Children’s Book Talk: Fault Lines in the Constitution
>>Good morning! Welcome to the National Archives
for those here in the audience and those online. To our Fault Lines in the Constitution program we
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Now I am honored to introduce Cynthia and Sanford Levinson a faculty member of the University of Texas Law School since 1980. a member of the government department , UT, Austin since 1984, author and editor of 15 books on the Constitution and other related topics he is a member of the American Academy of Arts and sciences received a Lifetime Achievement
Award for the political science association in 2010. He has written for a number of other
general magazines and newspapers. Cynthia Levinson former teacher, education consultant and a researcher her multi award‑winning
nonfiction books for young readers include: We’ve Got aJ ob on the Birmingham Children’s March, Watch out for Flying Kids. How Kids Confront Conflict. The Youngest Marcher, the young civil rights activist. In doing research for her books, she has ridden around in police cars , fallen off trapezes, she interviewed a presidential candidate but won’t tell us which one. With forces combined they quoteFault Lines in the Constitution,
the Framers, Their Fights and Flaws that Affect Us Today. Please give us a nice warm welcome.
(APPLAUSE)>>To the National Archives ‑‑ thank
you to the National Archives for allowing us for coming today we are excited to be here.
Thank you to our publisher from Peach Tree Publishers who published this book to Cathy
Lanware our wonderful editor who made the book what it is. Here is the cover of the
book (indicating). And we would like to know has anyone ever said to you: You could grow
up to the President of the United States! Anybody could. If so raise your hand. Oh,
okay I see a couple of people raise their hand. A lot of people say, anybody can grow
up to be President of the United States and that’s one of the benefits of our system.
But there are a few problems. It’s possible that not everybody can, not everybody who
lives here can grow up to the President of the United States. Because there are certain
requirements in the Constitution. For instance, you have to be 35 years, are you 35 years
old? Not yet? You will be. Check you could be 35 years old and run for president let’s
try another one. You have to have lived in the United States for 14 years. Probably
by the time you are 35 you will have lived here for 14 years right? That’s good. But
we have a question here: Where is the United States? Sandy, would you like to bring up that question?
>>One of the things that we talk about in the book is Puerto Rico. Because a truly
obscure clause of the Constitution says that you have to have lived within the United States
for 14 years before you can run for president. So, there are a number of exotic questions
what if for example, you have lived abroad working for a multi‑national corporation
or there are all sorts of things that could take you abroad. What if you are born in Puerto Rico
is it within the United States or territory. United States. I teach law this could be
a subject of a full‑hour discussion which it’s not going to be.
(LAUGHTER)>> But you should know it’s really an open
question whether any of the American citizens in Puerto Rico and everybody born there is
an American citizen as it is happening they are moving from Puerto Rico to Florida in
the aftermath of the hurricane, they are eligible if they live in Florida whether living in
Puerto Rico would qualify constitutionally might turn out to be important some day. Imagine
somebody born and raised and living in Puerto Rico to the age of 25. The person moves to the
main land at the age of 25, is a spectacular success, and at the age of 37 would like to
run for president a lot of people think that would be a terrific idea. Well, you know,
any of us can do the math. 37 minus 25 is 12. So, it would be a really important question
whether that person would have lived within the United States for 14 years. Courtesy
of the U.S. constitution. That’s one ambiguous unclear part of the Constitution thatwe think
is a fault line. You know, we didn’t talk about fault lines I am going to have
you do that I will finish this and then we will go back to the fault lines sorry. There
is another ambiguous part. Every chapter in the book starts with a story. One of the stories we tell is about senator John McCain who ran for president. But there was a question
whether or not he was really eligible because of another part of the Constitution. And that
is the Constitution says: You have to be a natural‑born citizen. So, Sandy what was
the problem with John McCain?>>Yes, there are some people ‑‑ I am
not one of them. There are some people believe natural‑born citizen means you have to be
born within the territory of the United States. It’s the same question whether Puerto Rico
is in the United States or not. Senator McCain was born 1934 in the canal zone carved off
from Panama. Ted Cruz for that matter who ran for president in 2016 was born in Calgary,
Canada to an American‑citizen mother there is no doubt he was a citizen when he was born.
Some people say he was born in Canada he is not a natural‑born citizen. Other people
whom I am one if you are a citizen at birth you count. But this also is and remains an
open question in the sense it’s never definitively been decided by the court. This gets to the
title of our book are what are fault lines? Fault lines is a term taken from the science
of geology.>> Maybe some people in our audience want
to ‑‑>>It refers to the fact that all of the continents
and for that matter, all of the oceans because after all under the water there is land. Rest
on land and beneath the surface there are so‑called tectonic plates which rest on
top of one another. Most of the time we live our lives in complete ignorance of this our
lives go on just fine. But some of you might have been surprised a couple of weeks ago
when there was a genuine earthquake in Delaware. And most of us never think of the east coast
as being an earthquake zone. Why was there an earthquake in Delaware? Because the plates,
the fault lines slipped. And when the slippage occurs then earthquakes can happen and unlike
the Delaware earthquake, other earthquakes can be catastrophic. And so, we got the title
for the book from the notion that there are parts of the Constitution which most of us‑‑most
of the time probably ignore they are not the topic of front‑page stories what we are
talking about now the requirements to be president is not something that most people think about
very much of the time. But every now and then it turns out to be really, really important.
And we have 18 fault lines that we talk about in the book.
And some of them if they slip could be catastrophic. And one could argue some of them have slipped
in our 230 years and have been catastrophic. So, that’s really what the book focuses on.
This one you could say practically speaking is not the most important of the fault lines.
Which is true. But it’s one that is actually fairly easy to understand, once it’s pointed
out. You can imagine circumstances under which it really could be very important. What if
a court had said to the republican party: You can’t nominate John McCain or you can’t
nominate Ted Cruz independently of what you think of them politically it’s irrelevant.
Because they weren’t born in a state of the union. That brings up an interesting question
for those of you from Washington, DC because Washington is not a state either but everybody
kind of agrees that Washington is within the United States. But it’s not clear about Puerto Rico.
>>So, this is a fault line (indicating) for several reasons as Sandy mentioned. One is
the meaning of some of the requirements for running for president are not clear and another
is, maybe there are too many restrictions in fact. This is a graphic from the book (indicating).
And it points out that about a third of American citizens who may well have been told when
they were kids too, you could grow up to the President. Maybe they aren’t eligible because
of these restrictions. So, we do think that’s a fault line. Now, one of the other things
that we do in the book is that we explain how other countries and states in the union
deal with things differently.>> Let me talk about this.
>>Yes.>> One moment about states. Because I think
in many ways it’s the most ‑‑ one of the most important aspects of the book. Most
Americans, including a you lot of lawyers probably don’t really appreciate the fact
that they live under two Constitutions except the District of Columbia which is not a state
of the each of the states have constitutions. State constitutions are really interesting
because all of the state constitutions are different from the United States Constitution
in one or another important respects. So, Cynthia will turn to a really interesting difference
between American state constitutions and other constitutions around the world and the United States
Constitution.>> Right. So first going to other countries
does anybody know what country this is? This is a map of France. Why do I have France here?
Because in France they don’t have the same kind of restrictions on running for president
of that country. There are two requirements there may be more but there are two basic
ones. One of them is you have to be at least 18 years old that’s pretty young, that’s almost half the age of 35. No it’s more than half the age not much of being running
for president in the United States. It’s 18 that seems pretty straight forward. The
other is strange you have to have a bank account. We never quite figured it out to run for president
of France you have to be 18 years old at least and have a bank account.
>>In France.>> In France, that’s right. Sandy talked
about states. Well, states in America don’t have presidents. But they do have executives.
President is an executive officer of the United States, the executive in a state ‑‑ anybody know?
Governor. Okay? Governor. So, different states have different requirements
for running for governor. This is the logo, the campaign material from a man named Jack
Bergeson who is running for governor of the state of Kansas. And here is a picture of
Jack and his running mate Alex Klein, Alex is running for lieutenant governor. Kansas
it turns out doesn’t have a minimum age running for governor. Jack is 16, Alex is 17. Only
Alex next year will be old enough to vote for the two of them in the primaries when
they actually run in the primaries for election but they are doing it anyway. And this is
the campaign material for Ethan Sonnwborn who is running for governor of Vermont. Vermont also has no age
minimums for running for executive office of that state. And here is a picture of Ethan.
He is 13. And he is running for governor. Now when I have gone to talk to schools, and
I show Jack and Alex and especially Ethan’s photograph and people realize how young they are. Well,
we have conversations about that. We have a lot of discussion. I have not talked to
either of them, but I have watched videos of them and I have read their campaign materials.
And I have to say, they are very knowledgeable, very articulate and very impassioned about
why they are running for governor. They now have competition from other teenagers,
there are two other sets Jack and Alex are running for the democratic ticket the other
teenagers in Kansas are running for the republican ticket.
>> Why is this important besides being an entertaining factoid. They are not going to
be elected remarkable things have been happening in American politics but it’s still extraordinarily
unlikely they will become governors of Kansas or Vermont. But, and this I think is really
significant, and not merely entertaining, my own personal strong hope is that they get
to participate in the debates next year in Vermont and Kansas. Because I actually think
it would be very interesting and informative to listen to extraordinarily articulate 13
and 16‑year‑olds who are, for better or worse, going to be taking over the country
as our generation for better or worse leaves the scene. One of the things our book is about
really is civic education. What do youngsters know ‑‑ the book is written for teenagers,
what do youngsters know about American politics. But, again, it’s not merely factoids it’s
how the system works and because of the fault lines why the system quite often doesn’t work
very effectively and the fault line shift and produce even potential catastrophe. So,
I think it would be terrific if the then 14‑year‑old Ethan tells us what is if on his mind and
then the ‑‑ and if the then 17‑year‑old Jack tells us what is on his mind. Because
these are smart and aware kids these are not jokes. But this couldn’t happen at the national
level because of a 25‑‑year‑old a Veteran of the one of the wars we have been fighting
endlessly if a Veteran wanted to run for the Presidency, the first thing that all of this ‑‑
the first thing all of us would say is that you are too young. And what that means is
not only that the 25‑year‑old Veteran couldn’t become president, and she couldn’t
because the Constitution says clearly 35, but that we couldn’t hear The Voice of that
Veteran in a debate instead it would be quite likely old folks talking about the future
of the country rather than youngsters. So, this provision has some real consequences
independently of the fact of whether or not Ethan or Jack will actually take the oath
of office in 2019, well the answer is no practically speaking.
>> So, I am curious, we do have some young people here. As you can tell Sandy and I think
it’s a fault line in the Constitution that there is a 35‑year‑old minimum for running
for president. And in fact, 48 of the 50 states do have age minimums for running for governor
in. But I am curious what you think, whether you think there should ‑‑ you should
have to be a certain number of years old in order to run for either governor or president.
Anyone want to respond? You think there should not be an age minimum? No? Yeah? Because?
>>(inaudible).>>Maybe it just doesn’t seem fair? Kids know
important things don’t they?>>It does two things, first of all it basically
says, we don’t have anything to learn from kids you have really got to be older in the
case of the United States Constitution, much older than a kid. Most states have 18, 21,
I think one has 30. But most ‑‑ but all of the state have lower requirements. But
it also expresses a certain mistrust for the voters. Quite frankly, most of us would not
really vote for a 15‑year‑old because, I think most of us would say, you really do
need some experiences before becoming governor. But that’s very different from whether
or not there might be something to learn from the 15‑year‑old in the views of the country
to participate in the debate. And a lot of what our book is about is participation in
politics and the importance of participation. And there quite frankly, you can never be
too young to begin participating in the political process and telling people, beginning with
our parents, but going on well beyond that, you know, listen to me because I might have
something to say even if there are good reasons that you are going to disagree with me. We
can’t really go to Disneyland this year but you ought to at least hear me out on why it
would be a terrific idea. And more importantly to talk about you know, the government.
>> Sandy mention that we have 18 fault lines in the book we want to mention at least one
more. That is the senate. When you learn about the Constitution, you
take a government class or American history class, you will learn that there are two houses
in congress, the House of Representatives, and the Senate. And a lot of classes, most
books about the Constitution it just explains how the government is set up, and how it works.
What we talk about is the problems because of the ways that the way it’s set up keep it
from working very well. So the next fault line we want to talk about is the Senate.
The Senate really has implications even though it was set up in 1787, 230 years ago, it has
causes problems for us today. If you in the last week ate a muffin some pretzels, cereal,
soft drink, raise your hand a lot of us. Me too. The problem is you can see from the graphic
in this book is a lot of what we eat and in fact a lot of what we are with has corn in
it. In particular a lot of what we consume has corn syrup in it. There may be corn products
in the carpeting or the upholstery of the chairs you are sitting in. The problem with corn syrup, there are several, One is with corn syrup doesn’t have nutritional value and it has calories that are not good for us. It adds calories
to the food we consume and the calories can make adults overweight and it can also cause
adults to get diabetes. So, why is there corn syrup in so much of what we consume? It goes
back to the senate and how it was set up in 1787.
>>Right. There is a key difference between the House of Representatives and the United States
Senate. The representation ‑‑ there are 435 representatives. States get representatives
based roughly on how many people live in them. California gets I think 54 representatives,
Wyoming gets one. Larger states larger number of representatives. Very simple. That’s not
the way the Senate works. In the Senate, every state gets the same two votes. So, California
with 38 million people gets two senators Wyoming with 550,000 people gets two senators. We
could discuss whether that is fair but that’s not really the focus of the book. That is
fairness or unfairness. Rather, the focus of the book is what difference does this make?
And there are some very practical differences. It means that smaller states where small is
defined in terms of population because some of the small states are very, very large in
territory, like Montana or Wyoming. That small states get a lot of extra power in the Senate
that they don’t have in the house.>>Can you explain how ‑‑ oh, okay.
>> This also means that the interests of small states will get extra clout. And it
turns out that corn tends to be produced in a number of states in the American midwest that have relatively small populations but a lot of power in the Senate.
There are senators it doesn’t matter if they are republicans or democrats, it’s not relevant.
There are senators passionately committed to the interests of the people who live in
the states, which is fine. That’s what we expect representatives to do. But the point
is the representatives of the corn growing states in the senate both care extremely deeply
about this and have the basic political power to get handsome support for corn farmers.
That senators from larger states can’t really effectively ‑‑ can’t really effectively
oppose.>> How did this come about this started 1787
as a compromise among the guys they were all guys and all white guys in Philadelphia when
they got together at a convention to write the Constitution. Now, at that point, in America,
230 years ago, a third of the people lived in two states. Virginia and Pennsylvania.
Only a 90th of the people in America lived in the teeny tiny state of Delaware. So, when
these guys we call them the framers because they framed the government, they framed the
Constitution, when these guys got together, and they were deciding they were going to
be two houses in this congress to make laws. The House of Representatives and the senate. They
agreed that they would be in the House of Representatives as Sandy said, more people
there from big states, fewer people there from small states. But then they got to the
other house the Senate, and that’s where things really nearly fell apart. In fact we probably
would not have one country we would probably not have one Constitution for this one country
if they had not agreed reluctantly after a lot of debate and argument to give every state
two senators. So, even though a third of the people lived in Virginia and Pennsylvania
and only a 90th of them lived in Delaware. Delaware got two senators the way Virginia
and Pennsylvania did because Delaware said we are just going to pack up and go home we
don’t need to be a part of your country if you don’t give us our two senators. James
Madison who is sometimes called the father of the Constitution was not at all happy with
this feature of his child in an essay he wrote in something called the Federalist. He referred
to the Senate as a lesser evil. There are two important words, one is evil. He thought
that it simply was unfair that Delaware and Vermont ‑‑ Delaware and Virginia had
the same number of senators. But it was a lesser evil because he thought that it was
the price that had to be paid to get the Constitution at all. It’s a lot like slavery. Which was also
a compromise. We live with this today. The consequences today. And that’s one of the
points of the book.>>So, consequences today. So, today our country
more and more people live in bigger and bigger cities. So, today less than half the country,
the country has about 300 million 308 million people in it. Less than half of them about
150 million are spread across 41 states. And those 41 states get a total of 82 senators.
More than half of the population 158 million people are kind of converged into a small
number of states with big cities, only 9 states and they only get 18 senators. So, that means,
that more than half the country is represented by only 18% that’s less than a fifth of the
U.S. Senate. Whereas, less than half the country gets 82 votes in the Senate. So, we definitely
think that that is a fault line. One of the stories that we tell in the book is about
the USA Patriot Act and the money given to the states after the events of 9/11 in 2001,
and how small states got more money per person than large states because it was a governor
from a small state Patrick Lehey.>>Senator.
>>Thank you. Senator. Decided how the money would be spent and that really carries on
even to today. So in 2013, because of the way, in part because of the way the senate
is organized, California received ‑‑ receives less money per person from the federal
government than smaller states do. California is the biggest state. They get $1430 per person
to spend on things like roads, and bridges, and money to help poor people in the state,
and money to help sick people in the state. Whereas Vermont gets about twice as much per
person for those same reasons. So, that’s another way that we think that there is a
fault line in the Constitution that goes all the way back to 1787, 230 years ago. The decisions
that the framers made. They had to make them because we would not be one country. But the
results are that today there is unfairness in how this works out.
>> Right. It’s also appropriate since we are speaking in Washington, it is not to go in to it fully,
we have a chapter on District of Columbia and talking about no taxation without representation
or in this case heavy taxation without representation I think residents of the district pay a lot
of tax revenues to the national government but there is no home rule in the district.
Congress continues to exercise authority over the district in important ways. People who
live in our Nation’s Capitol have no representation in ‑‑ no voting representation in the
house. They have nobody in the Senate. Same is true for Puerto Rico. Though at least
people in Washington can vote for the presidency. But the practicality and the real point that
we are making is not the abstract point of fairness or unfairness. The real practicality
is that it’s very important to have a champion fighting for you with a vote in the Senate.
And if the district has no champions riding their horses, then congress at the end of
the day is not going to care very much about the District of Columbia or about Puerto Rico
or the Senate in particular will care much, much more about the 41 smaller states than
they will about the 9 large states because 82 really is impressively more than 18.
>> Right. So, we do have lots more fault lines that we talk about in the book probably
one of the most famous ones a lot of people are aware of is the electoral college, how
we elect our president which is not by direct vote. We have to go through other people.
And as in this past election it sometimes happens that the person who wins more votes
doesn’t become president. The person who wins less popular votes does because of the electoral
college. We talked about what I call gerrymandering.>>He talks about gerrymandering and how that
relates to the Constitution. There are problems about what happens if the President gets very,
very sick and can’t serve. Now, there are ‑‑ there is a line of succession in the Constitution
about what becomes president. But sometimes that can be problematic. You want to give
just one quick example?>>Well, it’s hard to make it quick. We talk
about two different possibilities. One of them is true catastrophe. Where one imagines
and airplane crashing into the Capitol. And killing or disabling lots and lots of representatives
or senators that can be a catastrophe. Not only with regards to the people who are the
victims of the attack but the fact that the Constitution makes it impossible quickly to
reconstitute a functioning government. But what Cynthia is also referring to, is what
if as happened in 1919 almost a hundred years ago, the President of the United States has
a significant stroke, which really and truly disabled him from functioning effectively
as president? You know, it didn’t matter, he hung on or hanged on ‑‑ hung on I
think it is till 1921. His wife more or less ran the White House during that period. Other
presidents have had heart attacks and strokes. And the Constitution really originally didn’t
speak to this at all effectively. We have a 25th amendment which might be able to become
effective but we talk in the book that the 25th amendment in its own ways it’s own fault
line for one thing it’s totally unclear what happens if the President turns out to be mentally
debilitated, rather than physical debilitation. It’s easier to understand strokes and heart
attacks than it is to understand certain sorts of mental instability. So, we talk about that
as well.>> and we talk about what happens if there
is, say, a whole bunch of people in the country or the government come down with oh, I don’t
know, the plague, and can’t serve. And we talk about how difficult it is to amend the
Constitution. In the end of the book, we give the Constitution a grade. Now, those of you
who go to school, when you get a grade, say on a test, or a project that you have done
your teachers probably told you what he or she expects you to do. Here is what the assignment
is here is what I would like to see you do and I will grade you on it. We have background
standards for grading the Constitution. And it’s the Preamble. The Preamble to the Constitution
that’s how we grade it. Because the preamble reads: We the people of the United States
in order to.>>Form a more perfect union.
>>Establish justice.>>Insure domestic tranquility.
>>Provide for the common defense.>>Promote the general welfare.
>> And secure the blessings of liberty to ourselves and our and our posterity, do ordain and establish this Constitution of the United States of America.
>>So, this is the point of the Constitution. The point of the Constitution is not to elect
a president, it’s not to have a senate. It’s not to have a Supreme Court. Rather, you assess
all of these institutions and the way that the Constitution operates more generally,
by whether or not they enable us to achieve the really and truly inspiring goals that
are set out in the Preamble. There is a lot in our book that is critical of the Constitution.
That’s you know the whole focus on fault lines is designed to worry you a bit. But the Preamble
is really terrific because all of us should be proud that we live in a country that is devoted
to really admirable things. But then the question is to what extent the Constitution might present its own problems. Especially after 230 years of experience with
regard to achieving the really wonderful goals, the lesson plan that is set out in the Preamble.
>>We invite you to grade the Constitution, we ask you, you know, when you read the book, to think about how well you think the Constitution helps us meet, all of us in the country, meet
these goals. Here is a ‑‑ here is a report card that you can do that with. We do not
give the Constitution an A as you can imagine. But we invite you to see the grade that we
do give and why we give it we hope actually that you will disagree with us. Because, in
fact, we blog about the book which I am going to tell you about a minute and you can tell
us what you think. But the real question is: Now what? Here we are, we have this Constitution
it has wonderful goals, we think it has some fault lines that prevent the country from
meeting the goals what can we do now? We especially love this comment from Michael Chay that I
will let you read (indicating). And being grand parents ourselves we are sympathetic
to the idea of taking grandpa out and grandma out and figuring out what we are going to
do now. (LAUGHTER)
>>With this Constitution. Well, Sandy and I actually have a debate.
There is an audio version of the book and we literally you can hear us debating if you
listen to the audio version of the book. Or you can read in the book about our debate,
Sandy thinks what we need to do about the Constitution now is.
>>Have a new constitutional convention as is authorized by article 5 of the Constitution
which is a provision of the Constitution dealing with constitutional amendments.
>>I think that’s a dangerous proposition. Not just because of what might come out of
a constitution who knows what kind of government we might end up with. But I am concerned about
the fact that even though article 5 of the Constitution does allow for another convention,
there is absolutely no description or guidelines about how the convention itself would be set
up. Who would go? How many people? What power would they have? How would they vote? Would they be able to change all of the Constitution or just some of the Constitution what about
the things we don’t like other people ‑‑ we don’t like other people do like. I think we
would get into some debates on how to conduct this convention we wouldn’t get to the point
of having one.>> But let me make one other point where
we certainly agree. It’s especially, I think, important at The National Archives which is
the, you know, one of its central exhibits>>Is the text of the Constitution ‑‑ which is treated as a sacred document within
the United States which in many ways it is. And we talk about the founders usually capitalize
the term as if they are really special people. Which is also true. But it’s extraordinarily
important to recognize that the founders or the framers did not believe that they had
gotten it exactly right. If they had they wouldn’t have included article 5, which talks
about amendment. Because Cynthia certainly doesn’t oppose amending the Constitution,
our debate is the wisdom of having a convention. But the point is that you are not disrespecting
the framers if you say, it’s important actually to assess what they did and one of their favorite
terms, which they use over and over again especially in the federalist which is the
principal defense of the Constitution. They love the terms: The lessons of experience.
If you read the debates in Philadelphia they are constantly referring to the lessons of
experience from what happened in England what happened in the various American colonies.
And saying, we should learn from this. So, we are not honoring the framers if we treat
them as what are sometimes called demi Gods and say they did all of our thinking for us.
All we need to do is to celebrate the Constitution, rather than to think about the extent to which
it might have some problems. And so we should have the same courage that the framers did
to think about the practical problems and do something about it.
>> Those are great points.>> I mentioned that we are blogging about
the book. One of the points of the book is that what happened 230 years ago really does
affect us today. The book ‑‑ so, we are updating it twice a month we continue to show
how current events current issues relate back to the Constitution and what happened in Philadelphia
230 years ago. You are welcome to sign up for the blog there is a sign‑up sheet in
the lobby. And we are holding a competition, a blog of fault line contest. This is for
school kids and teachers, kids can write their own blog post about a current event, and how
it relates to the Constitution, and send them to me I will read them along with our editor,
and we will take a look at them and the winners there will be winners for younger kids and
winners for older kids we will get their posts, their blog, posted on the website, and their
school will get a Skype visit from Sandy and me to talk about this. Well, how much more
time do we have Amber?>>(inaudible).
>>Okay. So we welcome questions. And I understand people with questions need to go to the microphone
is that right? Or if that is not easy for you then I am glad to repeat the question.
>> I am delighted to say this is being streamed on YouTube, and we welcome anybody who is
watching this, either this morning or at 2 in the morning.
(LAUGHTER).>>On the hyperlink, and but it really would
be wonderful to get questions or comments.>> And you are also welcome to make comments
on the blog which is at WWW.faultlines.com or E‑mail us go to my website WWW.cynthia
Levinson.com and students who are here or people who are here want to come to the lobby
afterwards we will give you a sticker that the publisher developed and we just love that
says: I am constitutionally literate because now you are. Questions?
>>Hi, I am Kevin McGowan I was fascinated by your idea about convening another constitutional
convention. I was just wondering if you could elaborate that how it might be organized and
what you see ‑‑ you how it might be run?>>Sure. First of all let me say that most
of my family and friends and professional colleagues at law school disagree with me
they agree with Cynthia about the un‑wisdom of having a new convention. I remain persistent
in supporting it. But I think Cynthia makes the strongest argument against it. Which ironically
or not is the fact that the Constitution gives no guidance what so ever as to how it be organized.
And so, there is actually very active movement right now generally sponsored by the political
right to have a new convention where state legislatures are passing petitions to Congress
to call a new convention. Most of the people who support this believe that the states themselves
would name the delegates and that the voting rule would be one state one vote. Wyoming
and California would have the same voting power. I think for a variety of reasons that
would be insane. I don’t ‑‑ but I also think that it would never establish general
support among the public. If you saw that happening. My own proposal maybe this is if
you are going to hang for a lamb maybe you hang for stealing the whole flock. I would
select 700 delegates or so at random in a nation‑wide citizen jury. There would be
very modest controls. They would obviously have to be some sort of age limit. I love love
the idea 13‑year‑old running for governor I would be delighted to have some teenagers
as delegates chosen at random. But I wouldn’t want our five or six‑year‑old granddaughter
to be one of the delegates so there would have to be some age limit. You would also
want to control against the statistical possibility that everyone of the 700 people would be from
simply one part of the country. But otherwise, that’s the way I would staff the convention.
It would be on C‑SPAN. And again one could say for better or worse because frankly we
got the 1787 convention only because it was a secret. Nobody knew what has happening ‑‑
nobody was in the room where it happened. Which is a song from Hamilton we quote in
>> And it’s easier to make deals where people aren’t looking over your shoulder. That couldn’t
happen in the world that we live in. But in any event. This is how I would organize it.
The fact that it would be on C‑SPAN and many other outlets would, I think, generate
all sorts of public debates, dining room tables, bars, meetings, and lead to a national conversation
that we are not having. Part of what our book is about, is trying to encourage a national
conversation about fault lines that we are not having. People shout at one another all
the time about rights provisions in the Constitution. What does the second amendment mean, what
is equal protection mean. Our book really isn’t about that. Our book focuses on structural
details of the Constitution that really don’t lend themselves to controversies about what
they mean. What part of 2 do you not understand with regard to how many senators each state
gets. Rather, the question is: In the 21st Century are we well served by some of the
decisions made in 1787. That’s the conversation we should be having. Beginning with teenagers
who are going to take over the country.>>Question here. Does ‑‑ where in the
Constitution if it does, does it address specifically presidential pardoning powers this always
seems to me something of a sovereign of a nondemocratic country a king or queen would
have. Particularly in light of current circumstances pardoning powers in relation to one’s self
or family members.>>It’s interesting you bring it up. Think
we are going to have to blog about it soon it’s a fault line we didn’t think about what
writing the book I think we are going to need to enter it into the conversation.
>> As our publisher knows we were revising the book literally up to the day that it went
to press. If we ever have the opportunity to do a second edition, I don’t know that
there will be a full chapter about the pardoning power but there will certainly be a side bar
about it. Because it’s really, really interesting, you can in fact compare it to the powers of
the king or queen. But my own view, actually the pardoning power discussed at some length I think it’s Federalist 74, and there are good reasons for a pardoning power. Now, if you look at
state constitutions, you discover that a lot of them have commissions. They don’t trust
the single person, the governor. They rather give it to a commission. Which makes sense.
But the most interesting defense in the pardoning power has very little to do with mercy that
is, you know, somebody got extensive sentence or really did reform him or herself in prison
and should get a second chance. That’s interesting but actually not the most interesting. The
most interesting discussion of the pardoning power involves the very first use of the pardoning
power by George Washington. Where he pardoned people who had engaged in the whiskey rebellion.
Which was a real rebellion. He got on his horse and went to Pennsylvania to face down
people who refused to pay taxes on whiskey. Taxes have always been ‑‑ it’s not merely
that Americans don’t want to pay taxes without representation. Frankly, most Americans don’t
want to pay taxes with representation. (LAUGHTER).
>>So, you know, the first near Civil War occurred, I think,1790 or 91 called the whiskey
rebellion. They clearly could have been viewed as committing treason. Several were convicted.
I think sentenced to death. And George Washington pardoned them. He was right to pardon them.
Because the point was to bring them back as full members of the country, that really did
have to get up and running. John Adams pardoned some people in an even more obscure rebellion.
Jimmy Carter pardoned and gave amnesty to I forget how many thousands of people went
to Canada to resist the draft during Vietnam. Gerald Ford famously or infamously for some
pardoned Richard Nixon to end the national nightmare of Watergate all of these are controversial
not that they are open and shut but they are the most important examples of presidential
pardons. But if we had the chance to re‑write the book or add the book I assure you there
would be a discussion of the pardon power. Because it is a really, really interesting
feature. And a lot of us today more than was the case even eight months ago would ask whether
or not the pardoning power is a genuine fault line, because the Constitution presents no
limits to presidential pardons, and lawyers can argue with one another as to whether presidents
can pardon themselves. Usually we regard that as merely the worst form of academic argument
because it’s not going to happen. But now one might wonder and the Constitution frankly
doesn’t provide much help with regard to answering questions like that.
>>Do we have time for another question?>>(inaudible).
>>Hi I am Pat Quinlan, I was wondering your thoughts on the electoral college if you think
it’s good, bad if it might ever about abolished.>> The longest chapter in the book is on electoral
college, it forms a part, a whole part of the book which kind of drove Cathy ourr editor
crazy every other part has multiple chapters. This is complex in its origins and how it’s
played out over the years, that it really sustains kind of a bulk of part of the book.
One of the things that we say is the electoral college worked fine as long as George Washington
was president. But in the very next election, after he decided not to run for a third term,
things fell apart for various reasons for one thing the framers didn’t plan it’s like
they tried to prevent the development of political parties. So partisan politics I can its right
away gummed up the works with regard to the electoral college. We do explain why it came
about. There were good reasons at the time. There were no media as we know of it then.
We know of it today back then. Somebody living in South Carolina would have no idea who might
be running for the position in the state of Pennsylvania coming from Pennsylvania. But
they figured the knowledgeable, wise people in their state who you know traveled elsewhere
or were in touch would know who to vote for. So local people vote for those people and
those people at the time of the electoral college would actually be the voters for the
Presidency, it seemed to make sense at the time the details of the electoral college
were rushed together in a garbled fashion in a short order near the end of the convention.
>> You can’t understand the electoral college historically without understanding the extent
to which it is linked with the other most important compromise in 1787 which nobody
ever refers to as the great compromise. Only the senate gets the Capitol G capital C. But
the other compromise was slavery. The electoral college is linked with enhancing the power
of slave states. And one of the features of the electoral college even today that is very
important, is that there is no incentive for any given state to run up the popular vote.
The incentive is for the people who control the politics of any given state to minimize
the vote of their political opponents because the way the electoral college works is that
you get the electoral vote simply by coming in first in that state. And if you win a hundred
to 50 that’s just as good as winning a hundred thousand to 99,000 and in fact a hundred to
50 you are much more confident that you can win. So voter suppression is a genuine problem
in the 21st Century. And I think it would be a significantly smaller problem if we had
popular election rather than electoral college. Then the question why haven’t they gotten
rid of the electoral college given that every single poll since 1944 has shown a majority
of the Americans believe electoral college is a mistake.
>> And most political candidates too want to get rid of it ‑‑
>>So, why do we have it? Why do we still have it?
>>Yeah it’s almost impossible to get rid of because it’s so entrenched in the Constitution.
There are work arounds, but the work arounds actually one of them has to do with they call
it a national vote?>>Right. But which would stipulate that once
a number of states agree to this arrangement, then those states electoral college votes
would automatically go to the winner of that state ‑‑
>>Of the national vote not the state vote.>>That’s right of the national vote. But
that might end up with, say, California having to throw its electoral college votes to republican
or Texas throwing its electoral college votes to a democrat.
>> And it’s quite possible that neither the democrats nor republicans would get a majority
of the vote. They simply come in first. And so, if one talks about modifying the way you
elect presidents one of the conversations we should have is whether we want to have
a system that more or less guarantees that the winner will have the support of the majority
of the electorate. And here we talk about France or the state of Georgia both of which
have run offs and simply giving it to the office who comes in first. When Cynthia talks
about entrenchment what she is talking about, we have a chapter on this in the book. Is
how difficult it is to amend the Cconstitution. The fact is that article 5 makes it extraordinarily
difficult to amend the Constitution, and here is where the senate becomes crucial. Because
though there have been 600 amendments proposed to get rid of the electoral college, they
die in the senate. And interestingly enough, they die in some circumstances because small
states want to preserve what they think are the advantages they get from the extra representation
they get in the electoral college as against what would happen if we simply had it to the
national vote. But also battle ground states tend to like the electoral college because
candidates campaign and spend their money only in about a dozen of the 50 states. Cynthia
and I split our time between Massachusetts and Texas. Let me tell you in Texas if all
we had to go on were the television stations and advertising in newspapers, we wouldn’t
know there was a presidential election going on in Massachusetts the only way that we know
it’s a presidential election is because New Hampshire is part of the ‑‑
>>The media market.>>Is part of the media market. In Florida
you can’t escape the candidates same true in Ohio they are there all the time.
That has perverse consequences. It is not a question of fairness unfairness it has perverse
consequences in what kinds of issues are focused on by presidential candidates and which aren’t.
Most large American cities are in what might be called taken for granted states. And presidential
candidates, whether democrats or republicans candidates rarely make cogent speeches about
urban policy, because frankly, there is not much electoral payoff in it. They make speeches
about steel tariffs in Ohio or about policies that are of special interest to retirees in
Florida. You know, I don’t dismiss the importance of steel workers in Ohio and retirees in Florida but this is one of the ways that the Constitution structures our political discussion, and I
think it’s a fault line.>>Are we out of time? Oh? Maybe we can talk
more after.>>Thank you guys so much for coming tonight
and we hope that you will join us upstairs for the book signing following the program
have a great afternoon. (APPLAUSE)