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tv   After Words Charles Kesler Crisis of the Two Constitutions  CSPAN  May 7, 2021 8:02pm-9:05pm EDT

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>> im here to >> i am here to talk about the important new book the science of the new constitution. maybe i will start off with a very simple question, what are the two constitutions and in what sense is the problem in the crisis they are facing? >> thank you. it's great to be here. thank you for the invitation to booktv as well. the two constitutions are the original constitution, what i call the founders constitution.
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rooted in the natural rights doctrines of the declaration of independence and amended almost immediately and many times since then after it was promulgated in 1787 but that is the constitution of natural rights, limited government, separation of powers, the traditional constitutional structure and principles that american history discloses to us. the other is a competing constitution what i call the progressive constitution that goes by the name of the living constitution which is a term that wilson began to use 100 years ago and that many other progressives and especially people in your field mpjurisprudence have adopted.
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but the living constitution implies none too subtly that the alternative is a dead constitution or at least one that is on life support. and the living constitution, the progressive constitution is a constitution of evolutionary rights, group -based and historically based rights which emphasizes the needs for all constitutional structures to be changeable and adaptable and therefore for the government to go into the business of experimenting on the american people to try to cure their loudest on - - latest social and economic distresses. the problem with having two constitutions in one country that is one too many.
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they conflict increasingly and the polarization and the deepening divisions of politics are connected to the underlying political and philosophical differences. it has gotten worse as time has gone i by as the progressive constitution has become more progressive. and in a way as the conservatives are the other factions have become more conservative or more conscious of what is at stake in what is in peril and the duty to preserve it. in simple form, those are the two competing constitutions
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which are dominating political life right now. >> that is a great summary. but i want to talk to about your view of what that means. so what they mean when they talk about the original constitution or the original understanding at the time of enactment some say it's a general understanding of the public at the time others say by the community of legal experts of lawyers and judges and others and if they wrote a book on this topic they would go into some detail of what is the true source of federal power under the original meaning and individual rights but with you it isn't that
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type that may be that what you mean by the original meaning meaning them more original understanding of natural law. can you talk more about what you mean of the original meaning and how perhaps it might be different from that authored by other constitutional theorist especially those on the right that think of himself as a regionalist? there is a lot of differences in content like originalist are people that think of themselves as an originalist. >> you are right. that argument between original him and whatever the opposite is now there is conservative
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original is amend liberal original is on it is a fascinating field and those arguments are well-developed. that ground is fairly well trodden. in this book i try to look at the general political principles behind the republican government that americans created for themselves beginning in the 17 seventies with the replacement of the articles of confederation by the constitution in the 1780s and 17 nineties. with the bill of rights. i'm not interested so much in the question how a judge would interpret which leads to interesting questions and debates the judge and others have had and other political theorist on the question of
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whether the judges is comprehensive and away. is he a one-stop shop for justice? that is an interesting debate but not the one i am staging are looking into in this book. but the generation that ratifies the constitution and the whole series of constitutional settlements along the way along with the state constitutions written in the 17 seventies and the declaration itself. going up to and including the bill of rights or beyond that. but there is a unity in the moral political ideas of that
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generation broadly speaking reflected in the documents and in the text of the document and any argument of the documents. i am taking a more latitude point of view than the judges. i'm trying to take the citizens point of view or the statesmen point of view where you are actually concerned with giving a lot not interpreting it once it has been given. they are parts of the same process in a way but what i'm concerned with is the moral and political presumption of republican government in a what one - - in america as it works itself out and how quite remarkably in the last 100 years, a counter theory
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has been developed by woodrow wilson in the progressive generation and generations of liberals cents i don't think is known well of how high the contrast is between the political theory of the two constitutions. i think it is important to understand the level of disagreement in order to see why politics has taken the direction and has taken the last 50 years. >> it's fair to say you're not taking the judges perspective and that is not the only one on a more fundamental level and thentl to press you more on
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this point because he focus on the broad general principles is not entirely clear to me how the principles would shake out for this particular lawsuit but it is all or most of the new deal with the great society if many of the programs are constitutional there is a theoretical difference between you and progressive constitutional's if it turns out most are also
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constitutional on yours with more marginal cases even at a theoretical level the crisis could be at some parts that on the other hand you think a high a proportion of the new deal that regulatory program if that is unconstitutional they say we need more of it than i'm not asking you how wouldr. you decide every single case. and with that constitution and that have arisen over the last
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century. >> i'm impressed by the fact that thinkers and jurists but also statesmen from all parts of the political spectrum at the end of the 19th century and the beginning of the 20th were impressed of the change of condition of social life. with william howard taft and other republican conservatives progresses who say the same thing of woodrow wilson and teddy roosevelt. that some political changes in constitutional changes may be necessary to t handle the new conditions of large-scale
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enterprise and international commerce and even large-scale immigration with the new conditions of america of the machine age and electric age and the new technologies that are changing the world. there is something to that. there is a reformist generation in the republican party and democratic party who try to a figure out if wages and hours laws would be needed and if so are they constitutional how can regulation and antitrust regulation and other kinds also be squared with the constitutional system for the
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first 125 years or so. i am sympathetic to the attempt to figure out what marginal changes can be made that addresses the real problems of the age. that don't do permanent or extensive constitutional damage alongng the way. that was the debate going on in the first couple of decades in the 20th century among progressives but everyone was a progressive those days but the right question to ask without changing those fundamentals what could usefully be made to the national regulatory apparatus?
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they were feeling their way forward. what i focus on in the book is not the fight at the margin of what could be done or what should be done, but rather the wholesale change of ideas to underline the whole debate which moves away from which assumes to ask what can we do given the separation of powers with federalism andra so forth? a new spirit that wilson calls the new freedom from the old constitutional arrangement and from the assumption of the old constitutional system so in
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theory searching examination and rejection of the whole separation of powers as a constitutional requirement and the moral and political requirement. once you shifted from a debate that is marginally possible to sifundamentally possible what is in the nature of good government then you have set up not a dispute to new circumstances but two constitutions which increasingly are pulling in different directions. >> i take the point there is a
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distinction that what is marginal for some people so it's not entirely clear if you think social security or a nationwide minimum wage is the adjustment us economic conditions. i personally think it's a fundamental change but you may differ. >> it is clear from the point of view that of many of the justices and intelligent people it is unconstitutional. they were not simply the marginsat , but they raise new kinds of moral claims that have a tendency to crowd out the older form of property rights and personal liberty rights to some extent.
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and i recognize that. and in theory i agree with the argument this is a constitutional a innovation. looking at it as part of the complications of that theory, with a super majority passing the new deal programs, you have a practical political problem which is one that republican party found itself inn very quickly and ever since has found itself in.
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as a practical and political manner some of these are more unconstitutional than others and practically resistance should be concentrated on the work of them and to rollback what can be rolled back. sometimes that constitutional fundamental gets in the way of practical democratic politics and improvement. but i would say it's a little late in the day now to expect the supreme court to overturn social security or most of the other social welfare innovations that are now into
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our politics usually not the cohorts but by congress over the course of the last 100 years. part of the problem that neither one will go away immediately anytime soon. so there is a high level of conflict in contradiction. >> i word note depend on how much of this you are willing to accept too many of the progressives for what llinstitutions or programs but i to ask a more fundamental question and with that of the
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fundamentals of your view is we should be following the original constitution or perhaps even other conservative alternatives. so what is the normative ground from three different answers? and that you talked about in the declaration of independence for what was consented to. and that was not unanimous consent to the resolution and very emphatically there wasn't the unanimous consent to this constitution i don't think
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there's anything at any point in american and history so at least in my interpretation another possibility that the original constitution not because people consented to it but it o is based on the moral principles because they still have the duty to follow it. so the final person on —-dash for virtual discussions about prudence and statesmanship the institutions of the original constitution interpreted broadly are better for the pragmatic problems or the evolution of society of the living constitution and you
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talk about statesmanship when you talk about the founders talking about abraham lincoln and to be overly optimistic about human nature if that is truly fundamental not that combination for all three but what if it turns out the original constitution doesn't enjoy anything even remotely close to unanimous consent? maybe it is still based on the right moral principles or conversely it gets certain them principles in some ways.
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please feel free to point out. >> . now i would say it's not because the principles but i think they are correct. including the people of the united states. that is a question of consent. under social contract theory that is at the formation of a civil society that will be joined together as one.
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what the laws would be of that country that is a separate stage of consent in classical theory of which majority consent is the most practical and most moral of legitimation. with before or afterwards. but the fact that not everyone consented, which of course is true at the federal level. as long as the majority is consenting and and as
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legitimate and then you have a viable political rule to follow. with that constitutional party coming out of the founding. and that constitution writing moment in keeping with the theory of f the people who founded the country, that the operations of consent that were directed and consent was gathered in the process if it
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is a series of continuing resolutions and decisions from at least 1774 through 1789 or longer. may be reasonable to say consent happens over time instead of all at once so anywhere on the process i failed to see where that unanimity occurs maybe it isn't necessary some say it is at some stage. >> practically running there
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is ever unanimity per se. the federalist makes much of the fact that the decision in philadelphia convention was unanimous in the sense that nobody who oppose the new constitution stayed around. they all left they all signed it. but it was practically unanimity but there is a vigorous debate about what that meant and what has been agreed to with that ratification process. but one of the interesting things about the founding is we haven't studied it much as a founding. look at it from the point of
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view with those accounts in general those classical accounts you get the interesting most accounts are a very important part of the american republic is the expulsion of loyalist during the war. is a very old man with the declaration of independence he sends a layer on - - a letter to the mayor of washington dc he cannot come in person he is too old and infirm. that has a paragraph to be read aloud to the crowd in
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washington to explain the meaning what the declaration of independence was. that they all thought alike on these questions but what happened to the american tories? they were basically excluded from the political community. that is the beginning of the founding when aristotle's account one of the earliest stages is to have as many friends of the regime as possible and as few enemies. >>k we could talk the rest of the time. it does seem to me with the consent or otherwise coerces
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in the constitutional convention that george mason was one of the members who at the end refused to sign the speech why he thought the constitution and amending that was a terrible idea so therefore he did not consent. i know there is a lot more and with the audience you talk about thehe progressive constitution so it seems like you divide the development into three waves of the progressive and later perhaps the great society the modern multiculturalist left. what you think there's
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significance is. and you reject the views. [laughter] >> i use this formula of the three waves of liberalism in my book. andth the three waves of progressivism at the beginning of the 20th century, the new deal and the great society and it's veryth untidy in the sixties. it's not just lyndon johnson in the administration. but all of the new left. with theoh johnson left in the new left so looking at the three waves with the new
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political science the assumption of the older political science that there is such a thing of the natural individual who has rights that cannot be violated morally. he has the right to consent to government and the government has a duty to protect his life, liberty and property in pursuit of happiness. and other rights based in nature and many developed into civil rights. which have the protection of the law and legal process.
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all of those assumptions someone like wilson and his fantastical. there never was a social contract those that were isolated from larger groups of human beings files society. no rights by nature all the rights we h have we created. man has created in history and in politics and in social groups. that argument pointed toward the living constitution is a new way to understand what adjust political order has to be like. it has to be based upon the groups that compose the body
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politics and the rights of those which are generated by the body politics. there is a rather unequivocal embrace of group rights as real human rights. in the position of the early progressives they don't come from nature or god but precisely from our own will human beings are the author of human rights. there is nothing above us that colors those rights. or attaches to those rights to
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give a certain binding authority and meaning. and therefore the government itself one could understand if human rights were a permanent feature then why would you also want one that was fairly permanent you defend those that are human nature. but if they are constantly changinglv and evolving so then you want ae government that is not as permanent as possible but flexible and changeable the living constitution is a darwinian notion a successful organism has to change to survive.
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and with those innovations of the first wave of american liberalism modern american liberalism. very briefly. you can't run for dogcatcher without a real leader. to understood the leadership as a necessary part of part one - - politics. you cannot be a leader unless they follow up with you. not to has those to follow someone and thinking how they
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have to govern themselves of that again the terrien and libertarian way. but we have as an inheritance that presidents should be very strong leaders and their job is to keep the government moving into the future and evolving the job of congress and the rest of government is to follow the executive as he pioneers and pushes forward into history. that essentially is wilson and roosevelt's notion of what a president should be and we
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caught the bug and that's what we think about the president anymore. so now to go little bit faster it is the new deal. of all of the innovations that when i focus is the change of the nature of rights. fdr called for a second bill of rights he had a series of amendments or mock amendments to establish the new second bill of rights and among them are thep rights of healthcare to unemployment insurance the right to a good education those that may be perfectly
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respectable no one have consider them to be right and a strong sense and what fdr did was to take these new collective goods to turn them into individual rights and have a right to healthcare that is a late constitutional innovation and have been ever since. flashing forward to the sixties it is a completion of the welfare state of what fdr was attempting with the new
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deal, that also with a new more radical turn on the left which is located on the new left the anti- vietnam war left but not confined and it spreads rapidly of the democratic party so it is a right to what we now call politics these are bisexual preference by gender, as well
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as environmental rights and the whole suite for the group quality of american life he said the new deal liberalism was quantitative about finding a floor of a standard of living for every american. but then to become interested in qualitative questions with a good inner nature with a good sex life that somehow the
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government had a responsibility for that is the third wave of liberalism so we are living with the contradictions and complications of the third wave. barack obama in many ways with the lbj style combination of lbj in the new left and obama was a fusion of the two sides of the third wave. those are the three waves of
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liberalism it changes the politics enormously so if you look back over 100 years that the progress he will see how different american politics is in the 19th century and you will see how that conservative resistance has been less than successful but the modern conservative movement didn't come on the scene in a strong way until the end of the 20th century. you can say ronald reagan's election in 80 was the first for the conservative movement may be gingrich success 1994 ending 40 years of democratic
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control of the house of representatives that is along. that is an important moment but that is 1980 and 1994 the century is virtually over. this is why i call the american liberalism. >> that's a good and interesting survey. but one more question of liberalism on the one hand there is a duality and those changes they have made of
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those three waves of liberalism would you think it is desirable to try to get rid of? to go back to that liberalism that is prevailing in the beginning of the 19 sixties let's say. with that concern of those questions and then to improve
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matters for white families and black families and those of all colors in the united states to provide the basis of compromise or at least a cooling-off period but instead our politics is very much driven by the creation on the qualitative side. of the moralistic side. so our politics is about transgender issues. it's all about practical matters in covid and what to
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do about the covid virus and the vaccine. probably more space for compromise instead of those qualitativeue questions but it is very interesting left and right or guilty and then if you become obsessed with pulling down the statues of lincoln and washington and staging a purge of american history and with american monuments
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that we want a revolution of people representing new principles. that takes you in the direction it is very hard where you agree to disagree. >> depending on how to interpret of what you just said it could be that you have very deep and profound differences but it could be if you are willing to accept that quantitative stuff with those certain politics it could be 90 or 95 percent of those activities of government that is not e such a big deal you could limit that.
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and then with your review of the right there are a couple of aspects what are the the left.f is there not those on the right? in terms of saying that you note people on the right have a view that are not principles of natural rights but of a national identity that is anglo protestant orld christian in the rhetoric of donald trump but the policies on immigration trade on spending and other issues. of with that vision of the real immigrants or so forth
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that is really are with european right-wing nationalism or other s countries. so are you worried about it? >> i understand that temptation on the right. i do worry about that. it isn't the case that this is a prudent and reasonable position. it is a reaction to a position the left has taken. you can't have identity politics for everyone except
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american whites. if you have identity politics for every identity they have a right to that after no nationalist or whatever you call it, politics. i think it is a mistake for the right to go down the road as it was for the left. the only solution is to turn around and go back in the right direction. but trump himself is interesting. because he never called himself a populist. political scientist have wasted a lot of think writing about him as a populist or authoritarian populist. he never called himself that he didn't think of himself in those terms but he did call himself a nationalist once or twice.
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of course a nationalist is an old american political term. just depends on if we talk about what kind of nation we are talking about and america always understood itself to be an exceptional nation. not that it is immune to all the other political problems thate suffered because it is not because hamilton and madison wrote this in the exceptional is papers your free to be exceptional but it doesn't mean every aspect of your life will turn out happily. but it does mean, for america
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national rights and those that go along with it are fundamental to the notion of citizenship. so there was no ethnicity as such america was a very open-minded country. attracting immigrants from all over the world with that voluntariness of citizenship in thehe in voluntariness of the labor relations on the plantation it was obvious to everyone in american politics.
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the constitution is underrated as an antislavery document. of those for 75 years of american and national political life in a clear way despite 1619 project and then to emphasize the other view of those facts. >> we only have a minute left. some of the anti- constitutional party, do you seeat a tendency of that? you say trump is not the caesar figure and maybe do not
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have the ability caesar has but with those events of january 6th before trump's reaction to the election but that is much of the republican party where they rejected the transition of power. with that violence of january 6 is that showing deeper anti- constitution tendencies on the rights but that will go away or how that fits into your tolarger thesis? >> i just wrote a long essay on this question for the claremont review book in which i take a position that trumps speech on january 6 did not incite insurrection. it seems to me it fails the
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incitement test. however it is reckless to hold a mass rally on january 6 their day that congress was constitutionally handed the job of counting the electoral votes. providing a necessary step of the president. and of that constitutional order it was reckless to sell on - - send the crowd down. and to handle that at the other end like capitol hill. i don't think he intended it to be the insurrection for peaceful protest with the week
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republicans that voted against him on the impeachment question on the electoral count question as it were. soan we had in mind a regular political process but he was playing with fire. no doubt about it. . . . .
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didn't how to say it was there but it was done and it was now governing politics and he was leaving the white house and the new president was coming in and he continued to protest the furnace of the election until doomsday he would likedo but he had to leave and he did but he did it in a way to disgrace many of his good achievements as president, he had a record of good policy in many respects, not all respects but many respects. i was shocked that he took, i still don't think it made him a
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figure but it discredited his achievement. >> thank you for the fascinating discussion. almost any of the big issues we talked about we could spend a lot more time but we have to leave it there. if you're interested to check out your book, they could get more of us on on your thoughts there. thank you so much. >> it been a pleasure. >> for me as well. ♪♪ >> book to be on c-span2 as top nonfiction books and others every weekend. then, linda, nina, extraordinary story of the founding fathers of npr, author and journalist lisa profiles for journalists, susan, linda, nina and robert whose
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reporting helped establish national public radio. sunday 9:00 p.m. eastern on "afterwards". new yorker staff writer patrick talking about his book, empire, the secret history of the -- family looking at pharmaceuticals. sunday 10:00 p.m. eastern, former president george w. bush talks about his paintings of immigrants and their journeys to america in his book, out of many, one. watch tv this weekend on c-span2. ♪♪ ♪♪ >> american history tv on c-span three, exploring the people and events that tell the american story, every weekend, saturday 2:00 p.m. eastern on histories, oliver recalls his time in the
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u.s. navy crew member in vietnam. saturday 8:00 p.m. eastern on elections in history, the american car culture, films of the 1970s at the university of dayton professors, john todd, sunday 2:00 p.m. eastern on oral history, charlotte henry on her expenses as a dog handler with the u.s. air force during the vietnam war sunday 4:00 p.m. eastern on real america, 1972 them, a time for peace documentary presents a trip to china, the first ever and then 6:00 p.m. eastern on american artifacts visiting san francisco to hear the story of the chinese in america during this, watch american history tv this weekend. >> thank you. today i am honored and happy to visit with rosa brooks, the other of an inter

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