hesitation, Felix Frankfurter. And I include Frankfurter in that assessment. In the very first weeks that he was on the court, Frankfurter almost immediately encountered an opportunity to test these theories in a very important case involving Jehovah's Witnesses, kids, actually, who did not want to salute the flag and recite the Pledge of Allegiance in the small coal mining town where they were suddenly being required to do so as part of the patriotic uprising that went on in the country on the way to war. Frankfurter insisted that although he personally thought that it was a terrible idea to force young people to salute the flag, nevertheless, it was necessary for the judiciary to restrain itself, to hold itself back, and not to strike down the act of the local school board that required the children to salute on pain of expulsion. For Frankfurter, this was a perfect vehicle to express the ideal of restraint, because he could say, my entire life, I've been a civil libertarian. And sure enough, he had been a founding member of the board of advisors, as Martha mentioned, of the Civil Liberties Union. And he could say, you see, I believe that this decision is substantively wrong. And yet, watch me-- and as it turned out, seven of the other justices for a total of eight justices-- restrain ourselves from striking it down, just as we believe the conservative property-protecting judges should have been restraining themselves over the previous decades when there was legislation in play that they didn't like. And this, for Frankfurter, embodied the goals of judicial restraint. And it suggested he was on a path to success, further confirming his joy that he experienced on Brattle Street in his underwear. Within a couple of months, it became clear that Frankfurter had overplayed his hand. Why? Well, there were a series of attacks across the United States directed at Jehovah's Witnesses-- kind of mini pogroms, if you will-- in which, actually, a Kingdom Hall was burned and several people were badly physically injured by angry mobs. And the other liberals on the court reacted terribly to this. That is to say, they reacted appropriately. They were incredibly upset and they said, what have we done here? We had the votes to strike down this enactment, and we didn't do it. And several of them began to send up smoke flares of the kind that Larry, as such a genius at seeing in the Supreme Court's dense doctrine, hinting that they wanted another case before the Supreme Court with the exact same facts so that they could reverse themselves. And just a few years later, a little further into the war, they did exactly that. And Frankfurter was devastated. It appeared that the doctrine of judicial restraint itself that he believed in and that these other justices were supposed to believe in was being repudiated before his very eyes. And he wrote an impassioned, profound, remarkable descent that his colleagues begged him not to publish in the form in which he wrote it, in which he insisted that, as a Jew, he knew what oppression was. He knew what it was to be a minority. But that as a judge, he said, as judges, we are neither Jew nor Gentile, Protestant nor Catholic. This was his intentional and self-conscious paraphrase of Saint Paul's statement that there is neither Jew nor Gentile, nor male nor female. All are one in Christ Jesus. This was not a coincidence for Frankfurter. This was a profession of faith, and it was a very Frankfurtarian profession of faith. He mentioned that he was Jewish for the sole purpose of disclaiming any influence of his Jewish identity on the decision. And simultaneously, he substituted, again very self-consciously, faith in American constitutionalism, faith in a certain vision of the meaning of the Constitution, for the content of religious belief implicit in the Pauline reference. So Frankfurter was saying, there is a religion here. I have a religion. And that religion is Americanism. And he frequently said that in his life, although on one or two occasions, he said that the only institution that inspired any true religious feeling in him was the Harvard Law School. And I think he meant it. Because he associated the Harvard Law School with being the place where this form of constitutional values had been learned and, indeed, where, as a result of Frankfurter's influence and the appointment over subsequent years of his students to the faculty, it continued to be taught much longer than at any other comparable institution. Now, the consequences of the split between Frankfurter and his liberal colleagues are fairly well known, and I spend a lot of time in the book that Martha mentioned talking about them. So I won't belabor it for you now. But I'll just say, in a sentence, that the consequence was, in fact, that Frankfurter's great liberal colleagues, who were Hugo Black, William O. Douglas, and Robert Jackson, each felt the impulse to develop his own grand theory of how the Constitution should be interpreted. And they developed those views through the personal vector of profound mutual detestation. So this group of friends became bitter enemies, and I mean bitter. Frankfurter said to somebody about Douglas that he was the only truly evil man I have ever known. And at the height of the war against Germany, Douglas nicknamed Felix Frankfurter-- who was 5' 5" in his shoes, not in his stocking feet, and sometimes still spoke with a Viennese accent-- Der Fuhrer. So I'm not describing a kind of mild dislike. I'm talking about profound hatred. These men, who had been allies, became enemies, and the form that their hatred took grew out of and was nurtured by their different views of what the Constitution truly ought to mean. Act two. And here I'm transitioning from material that I worked on in Scorpions to material I'm working on now for what I fervently pray will someday be a book about James Madison, the Father of the Constitution, as he is often called. And I'm going to take a specific day in Madison's life, as I took a specific day in Frankfurter's life. And that's the day in the middle of December of 1788 when Madison was on top of the world in much the same way that Frankfurter was on top of the world when he was nominated to the Supreme Court. So what did James Madison's world look like in December of 1788? Well, he had spent the previous five years trying to convince people that the Articles of Confederation needed to be replaced with something new, a constitution. And it had taken a while for him to convince people of the necessity of this. There was a first failed convention in Annapolis, Maryland. Then a year later, the Philadelphia Convention. At the Philadelphia Convention, Madison had taken the lead. Through the mouth of his Virginian colleague, Edmund Randolph, he had proposed a plan that was a pure blueprint for how the Constitution should look. They didn't get everything they wanted, not by a long shot, but they got most of what they wanted. And in that sense, at least, the Constitutional Convention was a product of Madison's initiative and Madison's execution. That wasn't all. That had ended the year before, in September of 1787. Then it had become necessary to argue for the ratification of the Constitution. And Madison had engaged over the previous year in an intense intellectual effort alongside Alexander Hamilton, who had also been a delegate at the Philadelphia Convention, in producing the Federalist Papers, which, although not originally published nationally-- they were originally published in the New York newspapers-- very quickly were collected and sent across the country, and were intended to be and were understood by contemporaries as a full-on philosophical justification for the new constitutional design that had come into existence. And they were full of original new ideas, almost all of them developed by Madison over the previous couple of years, and then reaching fruition and development in the course of their composition. So an extraordinary outpouring of intellectual creativity, comparable, I think, perhaps only, that I can think of, to Einstein at the height of his powers, producing two of the most important papers in the history of physics in a relatively short span of just a little over a couple of years. This is comparable. If you're a constitutional lawyer, I think, Madison is our Einstein. That wasn't all that Madison had done in the previous year. He had, last but not least, had to have an actual, brutal, knock-down, drag-out political fight in the Virginia Ratifying Convention with Patrick Henry, the most powerful politician in Virginia, the greatest rhetorical exemplar of his age, called by everybody the greatest orator that anybody had ever heard, who had fought tooth and nail against ratification of the Constitution. And Madison was not a great public speaker. He was almost exactly the same height as Frankfurter. He lived in a time before the wonders of microphones. His voice was high-pitched to begin with. And when he spoke, frequently, the reporter on the ratification convention would write, I just couldn't hear the rest of this speech. That happened frequently. Some people think that's actually the reason that Madison himself took notes in Philadelphia. He knew if somebody else took notes, they wouldn't get everything that he had to say. And he wanted to make sure that what he had to say made it front and center. Now, this was an incredible victory, and it had been a close-run thing. The politics of Virginia we're not at all clearly pro-constitutional. The tidewater liked the Constitution and the backwater did not. And there are interesting reasons for that, which I'm happy to discuss if people are interested in the questions and answers. So Madison conceived the Constitution, executed the Constitution, defended the Constitution in intellectual terms, and then, in practical, political terms, won ratification. Pretty good. Then what happened? Well, Patrick Henry was not so happy with his defeat. And he was still the most powerful politician in the state. And he controlled the state legislature. The state legislature was supposed to elect the senators. Madison's friends put him forward for the Senate. It was obvious to them that he would be elected. And he was not. Patrick Henry provided it for two other candidates to beat him. Then Madison's friends said, no problem, we'll just elect you to Congress. Seems like a nice, neat solution. And Patrick Henry thought about it and had a brainstorm. He decided that he would first gerrymander-- the word didn't yet exist, although Elbridge Gerry did-- gerrymander the new electoral districts for Congress, which were coming into existence for the first time. So among other things, I'm telling you that "gerrymander" is even older than elections in the United States, in congressional elections. To put Madison's home district in the same district as James Monroe, who was Madison's-- one of his two or three closest friends in the world-- whose politics were almost identical to Madison's. But-- and this was the big difference between them-- had moderately opposed ratification in the convention. Then he further arranged that the district should include many areas which were known to be against ratification. So if you think about all the elements of that, he had set it up so that not only would Madison not get elected to Congress, but he would be beaten by one of his closest friends, who he couldn't really campaign against very vociferously. And Madison remained somewhat composed, but his original plan had been to remain in New York, where the old Articles of Confederation Congress was meeting. And he realized he would probably have to come home now in order to actually campaign, which he did. And in the bitter cold of winter, he went head to head with his very close friend over the question of being elected. And I just noted it, because it's truly funny. An account that Madison gave later of what it was like on one particular meeting that they had, which took place in a German church in Culpeper County. "Service was performed," he says, by which he means religious service, "and then they had music with two fiddles. They are remarkably fond of music." He's talking about the German religious enthusiasts. "When it was all over, we addressed these people"-- now, "we" is he and Monroe-- "and kept them standing in the snow listening to the discussion of constitutional subjects. They stood it out very patiently, seemed to consider it a sort of fight of which they were required to be spectators. I then had to ride in the night 12 miles to quarters, got my nose frostbitten, of which I bear the mark now." And then, according to the person who wrote this down, he touched his nose on the left side, mentioning his scar of battle. Now, most people, faced with one of their best friends in the world, trying to stop them from getting elected to Congress, and, thereby, essentially destroy their political careers-- and it would have destroyed his political career, because this was on the heels of this massive [INAUDIBLE] of ratification. If he'd immediately been voted out of office, he might well have never come back into politics. And by the way, he couldn't just go into the executive branch, because the executive branch was going to consist of something like four people. And the jobs were spoken for. Hamilton was going to be Secretary of Treasury. Knox was going to be Secretary of War. And Jefferson, Madison's closest friend in the world, was going to be Secretary of State. And it wasn't clear if anyone would work for these people at all. So he didn't have a lot of other good options. So most people under these circumstances, when you throw in the cold, and the frostbite, and the Germans, and the fiddles, would not have been so happy about the fact that this was happening. Well, in the end, Madison won. He comfortably defeated Monroe. And he wrote the following letter to Thomas Jefferson, which I just find so extraordinary that, again, I'm going to quote it. And this is all for quotations, I promise. Now, remember, Jefferson was in France. And Madison never told Jefferson early on in the campaign that he was going to run against Monroe. Monroe was also a protege of Jefferson's. And they were Jefferson's two closest proteges. In fact, Jefferson repeatedly, in the years before this, and even in the months running up to the election-- which he knew nothing about, he was in another country-- was writing both to Monroe and Jefferson, urging them to buy property near his Monticello so that they could all live together in a kind of coterie, in which they would be essentially his adoring, younger proteges. And they got along with each other, although, apparently, there was some competitive spirit. Otherwise, Monroe would not have run for office. I think I neglected to mention that Monroe was also lured to running by Patrick Henry. So he knew that Henry was behind this. So I would have thought of this as a great act of betrayal. And here is Madison's description after the fact. He writes to Jefferson, "It was my misfortune to be thrown into a contest with our friend Colonel Monroe." Note the passive voice, "to be thrown." "The occasion produced considerable efforts among our respective friends," which is a polite way of saying that their various friends went to war with each other in order to try to get each elected. The word "friends" is interesting. Now he says, "Between ourselves"-- he means himself and Monroe-- "I have no reason to doubt that the distinction was duly kept in mind between political and personal views. And that it has saved our friendship from the smallest diminution. On one side, I am sure it is the case." Now, that's an extraordinary letter. Whether it was sincere or not, it's extraordinary. To say that we maintained the distinction between our personal views, and our personal feelings, and our political views was to introduce a kind of utopian, I would say, distinction, in which they could go on being close friends. And he was telling Jefferson, whom he knew would tell Monroe, that as far as I'm concerned, we're still going to be good friends. Even more extraordinarily, they were still good friends. After just the slightest lull in the frequency of their communications, they start writing back to each other, and they don't stop for the next 25 years, until Madison gets to be president and makes Monroe his Secretary of State and then his heir. And Monroe becomes president of the United States. So Madison was actually walking the walk as well as talking the talk of friendship. Now, there's a conception here that's distinctive to small r republican government ideas and as well to Madison's constitutional vision that I want to suggest. And that is the idea that a well-drafted constitution-- and this is the belief that Madison held when he wrote those words in 1788, '89-- where people of good will remain friends even as they differ on political topics, and the structure of the Constitution solves the problem of faction. Faction is defined as the efforts by any one group of people to turn the state's interests, the republic's interests, against that of the true interests of the people. Obviously, you can see there's a question of whose interests those are. But if anyone tries to do that, that's faction. There's a true public interest, a true common interest, and you're meant to achieve that. And faction is anything that deviates from that. And Madison had come to believe that by expanding the republic famously to a broad scale, he could solve the historical problem of faction that had plagued republics by creating a republic that would, almost by magic, allow for disagreement without that disagreement becoming faction. He would therefore having invented-- and he thought of it as an invention or as a creation of his own-- a kind of transformative type of constitutional government in which a republic could subsist without breaking into partisan pieces. It was for this reason that the great historian Richard Hofstadter, and social theorist, said that Madison had created and believed he had created a constitution against parties. The idea was to break the possibility of parties, which are the engines of faction, and to assure a world where we all would get along in just the way that Madison was mapping in his relationship with Monroe. They had disagreed about ratification. They had disagreed about the right way the country should go. But they did it mildly and within the context of a more general agreement. And so therefore, they could remain friends. Thus much Madison's worldview as of the spring. Then he went to the real Congress, the new Congress, which was then in New York. It would be nice to say he went to Washington, but it was in New York at the time. And things almost immediately got a lot more complicated. And they became complicated in the person of his closest ally in the ratification process. That is Alexander Hamilton. Now, Hamilton and Madison were not just colleagues, but friends. And they had collaborated in a deep sense on the production of the Federalist Papers. And Madison believed that although at the Constitutional Convention in Philadelphia, Hamilton had said some shocking things-- I'll mention one of them to you in a moment-- that nevertheless, he had changed his views and sort of come along with Madison for purposes of ratification. He had been convinced. Now, the thing that Hamilton had said that maybe should have given Madison a hint that things were more complicated was that at the Philadelphia Convention-- which, as you know, was secret among the members. They took an oath, which they kept, not to reveal the proceedings. Hamilton said that only a monarchy, a constitutional monarchy, but a monarchy, could possibly hope to govern a country as broad and disparate as the United States. And the other delegates were pretty shocked. He was the only person at the entire convention, 55 people, who ever openly spoke in favor of monarchy. Others might have secretly agreed, but he had no compunction about saying it straight out. And he actually-- in the course of condemning the plan of the so-called New Jersey Plan, which was a sort of continued version of the Articles of Confederation, and also Madison's Virginia Plan-- he concluded his long speech on the topic, Hamilton did, by saying that even the Virginia Plan was pork still but with a different sauce. This was not meant to be praise. The idea was that they were both some smelly old piece of pork, not a really true, proper governmental system. But the sauce was a little different. Namely, it was the sauce of being a little bit more small r republican, a little bit more nationally democratic, we would say, using anachronistic terms. So that's what Hamilton had said, but Madison believed Hamilton had changed. And Madison believed wrong. And in the first two years of the Congress, Hamilton engaged in a series of three proposals which were written into reports. They were called reports. They were 60-, 70-page essays, which were made public and given to the Congress, what was really a period of creativity on his part, comparable, arguably, to what Madison had done in the sphere of policy. And I won't belabor it, but essentially, the first proposed the creation of a national debt, in part by the buying up of state debts, with the goal of consolidating the national economy and aligning the interest of the bond markets with the interest of the government, and thereby assuring a commitment from capital to the continued preservation of the republic. Madison thought this was the worst idea he had ever heard, and he opposed it tooth and nail. Ultimately, though, a deal was struck between Madison and Hamilton, with Jefferson presiding, in which Madison agreed to vote for the bill, or simply not to object to the bill, which created the assumption of state debts by the federal government in exchange for Hamilton agreeing to move the capital not to New York, where he was from, or Philadelphia, which was also close to the markets, but to a godforsaken swampy sot spot on the banks of the Potomac. So Madison didn't like it, but he agreed to make the deal. Hamilton was just getting started. Next, he proposed the creation of a national bank, which would be able to issue paper money, create liquidity, and get the economy running. Madison thought it was a terrible idea. But he didn't stop there. Now Madison started to declare, both in writing and in speeches in Congress, that Hamilton's plan violated the Constitution. Why? Well, the Constitution was a constitution of limited powers, and there was no explicit power to establish or incorporate a bank. I won't get into the details of who was right or who was wrong about this. It's itself a very complicated question. But suffice it to say that it was a plausible argument that he was making. But notice that he wasn't simply anymore saying that Hamilton had a bad policy idea. He was saying that Hamilton's idea was out of court. It couldn't be proposed in the United States, because the United States wasn't the kind of republic where a bank was an option. There was yet a third component of Hamilton's plan, the last, which was to take an agricultural republic and turn it into a modern manufacturing industrial state. The Industrial Revolution had begun in England, and he intended for it to continue in the United States. And to do that, he proposed a system of systematic tariffs and, more importantly, subsidies for manufacturing. Now, Madison had imagined an agrarian republic. What he was about to get, according to Hamilton, was a debt-maintaining, industrial trading state. Could not have been a more different vision. And again, Madison didn't restrict himself to saying this was wrong. He said it was unconstitutional. Why? Again, the same argument. No authority for subsidies anywhere in the Constitution. Over the course of the increasingly brutal fights between Hamilton and Madison, they, who had been friends and allies, turned into enemies, a word that they themselves used. Each founded a newspaper. Each founded a political party. The man who had designed the Constitution against parties created one of the first two American political parties within three years of the closing of the process of drafting that constitution. And they went to war with each other. And in his writings in the newspaper that he founded, Madison openly said, who are the friends of the republic and who are the enemies of the republic? And then he gave a description that was obviously referring to Hamilton. So, a process had happened whereby alliance and friendship had turned into partisanship and enmity. Act three, in which I shall try to compare these two processes and make some more general suggestions about the structure of meaning-making, and constitutional dispute, and political enmity. Everything I've said to you until now is more or less fact. Everything I'll say to you in the next few moments is more or less interpretation and therefore open to contestation, debate, and disagreement. I mean, you can argue with the other stuff, too, but it's a slightly different type of argument. So what do these two examples have in common? Superficially, there's some interesting points of contact. Two very small men with a very great talent for friendship. Each with many, many close friends. Each entering the political sphere in an idealistic and naive way, believing in the possibility of concert and agreement within the sphere of political life. Each having created something remarkable. In Madison's case, it's foundational. And in Frankfurter's case, interpretive. And each discovering that that feeling of euphoria, when you think it's all going to work out, is not sustainable in the real domain of actual politics. And each then discovering that people whom he imagined to be his friends could be his enemies. Well, there's a simple and, in my view, too simple theory that might account for what each of them encountered. And I intended to allude to it in the title of this lecture when I spoke about friends and enemies. And that is the famous definition of a concept of the political provided by the German and Nazi legal theorist Carl Schmitt, one of the most fascinating, brilliant, and personally repugnant thinkers in our canon, that's assuming he's in our canon. I the huge privilege of teaching with one of my former teachers, Joseph Koerner, a course on Schmitt a couple of years ago. And I was thinking a lot about Schmitt when I was starting to think about the Madison Project. And I think we agreed on very little, but we agreed that Schmitt was a nasty fellow and that he was an interesting person whose ideas were extremely valuable. Well, Schmitt says that the political is the space for the distinction between friend and enemy. That's the constitutive feature of the political for Schmitt. Friend is not just the people you like to hang out with, and enemy is not just people you don't particularly care for. Your friend is someone who participates jointly with you in the project of the society, especially the political projects of society. Your enemy is someone who attempts to subvert that process or who you believe may subvert that process. And what you do with your enemy is you seek to destroy your enemy. You may seek to destroy him politically, as, indeed, Madison did seek to destroy the Federalist party created by Hamilton, politically. Or you can seek to destroy him literally, which was the interpretation of Schmitt that was adopted by some of his fellow members of the Nazi party. Now, you could apply a Schmittian analysis to this picture. And I think if we had Carl Schmitt here, like Marshall McLuhan, he would say, exactly. The naive liberal is he who believes, as Frankfurter did and as Madison did before him, that there can be conditions of politics where we can all smile and get along. And that naive liberal is quickly disabused of his ignorant position. What's more, I think Schmitt might be able to say, it matters that we're talking about constitutional analysis here, because constitutional analysis is about the most fundamental political components-- sorry-- political commitments that we have. You might be able to disagree with someone without destroying him. In some form of politics, that's not truly political, because it's too trivial. But when you get to the heavy lifting, the big stuff, the Constitution, it's going to be about total victory. It's going to be about destruction. And it's going to be that way, because the stakes are so high. And I think when I started writing, I don't know if I would have put it quite as bluntly as that, but I entertained the thought that perhaps that was the right way to think about the process of movement from a theory of friendship to a reality of enmity in the lives of Frankfurter and Madison. And by extension, just to make the obvious still more obvious, in a political entity like the United States, in which every generation bemoans the terrible partisanship that appears to be unprecedented but never is. And our present moment is obviously just another example of that. But I don't think that the Schmittian account is sufficient to explain either the experiences of Frankfurter and Madison or the underlying phenomenon of partisanship which we engage, or perhaps even the distinctive features of constitutional debate. And one reason to think that is an argument that my son [? Jamen ?] was just making to me as we were coming up the steps on the way in here when I was trying to describe my argument, where he said that it can't be that constitutional debate is the only area where there's friends and enemies, because there are all kinds of bitter and intense partisan political debates that exist and take place outside of constitutional debate. People are doing that in state legislatures all the time, I think was the specific example you gave, right? So, you know, that's a good argument. And it made me feel a little nervous for myself, although, generally positive for the future. And I think it's a good challenge for asking the question of whether the constitutional context of these debates that I'm describing might shed any light on why Schmitt is not completely right, though I'm not going to go so far as to say that he is completely wrong either. Instead, I'm going to try to say that Schmitt is good to think with. So what's the core of the claim? I think it has to do with the way that constitutional practice creates a series of political discussions or discourses that allow us to act as though the other side is our true enemy, without actually transforming the other side into the kind of enemy whom one would want to destroy absolutely. Even, I'm going to suggest, in the content of his views. Not just physically, but even in the content of his views. So let me just make sure the hypothesis is clear, and then I'll try to bear it out for about two or three minutes. And then we can, with any luck, have a conversation about it. And I see enough of my students in the room that I know someone's going to tell me how wrong this is. So the argument again is that there's something distinctive about defining a polity in terms of constitutional commitments, arguing in terms of those constitutional commitments, and sustaining the structure of partisanship through those constitutional commitments, that paradoxically, at least for Schmitt, enables you to look on somebody, call him your enemy, and have him not really be your enemy. He's sort of a pseudo enemy to you. And that you may not like what he says. You may even claim you want his views to disappear, but in fact, you don't fully want his views to disappear. So what would that feature be? What would make constitutional discourse able to do this? Well, here it's useful to talk about Madison's experience, because Madison, first, is the first person to frame a constitutional structure and call it a constitution. And then he's one of the first groups of people, one of the first groups of people, to use that constitutional structure to argue for the wrongness of the other side. That is to say, having first framed this idea of a constitution, he is then the first person to exploit, much against his own expectations, the constitutional structure to say that his political enemies are not just wrong, but unconstitutional. They're outside the bounds of the Constitution. So what were the benefits to him of doing this? What were the advantages that grew out of it? And I don't think he was fully conscious of these, by the way. I'm not making a claim that he-- I've been so far inside the papers that what I'm about to say is not something that I think I could bear out by an account of his conscious thinking process. I think the advantage that he saw was that constitutional discourse, when it had been backed up by broad public acceptance, created a common rhetorical frame of reference in which you could tell people that someone whom you disagreed with was in fact disagreeing with the overall consensus that everybody else had held. Now, that sounds, on the surface, like a great recipe for turning that person into a political enemy whom you then destroy. Right? They're outside the bounds. But it turns out that you can make that argument even while you're simultaneously in the same legislature making policy arguments against them, not constitutional arguments, and saying they're doing a terrible thing. That means you're signaling to everybody that it's possible both to say that somebody is wrong, and to keep on arguing with them, and-- here's the punchline-- to be willing to accept defeat in the sphere of politics of your constitutional arguments. Now, this is the part of the argument that's harder for us to realize, because we're so used to Frankfurter's world, where there's judicial review, and you go to the Supreme Court, and you say, my opponent's view is violating the Constitution. And the court either says yes or no. In Madison's world, the Supreme Court's not engaging in judicial review. It's barely even appointed in this period. In fact, I think it's not yet fully appointed in this period. And it's certainly not going to engage in any serious judicial review for a good, long while. And even then, only rarely. What Madison is doing is that he's in the legislature making the argument that the other side is violating the Constitution. And then, three times in a row, he loses. How does he lose? Through the same constitutional structure that he himself created. Hamilton's got more votes. And what does Madison do each time? Does he declare the other side to be the enemy? Well, he uses those words. Does he go to the streets? Nope. Does he try to shut down the government? Nope. He just enables and allows the entire constitutional structure to keep on running, just as he designed it, with the small footnote that it's no longer the same constitutional structure that it was previously. It's not the same. It's been changed. Hamilton says, it is in the Constitution. There's a general welfare clause. It says Congress can tax for the general welfare. He says it explicitly. Madison says, if that's the meaning of the Constitution, we don't even have a constitution anymore. Hamilton says, watch me. I have the votes. In that structural context, you can declare the other side to be the enemy, and you can keep on working within the system. You have a cover that facilitates your continued commitment to the system, even as you're making this incredibly, I would say, overwrought political argument that the other side is outside the system. But you're signaling to everybody simultaneously that you don't really fully believe it. And that, [? Jamen ?], I think, is part of the reason, I think, why you have people fighting, fighting, fighting about things that are not constitutional politics, and that's totally a normal part of politics. It's also normal in the constitutional debates. There's always a normal political part to the constitutional debate. You say that the Affordable Care Act is terrible policy, and you say that it violates the Constitution. And everyone knows you're saying both. They're not exactly interchangeable. They have different implications. But they commit you to this broader structure of argument in which you can use the vocabulary of political hatred without engaging in the practices that would actually cause you to treat the enemy as an enemy. You're not actually treating the other side as your political enemy. The Republicans of Madison's world are not treating the Federalists of Madison's world as actual Schmittian enemies. They're just speaking as though they're actual enemies. And key point, they're using the Constitution to enable them to talk that way, because the Constitution lets you say, you, my friend, are outside the structure of this polity. It turns out it's great to be able to call somebody your enemy, as long as you don't act on it. And in another sphere, once you say they're the enemy, someone will say to you, well, if they're your enemy, why aren't you doing anything about it? Madison could say, well, the Constitution. That's not a perfectly consistent answer, notice. You could say, well, no, you should be doing something about this. You say to Al Gore, Bush v. Gore is a preposterously, [? consternately ?] false decision. Obviously so. So let's see how many people in the army will listen to you. I mean, it's funny, but the fact that it's funny is evidence. Right? The fact that that's funny is data for the observation that this constitutional structure actually enables a certain kind of masquerade of Schmittian politics. It's a masquerade of friends and enemies in which you treat others as an enemy. You may even emotionally feel that they're your enemies. And believe me, there's lots, lots, lots in Madison's papers and even in his public writing saying that Hamilton wants to turn the United States into a monarchy. So I want to close with an interesting but, in a way, sad, but also, I think, in a certain respect, heartwarming anecdote, about the very end of Madison's political dispute with Hamilton. Right when Hamilton retired from office-- and by this point, Madison hated Hamilton so much, he was full of paranoid fantasies about why Hamilton quit. Actually, Hamilton quit because he was broke. The Republicans imagined that Hamilton, who served the interest of the financial markets, must've been terribly corrupt and built up hundreds of thousands of dollars. One report said that he had 300,000 pounds sterling. In fact, he was very close to bankruptcy. Whatever his flaws-- and they were many and extraordinary-- Hamilton was actually not dishonest, not on that dimension. So after Hamilton disappeared from the scene, George Washington was all that was left on the Federalist side. Now, Madison revered Washington. And he had used Washington in much the same way that Frankfurter used Brandeis and Holmes. He had convinced Washington, along with Edmund Randolph, to attend the Philadelphia Convention to draft the Constitution, because he knew that if Washington, the most respected man in America, was there, the whole thing would not appear to be either revolutionary or, in other ways, prohibited. So he had used him. And they were friends. And in the early years of the administration, Washington used Madison back. Washington's first address to Congress, what we call today the State of the Union speech, he asked Madison to draft it, which Madison did. Then it was read out to Congress. And then Madison drafted the Congress's response to the president. And then Washington asked Madison to draft his response to his own response to the speech he had written, and Madison did that, too. So this is a picture of close political collaboration. By late in Washington's second term, that was all gone. That was all gone, because Hamilton had forced Washington to choose between him and Madison. And Washington had gone with Hamilton. And it's a story for another day, but just there was not no foreign policy in this speech, Hamilton and Washington were pro-British. Jefferson and Madison were pro-French. France and England went to war. They were constantly at war, but there had been a lull. And the lull ended, and they went back to war. And the United States had to choose a position, and the United States had a treaty with France, unsurprisingly, because France had helped the United States beat Britain in the Revolutionary War. And there was a treaty where the United States was pretty much obligated to come to the aid of France in case of war with England. And Washington decided he didn't want to follow that, and he issued unilaterally a proclamation or declaration of neutrality, where he said that the United States would be neutral. And Madison went ballistic. Now, he was upset in a political way by the fact that Washington was siding with England and not with France. Since, if you're supposed to join one side in the treaty fight and you instead declare your neutrality, you're essentially joining the other side. So that was the ordinary political side of it. But Madison wasn't done. He had a new tool, which he had honed in his battle with Hamilton. And the tool was the argument-- you guessed it-- that the other side's action was also unconstitutional. And he started writing and saying that George Washington had violated the Constitution, because it wasn't for the executive branch to declare matters of peace and war, it was for Congress to do that. Since Congress had the power to declare war, Congress surely must have the power to declare peace, or neutrality. Now, I don't know if this argument is quite as strong as the arguments that he made about the bank, but nevertheless, the point is that he made it and made it loudly. And George Washington-- a man so concerned with his honor that almost every private letter that he ever wrote is full of requests for advice about how he could act in such a way that he won't violate his honor-- was enraged by the idea that the Republicans and, in particular, Madison would actively and openly accuse him of violating his oath of office to the Constitution, drafted at a convention of which he was the presiding figure. And he stopped talking to Madison. And he cut him off. And one by one, he began to pick off Madison's friends and associates publicly. Monroe at the time was ambassador to France. Washington had him publicly recalled in humiliation. Edmund Randolph, another very close friend of Madison's, was attorney general. Washington accused him of being in the pay of the French on the basis of some iffy evidence from French dispatches that had been stolen by the British and handed to the president. He never openly was able to go after Madison in this way, probably because Madison lived such a life of extreme probity, not to say altogether boredom. But Washington made it very clear that Madison was now on the outside. He was out. Now, what are we going to make of this? On the one hand, this tool of the accusation of unconstitutionality was being used in a way that would have made George Washington the enemy, in just the same way that Hamilton would be the enemy. Extremely powerful, rhetorically. On the other hand, George Washington was George Washington. I was referring to him earlier in conversation with the kids as the first president of the United States, and [? Mina ?] said to me, uh, yeah, we know he's the first president. So I won't repeat that he's the first president a fourth time. But the fact is, his status and his stature were unimaginable in contemporary terms. I mean, there's nobody in our public life who comes anywhere near the importance or the preeminence of Washington, or his untouchability in public life. And Madison was accusing him of violating the Constitution. And we know that it was a meaningful charge, because we know how Washington reacted. And yet, at the same time, by this point, Madison knew that no one in the country was going to start treating George Washington like the enemy. And even he couldn't really bring himself to do it. Though, in his private letters, he comes awfully close. And as soon as Washington's out of office and John Adams replaces him, Madison starts saying publicly, oh, Adams is so much worse than Washington. Washington would never have done this, that, or the other thing, which, in every case, is not the case. Adams was actually much closer to Madison than Washington was. But it's almost as though Madison can't bring himself to fully treat Washington as an enemy, because you couldn't treat the father of the country as the enemy. So I'm going to suggest that this shows this masquerade in action. We have this tool of the expression of politics, of the expression of constitutional disagreement, which creates the masquerade of the Schmittian political, while enabling us to keep on operating. So the final conclusion is an optimistic one. It's that when you look at our politics, and when you mourn and bemoan, as we have to mourn and bemoan the unprecedented degree of partisan hatred and the incapacity of anybody to get anything done-- and we're going to hear a lot of this over the next two years, even more than we've heard over the last two years-- just remember that this structure, which, in our world today, still flows along constitutional debate lines frequently-- we've got our originalists on one side, and we've got our living constitutionalists on the other side. And sure enough, they magically correspond to the Republican Party and the Democratic Party 99% of the time. That practice is actually not partisanship of the Schmittian enmity type. It is a masquerade of partisanship, which enables us to fight intensely, to argue, to condemn, to express our political passions without actually treating the people we call the enemy as an actual enemy whom we would engage with as such. Thank you very much. And I hope to hear refutations from the audience. [APPLAUSE] Sure. You know I'm not going to call on anybody, but Martha, please. MARTHA MINOW: That was fabulous, and it reminds me, in many ways, of a teacher of music who begins with [? Shostakovich ?] and then goes backwards. Because we see Madison very differently after we start with Frankfurter, through your eyes. My question is, if you're right about the masquerade theory, what is the status of the inability now for compromise to be [? valid? ?] Is that part of the masquerade? Because politics can't happen without compromise. NOAH FELDMAN: So I think Martha's asking, as she always does, the most penetrating question. The problem with the valuing, the public rhetorical valuing of compromise is that I think that that formulation, which we all use and which is, of course, true. I mean, you're saying something-- it's a true statement, that without compromise, there can be no politics. Is that it tends to identify a particular debate and imagine a middle ground in that debate as the compromise, and call that compromise. But there's another kind of compromise in play also, and that's the compromise on the general political context in which everybody is operating. We might not be able to compromise on this number in the budget, but we so far have reached agreement or compromise on not shutting down the government. We've come close a few times, and we'll probably come close again, depending on how it polls. But there is still remarkable consensus. Another way to think about this is, if you compare us to politics in some other places, you know, 20 years ago, when in Europe, there was a real left, Europeans would say, well, American politics isn't politics at all. Your two political parties are the same party. They're both just center-right political parties. And there are lots of good examples of this. The Democratic Party's turn to regulatory reform in the 1970s is just the most prominent and one associated with the Harvard Law School. And now European politics is more like we are. Their left parties and their right parties are probably actually closer together even than our parties are. And the differences in our political world are often differences, not all, but often differences on questions of cultural value, where some kind of cultural compromise is reached even as everybody loudly denies that there's any compromise. And I think gay marriage is a great example of that. Right now, there's still the vestiges of a real political debate. But in 10 years, it will be hard to remember that there was ever a debate about this. There will be some compromise in there. There are going to be some compromises made to evangelicals with respect to institutional obligations to respect gay marriage. And those will be painful compromises, and it would be wonderful to live in a world where they didn't have to be made. But they probably are going to get made. They're going to be called constitutional doctrines so no one interest group has to make them. But the system is going to facilitate that. So sometimes we're in the midst of it, and it looks just so brutal and uncompromising. But in fact, this structure enables certain compromises to emerge, again, often without acknowledging that they're happening. Scott. SCOTT: What's your proof that it's the Constitution per se that's actually creating this masquerade? You know, were all the fights pre-Constitution true fights? NOAH FELDMAN: So great. I don't think that the-- can everyone hear the question in the back? So I don't think that the Constitution as a political institution is creating this compromise. I think that-- let me say two things about, first, what a constitution is and then what it isn't. I think a constitution is a political agreement among elites where they agree on a certain term of reference for subsequent argumentative debate. And you can do that without something called the Constitution, but this is why constitutional scholars, at least historically, looked at countries that said they didn't have written constitutions and said, oh, no, there it is. Look, there's the constitution. So on this view-- and this is more an Aristotelian picture-- every political society has something that is the small c constitution of that country. So in that sense, I think successful political societies that don't fall apart-- not Iraq, for examplee-- have small c constitutions and, if they're lucky, big C Constitutions that are durable agreements between elites, durable against a backdrop of continued ongoing bargaining and negotiation. You know the Constitution has failed when you have a civil war. Now, it's worth mentioning that, not only because of the reference to Iraq, but also because Madison's Constitution only lasted 80-odd years, and then it failed. I mean, the definition of constitutional failure is a civil war, in my view, and the American Civil War came. And it's very difficult, when you're writing about Madison, not to drop a footnote every other paragraph, saying, hey, look at this, this is exactly-- here are the seeds of the Civil War. Here it is coming. Here's Light-Horse Harry Lee, Robert E. Lee's father, writing a letter to Madison about how if the North keeps doing this, I'd rather not be in the polity at all. I mean, you want to just keep on putting bold on it on the foreshadowing, but that would be bad for the reader and it would be anachronistic as a matter of historical work. But it's hard to avoid thinking that way. But the reason that it's not the right way to go is that it did work for 80-odd years, which, as constitutions go, is a remarkably durable constitution. So all you can do then is show the fault lines. Show the North-South fault lines. Show the agricultural-commercial fault lines. And most importantly, because I hadn't mentioned it before, show the fault lines of slavery. Madison himself was born into the arms of a slave. His eyes were closed after his death by a slave. He was never for any day of his life not attended to by a slave. And I've got lots and lots of writing-- and it'd be a lecture for another day-- about the complex worldview of a person who is, and unlike Jefferson, not a structural racist, doesn't actually believe that people of African descent are inferior, and yet is fully committed to slavery. He's just as committed to slavery as Jefferson is, while constantly disagreeing with Jefferson's biological and cultural racism. So that's itself a complicated story, and it would be wrong to give a lecture about Madison without at least mentioning that picture. I guess the last thought on that is that the rhetorical structure of constitutionalism is the thing I'm really focused on here. But I think that there is a real structure underneath that enables-- so, OK, here's the argument. I'm going to put it as formally as I can. All states that have functioning small c constitutions have some mechanism where you don't treat the other like a true Schmittian enemy and destroying him. But big C Constitutionalism, the kind where you call it a Constitution and point to it and talk about it a lot, offers one particular mode-- not the only-- but one particular mode for discourse where you can play out a lot of political enmity without actually going over the edge. So thank you. That helped me formulate that better. Yeah. Yaseen. YASEEN: Just based on your description, it seemed as if adversity is needed for the vocalization of some type of change. But what I didn't actually hear was your own personal perception of the masquerade theory. Because in my opinion, I'm thinking betrayal, deception, like even the little game of Madison responding to Washington's address, and that kind of back-and-forth. As a member of the public and citizen in this country, I look back at our history, and I almost feel like I'm being orchestrated by those kind of political [? stages ?]. So what is your personal opinion of this masquerade theory, as it really isn't just a much ado about nothing? NOAH FELDMAN: Yeah, that's an amazing question, Yaseen. Thank you. That's an amazing question. And it's one that I had hoped to avoid answering, so I appreciate your raising it. When I was a student, one of the teachers I loved the most was the late Isadore Twersky, who was a professor of Jewish Studies, Littauer Professor of Jewish Studies for many decades at Harvard. And he once wrote a book review of a very famous essay by Leo Strauss, which was purported to reveal a secret theory for reading the works of Moses Maimonides. The theory is called esotericism. It's the idea that if you read the text carefully enough, you can discover secrets that are hidden in there. And Twersky said in this review in the journal Speculum-- I think I've got it exactly right-- that there are secrets in The Guide for the Perplexed-- which is Maimonides's magnum opus-- a philosophy is certain. Their nature, however, remains a mystery. So you kind of want to say in response to Yaseen's question, well, can't we talk about something else? But that wouldn't be fair. So let me try. Political structures that involve masquerade do have one important elitist feature, and that is that some of the people inside the game know that they're a masquerade. Not everybody knows it all the time, but some of the people know that they're a masquerade. Right? On the other hand, a feature of Constitutionalism with a big C is that everyone in the polity can look at the original documents, look at the original agreement, and see for himself or herself how far we've gone from that original agreement. So I would defy any American to read the Constitution, and look at our government, and think, that that's what we're doing. Right? And when someone says, look at the document, now look at what we're doing-- I'm thinking here of Elaine Scarry, who's here, who's just written-- just published-- well, she's wrote over time and has just published a spectacular book called Thermonuclear Monarchy, which everybody should read, which I heard her lecture on when I was a law student. And the thrust of the book, if I can grossly oversimplify it, is to say, look at our constitutional structure, and look at the republican values that give rise to our Constitution, and now look at what we've got. It's nothing like what's in the Constitution. What we have is a monarchy, says Elaine. She says, Hamilton won. I mean, Elaine is completely correct about this. But anyone who would read it and read Elaine's book would be able to see that. That's public. That's not a secret. So that means that the fact that our system is, in fact, not driven by the structure of the Constitution as written is an open secret. We all know it. And that makes it more justifiable and less elitist. And it's a reason to feel less manipulated. Or maybe it's a reason to feel self-manipulated, which might be a worse feeling rather than a better feeling. But it's a different kind of feeling at least. It's a more agentic feeling. I hate that word, but it's a feeling that makes you feel like more of an agent. Because you're deceiving yourself. We're all deceiving ourselves. Now, you might say deceiving yourself is bad. I mean, that's a hard question. Right, Hans? I mean, from a psychoanalytic perspective, you need a little self-deception. You don't want to have too much, but if you had no self-deception, I mean, you're finished. And Yaseen, you and I have been working on this profound question of what happened in Egypt over the last few years. And there you have an instance where, at certain points in public sphere, there's no self-deception. There's no masquerade. Right? No masquerade. People on the streets, very primal form of political communication. And you have some elections, and you have people trying to draft constitutions. And the people go back to the street again. And there goes the government. No self-deception. Total disaster. They needed a little self-deception. They needed people to say, well, we've just elected this government, and it's enacted a constitution, and we don't like the constitution. So let's go and tell them that they've violated the constitution and be really angry about it. And let's go home, and hold elections, and vote them out of office. Instead, the people got up and said, you are illegitimate. It's true you passed a constitution, but we don't care. You are the enemy. Off with you. Out you go. At which point, the army was only too willing to come in and say, good point. Let's jail those people. Right? This comes back to Scott's point as well, about the nature of the functional value of the masquerade. Now, I'm not claiming that it's the absence of constitutional rhetoric that determines the outcome in Egypt. No, that's the underlying balance of power that determines it. But I'm noticing that in a state where people are trying to achieve the constitutional masquerade and failing, you've lost a certain form of discursive rhetoric, where you could call the other side the enemy and keep on going. In Tunisia, maybe they've achieved that. They've just ratified a constitution. And now they're in the process of-- they just held the first election. They're going to hold another one. At least, they're going to try to run and effectuate politics using this discursive form. They think it's worth giving it a try. And you know, in [INAUDIBLE], maybe they'll have some luck with it. We know Egypt didn't. So yeah, there's some deception, but I think my bottom line is it's more of a collective self-deception than a deception by elites of citizens. And so it's of a different quality, a different character. Professor Charles Fried. CHARLES FRIED: What is-- or what was the small c constitution in our 1930s when Roosevelt was being treated with the same epithets that Madison was hurling, and yet we didn't fall apart, as compared to Germany in the 1930s, where they had no small c constitution? They had a big C Constitution but no small c. What does this small c constitution consist of? NOAH FELDMAN: Well, I think that, as a general matter, before getting into the comparison of the '30s in Weimar and the '30s in the United States, that the small c constitution consists of the documents, the values, the principles, the ideals, and the institutions that together justify and provide the blueprint for the operation of political authority. That's not my definition; that's a loosely-tweaked version of Bolingbrook's definition of a small c constitution, writing in the 1730s. And I think it's pretty darn good. Notice that it includes the actual exercise of power, but it also includes this discursive component I'm talking about, the way people talk about power, the way they express that power, and most importantly, the way they legitimate that form of power. Now to your example. There were moments, like the first week of Roosevelt's presidency, which, in March of 1933, corresponded, and probably enough, to Hitler's rise to power within just a few weeks, in which Roosevelt's actions could have been perceived, and were perceived by some, as comparably extra-constitutional. Now, I'm thinking in particular of the confiscation of gold in the United States and the abrogation of contracts that private individuals had made either with one another or with the government to avoid precisely this scenario where gold was confiscated and the gold standard was removed. And the Supreme Court-- cough, cough-- ratifies these things. And the stock market liked them. I think, Jerry, there's some event studies suggesting this, that the market liked them. And from the bench, Justice McReynolds, another nasty figure of history, though, nowhere near as nasty as Carl Schmitt-- well, I don't know about that-- but not as nasty as Carl Schmitt, said in the oral argument from the bench that Roosevelt was Caesar. They subsequently went and struck it from the written transcript, so it's a little hard to find, but there's contemporary newspaper evidence that he said it. And by calling him Caesar, he was comparing him to Hitler and knew exactly that that was the intent of what he was saying. And that view was not crazy from a certain kind of constitutional standpoint. What was the difference? It would be easy and too cheap to say that it was broad public support for Roosevelt in the election, because Hitler had also achieved broad public support in the election. To me, the crucial question is, what constraints did Roosevelt believe he did operate under? We know what constrains he didn't think he operated under. He thought he could get away with the gold confiscations, because he thought the markets would back him. He thought he could get away with the First New Deal, which he didn't get away with and the Supreme Court struck it down. But politically, he thought he would get away with it, again, without destroying the Republican Party. He believed that he needed not the kind of consensus that would enable him to block him from governing. He wanted to do that. But he thought he needed enough consensus from the other political party that their reaction would not be revolutionary. The other side accused him of being-- as I just said-- of being Caesar. They talked the talk of enmity. They didn't take the actions that would have corresponded to that. Given that political culture and given that context in which Roosevelt knew he could keep the opposition, he had no need, one might even say, to seek to destroy the opposition utterly. Not so Hitler. Hitler had an opposition that would have, on its far left, happily seen his destruction and knew that he was the enemy. He had a weak liberal middle that was unsure of how to act. And he judged that he did not need to preserve the other side. In fact, he had the capacity, the opportunity, and ultimately the desire to eliminate it. I think he read his political situation correctly. Hitler read his political situation correctly in that sense. The conditions for that kind of constitutional consensus were not present. And so again, I would never say that it was the US Constitution, big C, that was the difference. And your question didn't imply that I would. I think that the small c constitution, including the balance of forces in the society, was the difference. It was Roosevelt's confidence that even his relatively radical policies would not alienate the other side so far that it would go outside the political structure. And therefore, his capacity not to seek to destroy it utterly. Again, thank you all very much. [APPLAUSE] MARTHA MINOW: I hope you will all join us for a reception. But one more thing needs to be done. Would you please sit? NOAH FELDMAN: I may sit now, thank you. [APPLAUSE]

Channel: Harvard Law School

Views: 18,157

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Keywords: Harvard Law School, Noah Feldman, Martha Minow

Id: o9V7M9Pa578

Length: 88min 0sec (5280 seconds)

Published: Mon Nov 24 2014