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0:00
(muffled chatter)
0:14
- All right. Hi, everyone.
0:18
All right, we're going to get started.
0:23
(laughs) It's great to be in person in a way where you have to wait for the room to quiet. It's such a foreign experience. So welcome, everyone. I'm Julie Rose, an associate professor in the Department of Government, and I'm really so pleased to be with all of you for the Rockefeller Center for Public Policy and the Social Sciences' first in-person event since March of 2020. So it's been a long time and it's really a great pleasure to be assembled altogether again
0:53
for this occasion in particular. And welcome also to those of you who are joining on the live stream. I think we've got another good crowd there. It's really great for us to continue using this remote learning trick that we've learned over the past year and a half. All right, so today's event is co-sponsored by the Rockefeller Center, which is a vital institution at Dartmouth featuring interdisciplinary engagement with policy topics, and also by the Dartmouth Political Union,
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which is a nonpartisan student organization that was founded in 2018 to provide space for respectful political discourse on campus. And the talk today is also part of the Legal Studies Faculty Group's events series for the year, which is convened for this year by myself and Professor Herschel Nachlis. So we're gathered here today to observe Constitution Day, which marks the signing of the United States Constitution on September 17th, and this is an occasion
1:57
for which all federally funded educational institutions are required to provide an educational program. Today's event then is fulfilling this obligation, but this is one of those very happy circumstances where the obligation is entirely superfluous because we are really much more importantly honored and delighted to be welcoming Dartmouth's own Professor Sonu Bedi to give us a talk today. So Professor Bedi is the professor of government.
2:32
He has a lot of titles, so. Is (laughs) also the Joel Parker 1811 professor in law and political science and the Hans Class of '80 and Kate Morris director of the Ethics Institute. Professor Bedi's areas of research span constitutional law and contemporary political theory, and as the Dartmouth article on his appointment as the director of the Ethics Institute noted in a sentence that I would've said as an undergraduate with a great deal of awe, he has six degrees,
3:02
including a JD from Harvard Law School and a PhD from Yale University. Professor Bedi is the author of four books, including "Rejecting Rights," "Beyond Race, Sex, and Sexual Orientation," "Legal Equality Without Identity," and most recently also "Private Racism," an excellent book I'd recommend to all of you,
3:26
as well as many prominent legal and political philosophy articles and many law review articles. He has very impressively twice won the Jerome Goldstein Award for Distinguished Teaching, chosen by the classes of 2014 and the class of 2017, and he teaches popular courses on civil liberties, constitutional law, development and theory, and a seminar on contemporary readings on justice. Today, we have the treat of all being Professor Bedi's students for his talk, which is especially timely,
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and I suspect is also going to be encouraging, entitled "The Science of the Constitution: The Supreme Court and a Practice of Disagreement." It's a real pleasure to have Professor Bedi as a colleague and as a friend, and it's a real pleasure to welcome him up today. Thank you. (audience applauds)
4:23
- Great. Thanks so much. Thanks Julie. Let me say Professor Rose is a colleague in political theory, and it's really wonderful to have her as a colleague. And so there's something that she doesn't know that her work has been really helpful in seeing something more clearly that I did not see before. So some of you know I worked as a lawyer very briefly in a law firm, all too briefly, and now I see what it was about working in a law firm that just didn't sit well, and that was,
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although there are a lot of monetary resources that go with it, one doesn't have a lot of free time. Temporal resources are something that you aren't able to enjoy, and Professor Rose has written a fabulous book called "Free Time," making the case that free time is an issue of justice. And so I see it now, and that's what I tell students. And I also want to thank Professor Nachlis, who's our co-convener of our Legal Studies Group and has brought some great speakers last year
5:24
and look forward to the speakers this year. Also want to thank Joanne Blais and Bob Coates for putting this event together, and also thank you all for being here. And I know there's folks on the live stream here, too. I really appreciate it. I know the weather's out nice outside and you're like, "Okay, what are we going to do here," right? What are we going to do here? Well, we're going to talk about the science of the Constitution, and in one way, it makes sense. We're all wearing masks, right?
5:51
We're all wearing surgical masks, so you know what? It's a fit. Okay. What is it that we're going to do today? So I like to choose your own adventure. Does anyone remember there were these books, choose your own adventure, right? Okay yeah. I'm looking at like Jason and Ron. You know. But the students are like, "What?" Well, there were these books, and you can choose what you wanted to do, what's the adventure. Okay, so some of you may say Supreme Court justice. How many of here would be like,
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"Ooh, that would be cool to be"? That's okay. Yeah, sweet, right. Supreme Court justice would be cool. What about a constitutional advocate? You're up in court arguing cases before the Supreme Court.
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Okay. That's pretty cool. Sometimes folks that are constitutional advocates become Supreme Court justices, right? What about a president or senator?
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Okay, that's pretty good. You can be a politician. Well, you can see that none of those are the things we're going to do, right? So if this is what, you're like, "Oh," those are not the adventures, okay? Well what about this, Democrat or Republican, okay? We may all raise our hand depending on which of that adventure or which viewpoint one is going to take. What I want to do for this particular talk, the adventure is ta da! We're going to be constitutional scientists, okay?
7:08
And so how many people say, "Oh, I would've raised my hand"? Right. Okay. Well, that's part of the reason why I'm doing this talk because I have found that when discussing the Constitution, oftentimes, the adventure that is chosen is what it would be like, a Supreme Court justice or a constitutional advocate or what it's like to look at something as a Democrat or a Republican. That is not what we are going to be doing here. We are going to be approaching it as scientists,
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so let's put on our masks, which, of course, are already on, and so that's going to be the adventure today.
7:44
How many of you are first year students, out of curiosity? Wonderful great right. I know that you all were part of the shared academic experience, and so you learned about the honor code. One of the things about the honor code is your references, right? When you'd write a paper, you'd write the references, and so let me tell you the references for this talk, okay? There are some references for this talk. Well, my class, Government 66 in Spring 2020, these are actually the courses
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that went over Zoom during COVID. It was Government 66. Government 66, again, I taught later in fall and Government 67 and Spring 2021. Now these courses, I have some students here that were in those courses. Okay. Well, yeah. So they may be on the live stream, right? Or in fact, it's nice that some of this will be very familiar to them. So this comes out of discussions I've had with students in class in putting together a curriculum over Zoom. And so actually, it has advanced learning in a way
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that I didn't even foresee prior to it. So this talk would not have been possible without having had those courses and not having had the students in those courses, and I would say this. I've said this before that something that, although this is "The Practice of Disagreement," let me tell you what we all faculty agree on. We agree that we have wonderful students and that students advance our scholarship, and I want you to see that this is actually what's going to be happening here.
9:13
Not just students.
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It's wonderful to be a member of the Department of Government. Jason is here as a member, also director of Rockefeller Center. Obviously you met Professor Rose. And so the Department of Government is in the social sciences division, and so as a social scientist, the idea that one approaches issues looking at it in terms of the science of it is something that I'm thankful to have colleagues in the Department of Government. And also, I took a Greek Isle alumni sea cruise in November 2019.
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Can you imagine it? You're thinking like, "A cruise?"
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Wow, totally decadent, right?
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And so in that cruise, there was some talk about this. It wasn't totally formed. So what I want you to see is part of this is a result of, and this is just another aspect of it. This is a larger book project on the science of the Constitution, and so it's a pleasure. I'm really thankful to have the Rockefeller Center here to not only presenting Constitution Day, to present of the work here. Okay. So with that, here's an outline. You have an outline and there's a bunch of pictures here.
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Maybe some pictures you know, some pictures you don't, and so we're going to see how all these pictures fit in, okay? So that's like the picture outline of the talk. The other reason is is that it is important to view whatever that this intellectual exercise here is also fun. There is no reason that learning is not fun. In fact, that's what's so nice about being at Dartmouth and one of the wonderful reasons why we faculty like teaching here. Okay, so outline. So scientist of the Constitution.
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Okay. This is Frederick Douglass, okay? Many of you know who Frederick Douglass is. Okay. So I'm not a historian. I'm not an expert on Frederick Douglass, but just to give you an idea, Frederick Douglass was born in February 1818.
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He was an African-American abolitionist, an orator, a newspaper publisher. He's famous for his first autobiography narrative, "The Life of Frederick Douglass: An American Slave," written by himself. He escaped from slavery in 1838. He was only 20 years old, okay? It's a sobering fact. He became the first black US marshal, and, in fact, I found this out, was the most photographed American man of the 19th century. So there are a lot of ways in which Frederick Douglass
11:48
is important to African-American political thought. He's important as a historical figure, but there is something else that I want to draw attention to, and that I would see him as the first scientist of the Constitution, the first political scientist of the Constitution. And so what do I mean by that? He gave a speech in 1860. So he was 42 years old, and he gave a speech, and the speech was before the Scottish Anti-slavery Society in Glasgow, Scotland on March 26th.
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And what he said in that speech is that the American Constitution is an anti-slavery document, okay? Now this is prior to the Civil War, prior to the Reconstruction amendments. Douglass argued and said that the Constitution was an anti-slavery document. So this is the speech that we read in class, and this is the speech that frames the methodology not only in this lecture but the methodology of how I approach the study of the Constitution.
12:52
So what do I mean then by the science of the Constitution? What is Douglass's methodology, okay? What is Douglass his methodology? So now I'm going to just read you some parts of this speech, and I want you to see how that would resonate today. So in giving this speech, Douglass says, it's a quote, "Thus, for instance, the American government and the American Constitution are spoken of in a manner which would naturally lead the hero to believe
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that one is identical with the other when the truth is they are distinct and character as is a ship and a compass. The one may point right and the other steer wrong. A chart is one thing. The course of the vessel is another. The Constitution may be right. The government is wrong. If the government has been governed by mean, sorted, and wicked passions, it does not follow that the Constitution is mean, sorted, and wicked." He goes on to say, "Again, it should be born in mind
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that the mere text and only the text and not any commentaries or creeds written by those who wish to give the text a meaning apart from its plain reading was adopted as the Constitution of the United States." And by the way, to mention that the Constitution went into effect tomorrow, September 21, and the 9th state that ratified it was? Take a guess. State of New Hampshire, right. And so he says, "It should also be born in mind that the intentions of the framers of those
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who framed the Constitution, be they good or bad, for slavery or against slavery, are so respected so far and so far only as we find those intentions plainly stated in the Constitution." He goes on to say, "It would be the wildest of absurdities and lead to endless confusion and mischiefs if instead of looking to the written paper itself for its meaning, it were attempted to make us search it out if this in the secret motives and dishonest intentions
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of some of the men who took part in writing it." He goes on, "These debates were purposely kept out of view in order that the people should adopt not the secret motives or expressed intentions of any body but the simple text of the paper itself. These debates form no part of the original agreement. I repeat, the paper itself and only the paper itself with its own plain written purposes, the Constitution, it must stand or fall, flourish or fade on its own individual
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and self-declared character and objects. Again, where would be the advantage of a written Constitution if instead of seeking its meaning and its words, we had to seek them in the secret intentions of individuals who may have had something to do with writing the paper? What will the people of America 100 years hence care about the intentions of those who wrote the Constitution? These men are already gone from us and, in the course of nature, were expected to go from us.
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They were for a generation, but the Constitution is for ages." And that's why, if you haven't picked it up, you pick up your pocket Constitution when you came through this door. This is how we begin as scientists of the Constitution, and that methodology is a methodology that Douglass makes clear in this speech. And so this methodology is not only that's going to frame this lecture. This is what I mean by the science of the Constitution. What I mean on one hand is the American government
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or what the framers thoughts and feelings were, that is not what Douglass is saying is a science of the Constitution but rather the document itself. Let's look at the document and see what it says, and as a scientist, that's noise, right? We all know that's noise. And so if you take a course in statistics, you're like, "Noise, we're not studying noise." And so this talk is studying the science of the text beginning with the text of the Constitution. So that's the methodology that centers
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not only this lecture but also the course. And I think that's really interesting because you have here an African-American who was enslaved, escaped slavery, making a speech that the Constitution is an anti-slavery document. I'm going to use that methodology in studying the text, that's what this presentation is going to draw on, and that's what I draw on in class. Okay, so how do we then translate this methodology today? That's Douglass's methodology today. Well, okay.
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So if you're looking at it today, we still have the text, no doubt, right? That's why you all got this pocket Constitution. Actually, one thing, this pocket Constitution, you can bring it anywhere. One time I did bring it. I've told students is I brought it on a date, and I was talking to him, and as it turned out, he was a Scalia supporter. And I said, "Oh, well, actually there's a passage in here, and so it's really interesting." Well, there was no second date,
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so don't bring it on a date, okay? But bring it to class. Okay. So how do we understand his methodology today? So we have the text, okay? We also have the Supreme Court, okay? Those are the current members of the Supreme Court. Now what do I say when I say the Supreme Court? What we have is we could study their biographies. That's not what we do in class. We don't read their biographies. Maybe some folks know something about them. What we study are the opinions that they write.
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The opinions are part of the science of the Constitution. The opinions are crucial to understanding what is happening here, okay? To understanding how this document works, okay? We all look and see now, there was a time when now through the internet, anytime there's an opinion, it gets published on the website, and students that take my class, we would read probably 700 pages worth of opinions. That's just the opinions, right? And so, okay. And so the opinions are crucial.
18:36
The opinions are crucial, and so let me play for you something that Justice O'Connor says, okay? So let me do some fancy AV work here. It's really not that fancy, but...
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Okay. So this is Justice O'Connor on the, believe it or not, "Daily Show with Jon Stewart." - Program. We're talking with former Supreme Court justice, Sandra Day O'Connor. We were talking about you mentioned something to me.
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We were talking about the Supreme Court, and they seem very protective over their process. - Yes. - And you were saying one of the reasons you thought that might be. - Well, the Supreme Court is the one branch of government that has written explanations for everything it decides and does. That's pretty impressive. No other branch of government, no member of Congress has to write some written explanation of everything. (audience laughs) - But that is such a good point.
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- Yes, not bad. - But it is. (audience laughs) Things happen that seem inexplicable on the legislative side - That's right. - or on the executive side. - That's right. - And you ask, and no one seems to know how it happened or went down. It's these backroom things that just show up - That's right. - and then they vote on it and you don't know why. - But every member of the court has to have a written explanation. You can join someone else's opinion and say, "I agree with that," and sign it.
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But every justice has signed on to some explanation. That's pretty impressive, I think. - It's very impressive. In some ways, this is going to sound crazy. Do the justices, after doing that job for a while, feel judged, and therefore, is that why they're - Well, I think you - somewhat protective? do feel judged. You do feel judged. You feel let everything you do is under scrutiny of everybody in the country who has an interest in it. They can see it and look at it.
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- Any idiot can like make fun of it on a show. - Correct. - It's just- - And that's why make a joke covered or whatever. - Right, and that's not fair. - No, hardly. But it's the way it works. - Well, if I see somebody doing it, you can be sure - Okay. - I will stop them, as it goes. (audience cheers and applauds) Is there something to when you get to. - Okay, so I encourage you to check this out and to see the rest of it. And so what's interesting here is that
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what Justice O'Connor makes clear is that it's not only that the opinion is central to the science of the Constitution, but the idea is that that the opinion that the Supreme Court is distinctive in offering these opinions, it is the practice of the Supreme Court to write an opinion about some particular issue that reaches, to sign in opinion and to give what Justice O'Connor says, actually, in a case, "a principle justification" for what the Constitution means in their decision, okay?
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Now if you look, when Douglass was making his speech, although the Supreme Court had reached its ascendancy in terms of the idea that the Supreme Court has the final say about what the Constitution means, that itself was a developmental story. So that's why when we take his methodology and apply it today, we have the text, which you all have here, and then you have the opinions.
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That's the data. That's the data here in looking at the science of the Constitution. Okay, so now, if we take this methodology,
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how does a Constitution work, okay? I want to suggest that there are then three features to the Constitution. One is the document arranges and limits public power, okay? So let's take a moment here. By arranging public power by that, it arranges the power between, for example, the federal government and the state government, but it also limits public power. Now, oftentimes, these limits are described as constitutional rights or they're described as constitutional liberties.
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It's in a way more accurate to talk about limits of public power because that's actually what's happening. Think of the Bill of Rights. "Congress shall make no law." That's a limit on what Congress may do. The 14th amendment, "No state shall." That's a limit on what states may do. So the document arranges and limits public power.
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Second, the Supreme Court has the power to say and justify what those arrangements and limits are. Well, that's why we always wait. What's the Supreme Court going to decide, right? What's the Supreme Court going to decide? Now these two features may very well be like, "Okay, yeah." You be like, "Okay, that makes sense, not particularly interesting." Although it's important to see how those two pieces fit with the third piece that's the center of this talk. There is a practice of disagreement
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on the court in exercising this power. This is going to be the crucial feature that often not seen clearly, or so I'm going to suggest, and that's what we are going to be studying, right?
23:55
It's like you have something that we're all looking at it. We're all studying it. So it's like you have the Constitution. That's why you have the text. We can look at it. We can study it as scientists in a way that being objective. We're not looking at it in terms of Democrat or Republican. We're not looking at it in terms of constitutional advocate. We're looking at it like someone would study a volcano. Well, how does a volcano work? Or one would study any, for example, a living thing.
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How does it work? So there is a practice of disagreement on the court in exercising that power, okay? And so what do I mean by that? Okay, let's go to the document, and I want to suggest to you that there are two political philosophies or models of a republic in the document, okay? Oftentimes you hear about different branches of government. You all know the three branches, right? You all know, right? You've learned that. Yeah, okay. What I want to suggest to you, is that,
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in addition to the three branches of government, there are two models of a republic in the document, two political philosophies.
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There is a notion of a traditional republic, and there is a notion of a modern republic. Okay, so what do I mean by that? And again, part of these are descriptions of through discussions with students seeking what language would be the most accurate way of describing it. So this is what the up to date, and so part of what's nice about giving this talk is that seeing is there a way of characterizing that's more accurate. But what do I mean by traditional versus modern?
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A traditional republic, if we go back to the Constitution, it's the arrangements and limits of public power. A traditional republic, the arrangement of power is state centered. Why do I say that's state centered traditional? Because prior to the Constitution, there were the Articles of Confederation. That was the governing document after independence. And in fact, this is why I like this pocket Constitution. This pocket Constitution also has the Articles of Confederation,
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which is the document that proceeded the Constitution. So that was very state centered. So the traditional republic, the arrangement of power's state centered, and also, the limits on powers are rules. I'll come back to that in just a second, just to give you a sense. Te modern republic, the arrangement of power, is nation centered, and the limits on power are standards. So when the Constitution was being ratified, there was a sense in which the older state model, is not going to be good enough,
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so we needed a nation centered. We needed actually a United States, a larger federal government. And so as a result, there is this modern republic. But at the same time, we did not get rid of the traditional republic. In fact, states are the crucial mechanism by which Americans interact on the constitutional level. There is no national referendum. There's nothing in the Constitution that allows individual Americans to act. Americans act through their states,
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whether that means through the electoral college. Even in selecting, obviously, there are representatives and senators that are directly voting for them, but they're voting from the state, right? The senator or the representative. So the traditional republic is one that's the arrangement of power state centered. The modern republic is the arrangement of powers nation centered. We look to the nation. So what do I mean then by limits on powers are rules versus standards?
27:21
Okay, so for example, if you're driving down I-89, it says you can't drive over 65. I sometimes drive over 65. I'll be frank. That's a rule, no driving over 65. A standard would be drive reasonably, okay? So you can imagine that if you're describing something as a rule or a standard, rules are categorical. Rules are very rigid. Standards are not categorical. Standards invite a kind of flexibility. And so if you look at these two republics, you see that these republics aligned
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with an either anti-federalist political philosophy or a federalist political philosophy. So what do I mean by that? The anti-federalists were very committed to a traditional republic, of state centered, okay? That's what they saw is the arrangement, had to always be focused on the state. The federalists were like, "No, the arrangement of power has to be nation centered. We need to move away from this traditional republic. This traditional republic is not going to be conducive
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for the health of the republic."
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And then think of rules versus standard. The one thing that the anti-federalists wanted were a Bill of Rights. They said, "We have to have a Bill of Rights in the document," which are the first 10 amendments to the Constitution that begin, "Congress shall make no law." Well, those are rules. They said, "We need to spell it out exactly what those limits are," whereas the federalists were like, "Oh, we don't need a Bill of Rights. Why do we have to say that Congress may not have the power
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to do something when they wouldn't have to do it anyway?" Well, the idea was that they understood limits on powers as standards. They understood it as standards. And so what I want to suggest to you is that the document, the Constitution, affirms both. It affirms both a traditional republic and a modern republic, okay? And so what does that mean, or how can we understand that? Okay, so if you're looking at the outline, you remember you saw a picture of Frederick Douglass, right?
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So these are two political philosophies or models of a republic. Oh, before I get there, this is McCulloch V Maryland, a very famous case. Justice John Marshall was the first chief justice of the Supreme Court to really establish the Supreme Court as the final arbiter of what the Constitution says, and in that decision, he was a federalist. In that decision, he held that Congress has the implied power to charter a bank. But he said two things that are important here.
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He referenced both the traditional republic. "No political dreamer was ever wild enough to think of breaking down the lines which separate the states and of compounding the American people into one common mass. Of consequence, when they," when he means they, he means that people, "when they act, they act in their states." States are how we Americans interact with the Constitution.
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It's through the states. So that's a reference to the traditional republic. At the same time in that decision, he says, "We must admit, as all must admit, that the powers of the government are limited and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the power it confirms are to be carried into execution,
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which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people." The idea here is he's also referencing the modern republic. The modern republic is nation centered. It has to be able to respond to the exigencies of the time. And so you see in Marshall's opinion both of these, okay? You see both of these. And what I want to suggest to you is because both are within the document, well, there is going to be a practice of disagreement
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with these two models, okay? And how do we see that? Well, you saw the picture of Justice Scalia and Justice Ginsburg. Okay, everyone know who they are, right? One thing, if you ask Democrats who's their favorite, probably pick the one to the right. You ask the Republicans who's our favorite, they'll probably pick the one to the left, okay? What I want to say to you, one thing to know, they're both deceased, but they were the best of friends. They traveled together.
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It wasn't like they were just colleagues. They were friends, right?
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Julia and I have to travel. We have to travel together, right, Julie?
31:44
Actually, that would be fun, wouldn't it? And so they were the best of friends. So part of in researching this, seeing this as a science of the Constitution, the idea was how is it that they're such good friends? How can it be that they're such good friends? In fact, Justice Ginsburg's very project before she got on the court as a constitutional advocate was the idea that gender equality is part of the Equal Protection Clause. What did Scalia say? "No, it's not part of it."
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They disagreed on that. They were friends. What I want to suggest to you is the reason is because both of them personify this practice of disagreement that is a feature of the document, not a bug. So what do I mean by that? Okay, so Scalia famously said, "The Constitution is dead, dead, dead, rather than a living document," okay? What does Ginsburg say? "The Constitution can't be dead! If it's dead, it won't serve society."
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This was a case concerning the Virginia Military Institute. It was an institute in Virginia that only allowed men to enroll, the Supreme Court, Justice Ginsburg, writing the opinion. We read this in class, struck it down, saying that that's unconstitutional under the Equal Protection Clause. And Justice Scalia dissented, and dissent says, "But in my view, the function of this court is to preserve our society's values regarding, among other things, equal protection,
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not to revise them, to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe on our own authority progressively higher degrees." So what did Ginsburg say in that decision? "So a prime part of the history of our Constitution is the story of the extension of constitutional rights and protection to people once ignored and excluded. VMI's story continued as our comprehension of we the people expanded." Well, if you see this,
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this is a notion of a traditional republic, state centered, a focus on rules. There's no rule. The rule has to be up there. I see the Constitution is very clear, and it says equal protection. We have to understand it in its historical context. It had not anything to do with gender. This is an anti-federalist political philosophy that Scalia is drawing on. At the same time, you see Ginsburg talking about a modern republic. A modern republic, the limits are standards.
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It's precisely their standards that allow a living notion of what's going on. And so you see Ginsburg
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exercising this federalist political philosophy. So if you see it this way, then what turns out is justices are, in effect, our political philosophers. They are our philosopher kings or queens, right? And so if you're wondering, "Well, that goes to Professor Rose teaches political ideas," part of political philosophy, when you read Plato's republic, you talk about philosopher kings. So you see the connection here that this is a document of political philosophy,
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and these justices are our political philosophers. And surprise, surprise, they disagree because there are two models of political philosophy that are in the document, that are in the document. Okay. So, okay.
35:06
Oh, let me say one thing here, too. Because I'm saying there's a practice of disagreement is not to say that the Supreme Court justices don't often agree, okay? So for instance, this is from "ABC News." During this last term, they found that 67% of the cases were unanimous or near unanimous.
35:33
There's no reason to over estimate or look at it and suggest that they're always disagreeing. They're oftentimes agreeing. So for example, there was a recent case that they decided that was unanimous where the city of Philadelphia had a system where they allowed private charities and organizations to put kids in foster homes. One of those organizations was a Catholic charity that refused to put children in homes with same sex couples. And so the city of Philadelphia then said,
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"We're not going to contract with you." The California charities brought that to the Supreme Court and said, "This violates the 1st Amendment's Free Exercise Clause, the limit on public power that says you may not infringe the free exercise." And so it was a unanimous opinion that the court said, "This was indeed a violation of the Free Exercise Clause." It was because the city of Philadelphia actually allowed for an exemption in the law but
36:31
did not allow the Catholic charity to avail themselves of that exemption. So one way to read this is that both the idea of the limit or the Free Exercise Clause as either a rule or a standard. Justice Scalia famously wrote the case that said the Free Exercise Clause is a rule, which says no exemptions. You have the other justices saying, "Well, no, there's a standard, and so as a result, we're going to allow exemptions in certain cases." So you could see how both of those could lead
37:01
to disagreement but also could lead to agreement, and so they did lead to agreement in this particular case. Okay, so I don't want you to say that this practice of disagreement doesn't mean that they're not agreeing. It may be that both a traditional republic and a modern republic would come to the same outcome. Okay, so here's the money slide. This is a slide that there was more time spent on than others, right?
37:26
So here's why. Okay, so just this year, actually just last week, Justice Thomas, I don't have this in here because he just spoke at Notre Dame. Earlier in the year, you had Justice Breyer and Justice Amy Barrett is the newest member of the court. They spoke to public audiences about what they do as Supreme court justices, and here's what Justice Barrett said.
37:52
She said that, quote, "Judicial philosophies are not the same as political parties." She said that people were wrong to see the court as a partisan institution. Quote, "To say that the court's reasoning is flawed is different from saying the court is acting in a partisan manner," Barrett said. Quote, "I think we need to evaluate what the court is doing on its own terms."
38:16
Justice Breyer at Harvard Law School said the following. Quote, "We see a growing public suspicion and distrust of all governmental institutions and a gradual change in the way the press understand the judicial institution with journalists routinely affixing labels, such as conservative or liberal to judicial nominees." Justices are not, according to Breyer, quote, "junior level politicians," he said. "Instead," he said, "I believe jurisprudential differences account for most,
38:47
perhaps almost all, judicial disagreements." Well, what are they saying there when they're saying, "We are not partisans"? Remember go back to choose your own adventure. We already said we're not choosing an adventure of Democrat or Republican. We're not choosing an adventure as a politician. We're approaching it as the scientist. So how can we understand then the difference between the political philosophy models that we discussed, traditional republic, modern republic, versus politics?
39:17
This is a fine distinction, but this is a distinction that as all of us are here on masks, it layers. We got to be really careful about it. Make sure that we see this. Okay, so here are some issues. I put them in red or blue, depending on their political valence. Spending on the national military. That's often a Republican talking point. Spending on national social programs, often a Democrat talking point. Favoring a strong commander in chief. Actually, that's a talking point for both,
39:45
depending on who's in office, right? That's why it's both. Access to abortion services. Obviously that's something that's on the left. Access to school choice. That's something that's often said on the right. Or sanctuary states. That's something that is discussed. And by sanctuary states, just so you know what that means, that means states that are not going to cooperate with the federal government to enforce federal immigration policy.
40:10
Voting restrictions. You see that states have been passing voting restrictions. That's on the right. California's high emission standards mandate. So California has such high emission standards for cars that as a result, if you're going to buy a car or sell it in the California market, you have to meet the emission standards because it's such a large part of the market. Obviously, that has an impact on the kind of cars that are produced. At the same time,
40:35
you have Florida has a no mask mandate, right? My folks live in Florida. Actually grew up outside of Tampa.
40:43
You have criminal due process rights, the 4th, 5th, and 6th amendments. This is often sometimes those on the left look to these amendments and those on the right look to the 2nd amendment. Okay. That's a lot of disagreement, a lot of politics, okay?
41:01
So yes, no doubt, those are differences. But what I want to suggest to you is that's different from political philosophy. The political philosophy is the traditional republic where the arrangement of power is state centered and the limits on powers are rules. In fact, all of those on the right draw from this traditional republic. The reason that sanctuary states operate, the reason that California and other states could say, "We're not cooperating with the federal government,"
41:28
is precisely because the traditional republic says, "The arrangement of power is state centered." The reason, for instance, that Florida's no mask mandate, and there is precisely because of a traditional republic, it's state centered, they get to decide what's best for Floridians. If you think of limits on powers are rules, the rules are the ones that are written into the document. This is why those that look to the 2nd Amendment say, "Yes, we got to advance gun rights."
41:53
Those that look to the criminal due process and look to the 4th, 5th, and 6th amendments are also looking to rules and saying, "Look, the rule applies no matter what, a right to an attorney, a right to some kind of due process."
42:07
At the same time, the modern republic, the arrangement of power is nation centered, limits on powers are standards, here, too, you can see both political sides drawing on that republic or that political philosophy. Spending on the national military is something that those on the right often talk about. That's because they're operating in a modern republic that's nation centered.
42:30
Access to abortion services.
42:33
That's a limit on powers are standards. We have to understand a standard, the idea of the standard be that it's like either privacy or however we understand that standard. And so as a result, access to school choice. There's nowhere in the Constitution that says access to school choice. Actually, there was a case in the 20th century where the court ruled in effect that the limit on power here is a standard. So what I'm saying to you is that politics is one thing, okay?
43:00
We can disagree about the politics.
43:05
I'm not a politician, but I understand that we're Democrats and Republicans. This is where the partisan comes in on the right side. But on the left side is the political philosophy is that actually the science of the document. And as it turns out, both republics, both political philosophies are appealed to on either side. That is something to see, and it suggests this disagreement is not a bug but rather a feature of it. So whenever I see this, when you ever see this,
43:35
people are like, (gasps) "Oh no, we're so divided." I see this because this only happens, (laughs) right? The reason they're red and blue states is precisely because there are two political philosophies in the document. And once we see that, we see this practice of disagreement on the Supreme Court in exercising their power to decide what these arrangements and limits are. Some look to an anti-federalist philosophy that sees the arrangement as state centered and the limits on power as rules.
44:06
Very particular. It has to be stated in there, has to be historically grounded. The other side sees the arrangement as nation centered and the limits on public power as standard. So the idea of a standard would be like, well, we got to look at this standard in terms of our contemporary society, what's happening today, and understand what's going on. And so there are these two republics that are basically in the same document. So actually, there was a opera based on Justice Ginsburg
44:35
and Justice Scalia by Derrick Wang. I went to it. It was actually in White River Junction. Did you go to it? Yeah. And so it was quite nice, and the headline is, "We are different, but we are one." And so now I see that what's the one, that's why they were such great friends.
44:54
It fits that they were great friends because of these two political philosophies. Okay, so what do we have then? And this is a final slide, and then we can ask questions. Okay, so if you look at the Preamble to the document, it tells you what the document is for. "We the people of the United States, in order to form a more perfect union," okay? More perfect union is what the document is for. Now what union came before? As you said, it was the Articles of Confederation.
45:23
That was what we read in class. That's what was the document before the Constitution. So what I want to suggest to you is that then there are two forces within the Constitution. On one hand, there is the living document, modern republic that pushes forward. At the same time, there is a dead document, traditional republic force that pushes opposite, backwards. And so when you think of the language, "a more perfect," how can something be more perfect?
45:58
If it's perfect, how do you understand more perfect? I want to suggest that that is the practice of disagreement. It's perfect suggesting, "Oh, nothing to be done. We don't have to do anything more." (audience laughs) And so what is happening is we are always having this balance, and if you would see one of the last pictures was, so, okay.
46:23
So when I was teaching the class last spring, I told the students, the one class, I said I would learn to play the Preamble on the guitar. That went horribly. I couldn't play. It was really bad. So next time I said, "I'm going to build a Lego set." So throughout the course, I was building a Lego set, and I wasn't telling them what it was. And it turned out it was baby Yoda, okay? Not to be confused with the Yoda from "Star Wars," but that's getting into weeds here, right? You're like, "Okay."
46:48
So Yoda always says, "There must be a balance in the force," right? "There must be a balance in the force." I want to suggest to you that this is a balance in the Constitution. Now you may think, "Wait, did the framers know about Yoda?" Well, if you know it, it happened a long time ago in a galaxy far away, presumably before the Constitution was ratified. So who knows, but that's just sci-fi geek stuff to know. But actually versus the difference between that and "Star Trek,"
47:15
because "Star Trek" takes place in the future. "Star Wars" takes place in the past. But the idea here is that you have a balance, and it's this balance I want to suggest to you that this document has been functioning since 1789, the document that we all here, living here in the state of New Hampshire, being the 9th state that ends up ratifying the document tomorrow. And so let me just end with some teaser trailers because this is part of a larger project.
47:42
And so some questions that come out of this methodology that goes back to Douglass is what lives matter according to the Constitution? You'd be surprised to know the answer. I'm actually presenting it at the political science conference next week. The marvel of American federalism and the United Federation of Planets. I love this one, right? Because if you don't know what the United Federation of Planets are,
48:05
you don't know what to say, right? Stare decisis, the Supreme Court versus the presidency, and when the court fails to persuade states. Okay, so I will end it there and happily take your questions, and we may have some questions from the live stream, so. (audience applauds)
48:25
- [Woman] (muffled speaking) any questions, email rockyqanda@dartmouth.edu. - So for those in the live stream, email Rockyqanda@dartmouth.edu, and yeah. And so don't be shy, students.
48:41
Yes, please. Wonderful. - [Man] Shall I walk to the microphone, or. - Yes. - Yeah, that would be great because then they can put it on the live stream and.
48:51
- Oh, is this thing on? Is that better? - Oh, yeah. That works. - If you'll excuse me. I just was curious if you could talk briefly a little bit more about the opening lines by Frederick Douglass because as the presentation was going, I know we included Supreme Court opinion as part of the science of the Constitution,
49:11
but it certainly seems like that could go both ways in that Frederick Douglass or those that sympathize with him could've decided that the Supreme Court themselves are part of the people steering the ship and could very well lead it astray. - So that's good, and so part of what to see is that the nature of the Supreme Court as having the final say about what these arrangements and limits of public power are was maybe not as settled back then as it is now,
49:39
and so part of that is that that is true. So part of the one way to consider is why is it that it turns out that the Supreme Court is the one that has this power of the word? And one way to view it as if you look at it, you see that the president has the power of the sword, Congress has a power of the purse, and so then the Supreme Court has this power to persuade, in effect, this power of saying what the Constitution is. And so in one sense, that wasn't as settled, but that is settled now.
50:08
That's why, oftentimes, the nominees, there's such a fight, let's say, political fight over them because everyone sees the Supreme Court as having the final say about the Constitution, even though it is true that that's not necessarily written in the document. And so in that sense, it is taking Douglas's methodology and applying it today.
50:34
- [Julie] While others are thinking about questions, - Yeah, please. - and I think some coming in from the livestream. I wanted to take the bait and ask the what lives matter according to the Constitution questions if you want to tell us a bit about a preview. - Yeah, so I'm giving a talk next political science conference, and so the question of what lives matter according to the Constitution, you often have this political seemingly division between on one hand black lives matter,
51:02
on the other hand, all lives matter. Well, if you look at the Constitution, and by Constitution, you look at the science of it, including what the court has said about it, the 13th Amendment not only abolishes slavery, but the Supreme Court says that it endows Congress with the power to end the relics, the badges and incidents of slavery. And so in fact, what the 13th Amendment and scholars have actually also worked this out that the 13th Amendment says black lives matter precisely
51:29
because there was a time when they did not matter, and the 13th Amendment makes clear that Congress has the power to end the badges and incidents of slavery, which would obviously mean that African-Americans are ones that it's precisely seeking to ensure the equality of African-Americans. At the same time, the 14th Amendment's Equal Protection Clause, according to the court, says that no state shall discriminate on the basis of race, sex, sexual orientation, or nationality, so all lives matter,
52:01
regardless of those attributes. So what you really see is the 13th Amendment and the 14th Amendment, both saying on one hand, one says, "Black lives matter," and the other one says, "All lives matter." And actually, you could see these as two kinds of ideas of racial justice, the 13th Amendment looking to our actual society and the idea that there was a historical fact of slavery that has to be accounted for, and at the same time, the 14th Amendment that looks to an ideal society and says,
52:26
"In an ideal society, there wouldn't be this kind of discrimination." Thanks, Julie. You took the bait, see? (audience laughs) - I had a quick question. I think an important outcome of this deliberation and disagreement is the speed at which decisions are made in the government, which is often really slow. And so I was curious if you could talk a bit about the dichotomy between maybe these decisions should be very slow to come to the best decision, or sometimes they're made too slowly,
52:52
and if this should be remedied or if you think that's how the government should be running right now. - Okay, so that's a good question. So one way to look at Supreme Court decisions is Supreme Court decisions are often very slow, right? Because not only does the case have to first be litigated in lower court. It has to come up for appeal. There are arguments. There are briefs that are submitted. It takes the court a long time to decide. Now this is in contrast to what's happened recently
53:20
is what's called the shadow docket where the Supreme Court has decided cases. They're not actually deciding the merits of the case, but they're deciding emergency orders. And there's a sense that we don't want to see those, actually, those are the ones that are often quick, right? They're just happening without the very briefing and the very arguments that go with the importance of the opinion. So my sense is that it's precisely because of the Supreme Court takes time
53:49
to deliver its opinion that is a way to exercise this power, to persuade this power, to say what the Constitution is is why these decisions are so impactful. When that is not happening, then there's going to be a way in which that's not going to advance that.
54:05
Please.
54:09
- [Woman At Microphone] So I was just going to ask. Justice Breyer in his upcoming book that just came out, he wrote in his prologue that he was asked by the chief justice of Ghana why the American public still continues to believe in the Supreme Court and continues to follow its decisions. So I was curious and wanting to pose that question to you. What qualities of the Supreme Court do you think make it such a lasting institution, and in the wake of a lot of, I guess,
54:36
discontent about the Supreme Court, do you think there's a future where people don't buy into the Supreme Court? - So this is a good question. So I think one thing that helps, the Supreme Court doesn't have televised. They don't allow television. They don't allow to see the oral arguments because the idea being is that it's not about a soundbite. It's about the principle justification. It's about understanding the implications of either looking at the issue through the eyes
55:03
or the political philosophy of a traditional versus a modern republic that was political philosophies, and so they're not just have them televised. So there's a sense in which that it advances the role of the court here, also the fact the court is often secret. It's not so much that the court is advertising what's happening, and so there's also a way in which Supreme Court,
55:27
they wear these black robes. There's only nine of 'em. They sit for life. They're not subject to election, and so there's a way in which there's a kind of academic tenure. So I view a very synergy between, on one hand, a justice and, on the other hand, a scholar, a political philosopher, right? Julie's a political, right? And so there's a way in which, just like academic freedom for those of you who are in that shared academic experience, you know tenure allows scholars to engage
56:01
in subjects and issues without any kind of constraints. And so in a similar way, you have the Supreme Court engaging and looking at it and saying, "Okay, how are we going to decide this issue?" And so part of it is that that is done in a way that advances the mystique of the court. It's a mystique, right? There's a mystique. That's why I always ask students, "How many of you would want to be a Supreme Court justice?" More people raise their hand to be a Supreme Court justice
56:29
than they do to be president or senator, by the way, in general, right? So part of it is there something here, right?
56:39
- [Man] Thanks a lot, Sonu. I appreciate it. Is there any room for judicial pragmatism in your argument? Where would that fall? - Yeah, that's good. I would say that judicial pragmatism would be a kind of understanding of the limits on public power as standards. In some way, when we're approaching a question about whether what a particular limit means, whether it's free exercise or freedom of speech or equal protection, if we adopt a standard view, one way to see that is that standard
57:07
would incorporate a pragmatic calculus that a rule would say, "Well, you got to go one or the other." And so there's a way in which if we just had rules, it would be so rigid that the document would break. If we just had standards, the document would be so soft, it wouldn't have the strength it does. And so what's interesting is Justice Ginsburg, in that decision, the VMI decision, when she wrote her opinion, she said, this was at VMI like, I don't know, maybe 20 years later.
57:41
She said, "Yeah, well, when Scalia wrote his dissent, he said," I'm paraphrasing what she said. She said, "He said, 'Ruth, here's my dissent, my penultimate descent,'" and she goes, "His dissent hit all the soft spots of my opinion, so then I went back and revised it to make them." And so in one way, you see that there is this rule versus standard.
58:05
And so I would say pragmatism comes in there, and that is a way to see that as a kind of balance.
58:16
Yeah please Herschel. - [Herschel] Thanks for a great talk.
58:21
Ooh. I've always wanted to ask you, and this goes back to Justice Barrett's recent comments about how the court is not composed of JV politicians. And so the claim is that they're not politicians and they're just embracing diverse judicial philosophies. But of course, then the question is from where do these judicial philosophies derive? And it's really a chicken and egg question, but one does have to have their own answer to this. Are the judicial philosophies prior
58:48
to a set of political commitments? Are they a derivation of them but in the language of loss such that we can claim that they're still not politicians? But how do you thread this needle? - This is Professor Nachlis, by the way.
58:59
I know he's teaching to this, and so that's such a wonderful question. Thank you, Herschel. So one way is that to see that these political philosophies in some way are arising from the text of the document, that they're arising from the commitments that were made in writing and drafting the document. So what you have here is there were federalists and there were anti-federalists. So when there was a vote up and down on the Constitution, both of those groups were voting.
59:29
Now, maybe it turned out that some of the anti-federalists, they ended up losing out, but by making sure that there was a Bill of Rights, by placing in the document this traditional republic in the role of states. And so one way to see it is that the political philosophies are baked into the text, but then they are elaborated as justices confront new issues that may arise. And so the idea is that the political philosophies came first because they're part of the document,
59:58
and now the question becomes, how is it that justices end up seeing, how do we have, if you'd ask, federalist justices and anti-federalist justices? And so part of it is that, well, think of the United States. We are a very litigious country. We sue all the time, right? There's a sense in which the rule of law is very important in a way to Americans that are always like, "We'll leave it to the court to decide." It's always looking to the court to decide. And so there's a sense in which,
1:00:26
as law schools trained lawyers and then those folks become justices, that you have, even within scholarly work, you have this, on one hand, commitment to a traditional republic where the limits are rules. The idea is that we have to follow strictly what the Bill of Rights says versus the limits on standards. And so the idea here is that it comes out of the initial document is what I would say, but that's an excellent question, Herschel. Thank you.
1:00:58
We have time for one more, Joanne? - Yeah. - Yeah. - [Joanne] I think this probably should be the last one. - Okay. Make it good. - Well, - That's a lot of pressure. Professor Nachlis set me up well, so hopefully. - Good. - It's a slight followup. Even if we do assume that these political philosophies are prior to any political commitments, there's the question of which political philosophies get pushed up to the Supreme Court. And given the role that politics has placed there,
1:01:26
for example, the federalist society and the other societies on the left, why should we believe that the Constitution will hold America's divided parts together rather than America's political divide effectively poisoning the Constitution? - So say that last part, the question. - Yes. Given the political nature sometimes of Supreme Court appointments, why should the assumption be that the Constitution will be able to bridge the divide rather than the petty politics of the everyday effectively
1:01:57
wounding the Constitution itself? - So sometimes there's a sense in which there is a hypothetical of like what would happen if? And so what I would say is that as of now, the Constitution is functioning and so is the Supreme Court precisely in this way. And so sometimes, the political theater may very well take a prominent stage just because for various reasons, or it could be precisely to, for a political calculus, if you're seeking to get the vote out.
1:02:35
There's a way in which it's describing what's happening as accurately as possible and which would say that right now, right? Now what you're saying, like, "Well, is there a sense in maybe 20 years from now, the court is somehow illegitimate?" Now what's interesting is I will say this one question at the end, when the court fails to persuade states, we can see, are there cases in which the court has, for instance, if you look at the issue of abortion,
1:03:07
the court has constantly said at some point one way or another that there is this limit on what states may do in order to ensure this fundamental liberty. But states, and look at the Texas law, the most recent Texas law, it has not persuaded states. And so part of it is is that there is this way in which the Supreme Court is not a separate institution that is independent of the other actors in the Constitution,
1:03:37
the other actors, for example, being not only the president, the Congress, and the executive branch, but also states.
1:03:48
That's what would seem if it turned out that there were states that simply were not complying with the Supreme Court or there was some. Well, then you may raise this. That's what I see you raising that kind of question. We'll see. I don't see it as likely in a way, in part because if you go back to this slide, what is nice is that this may not have been the case historically. So for example, federalism and this notion of a traditional republic was always the province,
1:04:17
in a way, of conservatives and not liberals, in part precisely because of the Trump presidency. You have a kind of acknowledgement that this traditional republic can actually advance progressive goals, right? So for example, Heather Gerken, who's dean of Yale Law School, she came to give a talk here a couple of years ago and written a piece on progressive federalism. And so as long as you have both sides appealing to both republics, both political philosophies,
1:04:46
there's a sense in that that concern, in a way, may be less likely to happen, but point well taken.
1:05:00
Good. Okay, well, why don't we end it there? I want to thank you all for your questions and thank you for coming. (audience applauds)
1:05:13
(muffled chatter)
1:05:18
- [Julie] If you're joining us for dinner, if you're a student who's joining us for dinner, head to the Hitchcock Tent. We'll meet you there with the food.
1:05:32
(man laughs) - [Sonu] Oh, I'm glad you could make it, Jason, yeah.
1:05:38
Oh, good. Oh, good. No, I'm part of this new project, so I'd love to hear, yeah.
1:05:48
- [Woman] Really don't want to talk about it.
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