tv Beau Breslin A Constitution for the Living CSPAN March 26, 2022 11:55am-1:01pm EDT
ford rosalyn carter nancy reagan hillary clinton, laura bush michelle obama and melania trump watch first ladies in their own words saturdays. pm eastern on american history tv on c-span 2 or listen to the series as a podcast on the c-span now free mobile app or wherever you get your podcasts. all right. so without further ado i will very happily introduce our author this evening bo breslin is the joseph c pelham mountain junior chair in government and the former dean of the faculty vice president for academic affairs at skidmore college up in saratoga springs, new york. he holds a phd in constitutional thoughts from the university of pennsylvania. he is the author of the communitarian constitution. from words to worlds exploring constitutional functionality which was part of the john hopkins series in constitutional
thought and his latest work, which is why he's here this evening a constitution for the living imagining how five generations of americans would rewrite the nation's fundamental law which came out last year. in addition to writing about constitutional issues. he has also published works on capital punishment restorative justice and legal philosophy. so i am very excited to hear from dr. russell in this evening. this is such an interesting topic, you know, i feel like oftentimes we've had scholars come on constitution 101 and look at kind of every angle of the constitution as as it exists, but i think your book is just so interesting of a thought experiment and i'll let you take it from here and explain how you've kind of thought through this process of the idea of a constitution for the living. thanks so much, emily. i really appreciate the opportunity to chat with you and all the listeners and viewers.
i want to thank the robert h smith center for the constitution at james madison's montpelier. it's kind of coming home for me. i was there at the beginning of the of the birth of the center and it's really nice to get back. thank you to all the viewers. and happy martin luther king day to everyone out there as emily mentioned. my book is different and i want to start by i'll describe how it's different in a second, but i want to start by saying what i set out to do was contribute to a conversation that has picked up steam as of late. and that is the conversation about whether or not it's time to return to philadelphia and rewrite the constitution and what i'm gonna do hopefully we'll get through. quickly without being irresponsible. i have about eight slides that i want to show you and the idea is
to describe what the book is about and then go through each of the slides and then provide as much time as possible for the folks in the audience to ask questions or comment people tent generally tend to to like to talk about what constitutional reform should look like. so i want to eagerly get to that and i'm gonna share my screen with you assuming this all works because as i said, i have a couple of slides i want to do. all right, right, let's start by doing slideshow. okay. so let me describe for you what the book is about emily mentioned. it's called the constitution for the living and it takes a simple debate between thomas jefferson and james madison and kind of imagines a different world, right? so so i'm the constitutional theorist. i'm very interested in constitutions and as most of you know madison in 1787.
father of the constitution is writing the constitution. he has great admiration for jefferson. so when he's done with the project in september of 1787, he ships off a copy of the constitution to to jefferson who's in paris and asked jefferson what he thinks about the constitution and they get into this roughly two-year correspondence back and forth about the virtues and vices of the draft constitution and jefferson writes back to madison and says, oh, you know, i like certain things about the constitution but one thing i do not like about the constitution is that there's no sunset claws, right? so and what he meant by that is there's no mechanism for the constitution to be rewritten at various times and he writes this famous line. he writes famous statement that the earth belongs and use a
front to the living that dad have neither powers nor rights over it and jefferson writes this essentially to say that a constitution created by one generation. that is authoritative over a future generation is just another form of tyranny for him. that was really problematic. and so he and madison are back and forth about about generational constitutional change jefferson being the amateur mathematician does all this calculation and decides that every 19 years. that's when a generation turns over and so every 19 years the constitution ought to be rewrit. madison writes him back and says, oh no, no. no, that's not you know, that's not that doesn't work. constitutions must endure over long periods of time in order to have the necessary strength and stability and credibility so that the country that the constitution is constituting is
stable. so they throughout their lives they disagreed jefferson forever for his entire period of his life thought that each generation ought to write his own constitution madison was a was a fan of enduring constitution. so what my book is it's a simple counterfactual what would those constitutions have looked like if jefferson had convinced madison and others that generational constitutional change was good. what would the constitution's in american history have looked like if jefferson had won that debate? and so what i did was i imagined in narrative form five constitutional conventions and i write the stories of those constitutional conventions in the constitutions that are drafted during that period now a couple of ground rules before i
get to it to the constitutional conventions. first of all, jefferson argued that each constitutional convention ought to occur every 19 years because for him that's the kind of the changeover moment for a new generation. that was a little indulgent for me to do account to imagine a constitutional convention every 19 years. it wouldn't have been that much change and it just seemed that was a little bit too much. so what i did is i took the spirit of jefferson's generational constitutional idea and i identified the life expectancy of those people at the time of the constitution and situated constitutional conventions based on life expectancy. so you'll see that i have five constitutional conventions that come after 1787 ones in 1825 once in 1863 ones in 1903, 1953 and 2022. and those are based on life expectancy of the average person
at the time. so in 1787 the light average life expectancy of a white male was 38 years. so i've i imagined a constitutional conventions 38 years from 1787 and 1825. life expectancy does not change in 1825. it's still 38 years so fast forward 38 more years and what you have is 1863 life expectancy is a little bit longer in 1863. it's 40 years. so the next constitutional convention was 1903 then 50 years 1953 and in 1953 the average life expectancy of the american citizen was 69 years, which means that the constitutional convention would have been 2022 this year super exciting that it aligns nicely with this year. what are my what is my data?
i can't make things up. it wouldn't have been a credible experiment if i had made things up. so i used state constitutional conventions state constitutions. there was a hundred and fifty five different state constitutional conventions in our history. they provide a wealth of insight into what constitutional convention conversations would have looked like at various times in american history. sure. they're at the state level and nationalizing them would have been a little different but then but state constitutions and state constitutional conventions talk about the same thing that of federal constitutional conventions would have talked about power rights liberties equality things like that values and so on so i took that as part of the data constitutional amendment supreme court cases. these were all part of the story that i that i crafted for each individual convention.
and as i write in the bottom here my conventions the the various chapters are in narrative form their storytelling i talk about people who were alive at the time and would have been invited to the constitutional convention they stood for and so on. so without further ado, let's get into it. the first constitutional convention is 1825. and daniel webster is the gentleman at the right side of the screen. there's no question in my mind that daniel webster would have been a major player. i would have been a delegate from massachusetts. he was obviously he was the foremost lawyer in the country at the time and he absolutely would have been part of a constitutional convention. i make it clear in my writing that every constitutional convention will be in philadelphia as a nod to the original 1787 framers and what they would have talked about in 1823 are various things right
including electoral college reform. why because the 1824 presidential election the one that gave us john quincy adams as our president was a bit of a disaster, right? it was what the second kind of the second presidential election that was thrown into the house of representatives the 12th amendment worked sort of but not completely and so the electoral college would have come under scrutiny in 1825 and if you combine sort of the thinking that the electoral college would have been tinkered with a little bit. i'm not suggesting that would have they would have gotten rid of it. they would not have an 1825, but they would have tinkered with it. in part because of the populism of the kind of jacksonian era that we were entering i make an argument that the electoral college would have looked a lot different after 1825 you would have eliminated the state
legislature from selecting delegates and it would have been a much more democratized electoral college. i also argue that most state constitutions at the time front loaded their declaration of rights. we could spend the entire hour talking about hamilton and madison's argument that bill of rights was not necessary, but it was added as a it was added to the 1787 count institution in 1825. they would have put likely article one declaration of rights first after the preamble before the design of congress, so it would have gone preamble article one list of rights including some that were not in the bill of rights and then article 2 would have been kind i argue in 1825 that there would have been a change to federal court appointments enough people were -- at john marshall at the time that they would have probably tried to do some a lot of delegates to the 1825 constitutional convention would
have wanted to change the federal court appointment structure from from lifetime tenure to something like i make an argument that the house of representatives would have they would have suggested that the house of representatives nominate federal court judges confirmed by the senate for a seven-year probationary period after seven years you do get lifetime tenure but there's kind of this seven-year probationary period which was very common at the state level. and then finally in 1825 among other things, i think they would have changed our wonderful preamble, right? the preamble says we the people of the united states in order to form a more perfect union established justice ensure domestic tranquility provide for the common defense from other general welfare and secure they blessings of liberty to ourselves and our posterity do ordain and establish this constitution for the united states. if we live in a jeffersonian world where we're doing generational constitutions, there is no need for
establishing a constitution for our posterity for those in the future. so as a result the preamble likely would have changed in 1825. maybe the most interesting constitutional convention would have happened in 1863 38 years after because that's a life expectancy of the average american. note the year, right 1863 were smack dab right in the middle of the civil war. i probably would have preferred that the constitutional convention not appear in the middle of the civil war, but it was super fun to craft a narrative a story about this constitutional convention and i'll talk for a moment about about you know, some of the questions that would ever arisen in 1863. so first of all, where to hold the constitutional convention as i said, i sort of make this argument and kind of the historical narrative that will always go back to philadelphia
as not the original frameworks well in philadelphia in 1863, and i also make the claim that the conventions would have happened at roughly would have started it roughly the same time so mid-may of the year, right? so in 1863 robert e. lee's army is not that far away from philly. so the question is do you hold the the constitutional convention in philadelphia? and what i did is super interesting. i reached out to a great civil war historian who's now a princeton a guy named alan wells though. everybody should read his book about gettysburg. he was a when i reached out to him. he was at the time at gettysburg college, but now he's at princeton and i said, you know alan where here's my scenario where might they have held the constitutional convention in 1863 assuming it went on and i said, would it be new york or
boston or something like that? and he's you wrote me back and he said bow they probably would have considered the framers probably in the 1863 probably would have considered columbus, ohio and i say hold on this ohio really and he said yeah, don't forget couple things one is they want to give a nod to those western states west of the appalachian to ohio is the third largest state by population. they probably would have given some thought to to columbus, ohio. but ultimately he said certainly not new york new york was very much kind of in bed with the secessionists more so than any other city in in the north, so probably they would have gone to boston. here we are in boston in 1863 and the gentleman that you see on the right are james ashley and john bingham the two famous figures who ultimately crafted
the 14th amendment they certainly would have been at the 1863 constitutional convention. the topics of conversation would have been those that were that were part of the equation at the time of the civil war slavery would have been a dominant topic of conversation when i what i write is this ongoing discussion about emancipation and equal protection. what would a constitutional clause have looked like in 1863 if it if they had an opportunity to sit around the boston state house and crafts together a new constitutional convention now no southern states would have sent any delegates. so would have been northerners it would have been much a debate. we in kind of the moderate republicans the lincoln wing and the radical republicans. it would have been a really interesting debate. they would have talked about certainly would have talked about black suffrage and they certainly would have talked
about abortionment right when they eliminate the three-fifths compromise. they would have the framers would have thought. okay. how do we figure out how to apportion with the eye towards eventually the union coming together most would have thought eventually the union would have come together again. how do we think about a portion meant when when we have the emancipated enslaved peoples? those were the major topics of conversation. obviously there were lots of other topics of conversation that were part of the 1863 constitution, but a super interesting conversation and imagining a constitution in 1863 was was daunting and exciting. 1903 we're back to philadelphia, right? so it's now 40 years later and the life expectancy as i said of americans in 1863 was 40 years. the 1903 constitution also extremely interesting first
constitutional convention to welcome people of color right booker t, washington in the middle. could possibly maybe even likely would have been invited to the constitutional convention from the state of alabama, right? he's in alabama and alabama was going through a progressive period at the time not racially progressive, but they would have been going through a progressive period at the they went through a progressive period at the time and interestingly as booker t, washington as a bit of an assimilationist probably would have been a serious consideration for alabama to send as a delegate because it was unlikely that he was going to be you know, frederick douglass or somebody who was a little bit more antagonistic. so booker t. washington gets gets the invitation in my story on the right is quana parker who's for all intents and purposes one of the major figures in the
comanche tried. he too was a major figure in the turn of the 20th century. he might have been he likely would have invited the guy on the left is a congress member from from tennessee. i'll talk about in a second a guy named fetus sims congress member from tennessee. so what would they have? what would they have talked about in 1903? well, they're going to talk about a lot of things right. they're gonna talk about monopolies. they're going to talk about the economic collapse of the 1890s, but one of the interesting things they would have a constitutional convention in 1903 would have talked about is the vote for women. why because it's yes, it's not for almost 20 more years that the amendment comes in in tradition in historical times, but the the the franchise for women was a fairly significant conversation for the previous 20 years before the turn of the or
more before the turn of the 20th century. so they absolutely would have given conversation to it. and this is where a theta sims comes in because there's this little known sort of historical true historical moments or movement. i will call the southern strategy right? so there were some white men from the south who got together with with those who wanted to men mostly men want to extend the franchise to women and those those folks thought that one of the one of the strategies that they could use to convince states in the south to to extend the right to vote to women was to argument was it would dilute the black vote right? so you bring what amounts to 25
million additional women onto the voter rolls most of whom are white they're likely to quote follow their husbands in in voting for a particular candidates and what it does is it if you add that many white women the thinking went the southern strategy win, you'd dilute the black boat. i argue that theta sims who's a real figure a real congress member. i'm kind of takes that to the convention and it there's this moment where his ulterior motive is uncovered by by a newspaper, man, and he has to resign from his position. but ultimately the women the franchise for women gets past. they've probably would have also lots of state constitutions at the time had this introductory statement that kind of resembled the declaration of that that resemble the declaration of independence that the famous
phrase about protection of life liberty and pursuit of happiness. you'll see in lots of state constitutions. so i have booker t washington kind of advocating for that super interesting moment. i have quanah parker as i said advocate advocating for native american land rights, this is the time when you know, teddy roosevelt and others were were essentially trying to eliminate or or dilute the power of indigenous peoples and make them more, you know, kind of like the white european like give them, you know, 40 acres or 30 acres or 20 acres and make them all kind of capitalist private property quantum parker. have going to the constitutional and convention and ultimately trying to argue against that but he up losing that battle. 1903 super interesting constitutional convention 1953 50 years later the next
constitutional convention comes and what you have the folks that you see is thurgood marshall up on top 1953 right? we're right at the heart of brown versus board of education thurgood marshall certainly would have been invited to represent new york, right because he's coming out of the nccps coming out of new york city. he he's born in baltimore but his his the state in which he resides in in 1953 is new york. so he's a delegate from new york. you have percival baxter. who's the governor the former governor of the state of maine with his dog gary on the left. he is the arguably most famous manor at the time, although he hasn't been governor for quite some times. it's quite some time. he would have been no doubt invited. you have mary mcleod bethune vice president of the naacp on fdr's black cabinet. she likely would have been there
this 1953 constitutional convention is first to welcome women, right? it was unlikely that women would have been invited to 1903. so in 1953 to get invited to and they come well represented in my story. um some of the arguments that they would have you you can imagine i have this interesting story about thurgood marshall being frustrated with the equal protection clause not being because of course, this is the the convention would have met before he argues for the second time, right? remember 1952 and then he argus brown versus board of education and then the supreme court asked him to re-argue in 1953, but not till december. the 1953 constitutional convention starts in may. i have him frustrated that the equal protection clause is not holding its weight. what are we going to do about that? one of the art one of the interesting debates would have
been term limits for presidents and president in 1953. imagine. yes, it becomes an amendment to our 1787 constitution. but if you have now periodic constitutional conventions timing is interesting, right? so fdr wins his his fourth term in 1944, right? he he dies 82 days into his presidency. so so the question becomes do you wait until 1953 to have the conversation about terminal and it's knowing that you'll not get an fdr somebody who can stand for three or four terms until after the 1953 constitution. so it's an interesting question about timing. and then i have this fascinating conversation about ratification. right a fascinating ratification is one of my my joys i love talking about ratification. and when you think about the
1787 constitution the article 7 is simple it says this the ratification of the convention of nine states shall be sufficient for the establishment of this constitution. and here's the important part between the states. so ratifying the same right so if you think about periodic constitutional conventions, how do you resolve that issue? and what i argue is in 1825? 1863 1903 though in those they i argue that the convention delegates would not have asked for unanimous ratification, but in 1953, they were ready for unanimous ratification. and it's interesting to me when you think about ratification sure in 1787 all 13 states end up ratifying but what if one had held out right so or what if an 1825 five states that held out
what would have happened? one of the interesting things is when it comes to constitutional amendments. it requires. eventually three quarters of the states to ratify constitutional amendment. what do we do about the 25% who either don't vote for ratification or don't ratify. we just say to those 25% of the states those one quarter of the states too bad. you're living by the constitutional amendments. so for me, there has to be a moment if you imagine periodic constitutional convention. where they're going to require unanimous ratification and i argue that in 1953. is that year? which brings us to 2022 right? most people who i talk to about my book project like to talk about 2022, right? so 69 years after 1953. we're now ready to talk about we're ready to have another
constitutional convention. it's coincidental that the book was published in 2021, but i'm super excited about this year as the quote unquote convention year. we're back in philadelphia. and here's some things that we that most of you will know all about some of the things that people have talked about in the new york times or in the atlantic or with the national constitution center or certainly at the robert smith center for the constitution thinking about what a new constitution would look like first of all who's going to be involved right? who's going to be part of the conversation about constitutional conventions? one of the interesting things that happened in our lifetime. is that iceland tried to crowd source its constitution around 2010 and it had a kind of a fascinating experiment in public contributions to constitutional conventions. countries like south africa did
not do that, but crowds what would you know would crowdsourcing be part of the conversation? that's super interesting. i make an argument in there that there are various ways to get the public involved one of the things that i make an argument is come from larry sabato out of the university of virginia who thinks if you hold a constitutional convention today, it's going to have to be regular citizens that are participants not the traditional lawyers judges and politicians who are generally the ones who write constitutions. so, how do how does it how do we get enough people? what's the role of interest groups? it'll be fascinating conversation. and before i talk about some of the structural design changes that i talk about in 2022. let me tell you one thing. that was a challenge to my to my 2020 imagining a 2022 constitutional convention. it was this challenge.
i had in in 1825 1863 1903 in 1953. i could use historical figures. long since dead as long as i made the argument that they would have argued particular things that their various conventions i could use everybody from daniel webster to booker t, washington. i have gerald ford of all people being the president of the 1953 constitution and that the constitutional convention and that kind of catapults him to be eventually president of the united states, right, but in 2022, i can't use historical figures. i have to use real figures. so one of the challenges i faced was i had to get on the horn get on the phone with folks who i thought might be invited to the constitutional convention and asked them to participate as a delegate, right which was super interesting. so the two gentlemen that you see here on the top is douglas
banks, right? he's a baptist minister from philadelphia, and i i created the narrative in which he is the presiding officer. he's the president. he's the george washington of of the constitutional convention and what made him the george washington or the president is that he's the fifth generation to send it of sally hemmings and thomas jefferson, and i thought that was totally fitting so i called him up and i said doug, do you mind never talk to him before would you like to participate in my imaginary constitutional convention and being the generous? beautiful human being that he is. he was totally psyched to do it. so he's my presiding officer. mike bruni is the guy on the bottom. he is the ceo and president of the sierra club the world's largest environmental conservation group, so i called him up because there's no doubt
in my mind that environmental issues would have would be on the docket at a 2022 constitutional convention. and i said mike, would you mind being a participant in my imaginary constitutional convention? he too beautiful person says, absolutely and he and i he crafted language like he was a delegate to the constitutional convention. it was super fun as i said, so you see in my second bullet point environmental protection, obviously, there are so many things that i that i talk about in the book that you all want to no doubt get in and talk about senate reconfiguration no more undemocratic instit. in the united states than the senate where california has 40 times the 80 times the population of wyoming 40 million versus 500 roughly 500,000 and yet each get to senators. so i have the delegates thinking about ways in which we can make
the senate different. i think about i have delegates thinking about the impeachment and the recall process. and issues of a portion and same-sex marriage and gun control and a different chain ways in which you can change the amendment process because the hill is too high to climb these days with amending the constitution so all of those things are in my 2022 chapter and i'm eager to hear from you about what that what your ideas are in those sorts of things and i'm happy to talk to you about the ideas that came out of conversations i had with these and other folks like sandy levinson and others who helped me to think about what would be in a 2022 convention and i'll finish my presentation by talking just for a second about the preamble. there is no question in my mind that if you sat down with
hundreds of delegates to a constitutional convention back in philadelphia in 2022, our preamble would look different. the new drafted preamble would look different and what i do and one of the things that that a lot of countries have done in their preamble preamble's is kind of given nod to their to to their horrible past right so i crafted a preamble and i'm going to show it to you as a way to finish up. it looks like this. this is what i would argue would be could be a constitutional preamble in a 2022 constitutional convention. we the people of the united states in order to form a more perfect union establish justice and acknowledge a history of injustice ensure domestic tranquility provide for the common defense. remedy the wounds of systemic prejudice other institutional forms of discrimination slavery's persistent legacy and the destruction of indigenous nations and native peoples
promote the general welfare endeavor to achieve greater equity and secure the blessings of liberty to all do ordain and establish this constitution for the united states of america. everybody probably could craft a different constitutional preamble. that's the one i did. i write in the book, but i'm eager to hear what you have to say about that too. finally. i'll finish by saying this was late. the book was a labor of love. there is nothing greater. i can imagine in my own professional life than to imagine what constitutional conventions would have looked like throughout american history if jefferson had been able to persuade madison and others about generational constitutions, but i also recognize that if you have a hundred people in the room talking and doing this experiment in speculative history or counterfactual history, you're gonna get a hundred different constitutions. everybody has a different idea about what their constitution would look like. i hope mine is at least
credible. my the ones i describe or at least credible, but as i said before everybody's going to have a different one and on that note. i'm eager to hear what yours look like. and i'll stop the screen sharing. excellent. okay. thank you, and i've already got a few great questions queued up, but folks please feel free to keep those questions coming. so i think the there's kind of a first series of questions that are almost nuts and bolts so, you know thinking through. the historic conventions that you talked us through who would have chosen the delegates for one and would these conventions have been called expressly to amend the existing constitution or is there any concern that? any one of these conventions could have taken a leaf from madison and his friends and scrapped it and started over.
so those are a couple questions there and then i also have a question with regards to to ratification. yeah. so how how do you think each of these could constitutions would have been ratified in their in their given years? so that's a lot of questions at once. but yeah, so i'm writing them down so i don't forget okay and ratification. uh fantastic questions good nuts and bolts questions, and i i make i do write about this a little bit in the book in order to kind of situated so so before 2022 and if you imagine jefferson's periodic constitution's happening in 1825 of 1863 1903 1953. it is likely. that state legislate tours would have still picked their delegates. right in those four. no chance. i think there's no chance that
state legislatures would be giving the power to do. so today in 2022, but up until 1953. i think it's pretty clear that state legislatures would have been as good as any other body to pick the delegates. i also make the argument that you know, how are you gonna figure out how many people like how many delegates come from each state and i have little formulas in my and my book that say, you know, here's how it would have worked most of the time certainly 55 delegates would not have worked even as close 1825 because there's lots of states added so it creeps up a little bit to eventually be in the kind of mid 200s and then by 2022 i argue that there's a reason why there's 500 13 and you can you can figure that out by looking at the book so but state legislatures up until 1953 likely would have been in terms
of fascinating question in terms of sort of pulling a madison and scrapping the constitution and starting over again. so so jefferson, i take a little bit of liberty with jefferson. it's fairly clear that jefferson thought that coming together just to amend the constitution was good enough, right, but that's not so much fun. right? so ultimately i i kind of take what jefferson said and imagine real constitutional conventions where they could fact start over again. i do make the argument though that until 2022 there wouldn't have been hugely radical design changes. because things were working relatively. okay in terms of bicameral legislatures and presidents and so on. yes, i make arguments that president, you know, you might have one term presidents that are six or eight years, but
ultimately structurally separation of powers and federalism probably wouldn't have been wouldn't have been tinkered with in the in the radical sense, but you have in in 1903 i make an argument that henry cabot lodge for example would have wanted a real significant power shifting to the president and foreign affairs, right? so, what does that look like? that's a real structural change, and i have a couple more of that 2022. that i think the senate either goes away right or is so radically different. i think there's i think there's a term limits for congress members. i think there's term limits for federal court of justices, so it would be a radical change in 2022, but maybe not up until 1953 and ratification. i love conventions. so up until 2022 i would have thought that they would have
done state ratification conventions in 2022. i make the argument that would probably be a double supermajority right 60% of the populist in a referendum boats up as long as it's 60% that's 60% represents 60% of the voting age population. so, but certainly it would have been some super majority and if you have a constitutional convention and now ratification would be a popular ratification. excellent. okay. thank you. all right. so there's so many good questions. i promise we are going to get to as many of these as possible. all right, what did you want emily? alright, so question would be conventions be open because of course one of the key pieces of the 1787 convention is that it's held in secret. so is that something that you think would have continued or is that something that eventually the public public would no
longer have tolerated? yeah, so another fascinating conversation. so another fascinating question. i make the argument that 1825 you can make a credible case that it would have been held in secret. i'm not saying i mean one of the one of the the beauties one of the virtues at one of the exciting things about 1787 constitutional convention is not only did they agree to keep it in secret but for the most part it was captain's secret right? there wasn't a lot of leakage. you don't see a lot of newspaper folks are you know arguing or claiming that there were leaks 1825 you might have gotten away with it, but i also make the argument that there were leaks in 1825 by by 1968 by 1863. i make the argument that you just can't hold the you know the -- back right and ultimately
that they agreed there were people who were very serious in 1863 about accountability in government and they i make the argument that they decide not to hold it in secret in 1863 and ultimately that leads some some other interesting challenges, but i think in 1825 you probably could keep the the keep it probably not after that. excellent. okay, and so another you all are asking such thoughtful questions. so thank you and certainly keep them coming. so question from james jefferson 1789 letter with the idea of generational constitutions was mainly motivated by the idea of not leaving the following generation with debt. so each generation would settle prior to disappearing does the idea appear in any of your hypothetical conventions.
so settling of i think the answer is no right because that's super sophisticated, you know understanding of jefferson 1789 letter. i was keeping a little bit more what i would describe as user friendly that said there's no question in my mind that in that that in the modern era there would be conversation about fiscal responsibility in a constitutional convention, right? maybe not 1953, but imagine in in at the end of the 20th century when you had all these balanced budget amendments and so on. i think it would be hard not to have a constitutional convention in 2022 and have a major topic of discussion be fiscal responsibility broadly understood and at that point i would imagine that jefferson's argument in 1789 would have come to light but no, i i don't talk about that partly because i like
the other stuff a little bit more but it is part of jefferson's argument. and i should mention mla before before you ask another question one of the one of the good things is one of the vices the virtues and vices of the book is that i had to make some choice right it can you imagine how detailed it would be if i i did five conventions, so i had to make some choices about what to cover and what not to cover and hundred people in the room. it's gonna be a hundred different constitution and constitutional stories. absolutely. i'm alright, so i'm going to kind of combine two questions here because they both relate to the same topic which is the senate so in your proposal. the senate eventually goes away because of its sort of nature is an undemocratic body, but one of the participants has pointed out, you know, rightly so that
one of the reasons that the senate exists as we know it is the in the interest of states to have something resembling equal power in one of the branches of government. so what would be the compelling reason? for for the states to decide that that's no longer something they're they're interested in so kind of those two questions. i pulled together. i hope that's okay with the askers. yeah, so so a fair enough and let me just clarify. i have one of the interesting things about doing this work in this moment is you see lots of ideas. um and in my book in the 2022 constitutional convention i make an i make an argument this comes from a conversation i have with sandy levinson who is a delegate is a law professor at the university of texas. he argues.
he's just fed up with the senate right so i may i use he is a participant he does not suggest that we get rid of the senate. so when i said eliminating the senate that's a very radical idea that ultimately i do not add to the book. i cannot imagine that that's gonna happen. right? what is interesting is some of the other options which i do talk about in the book that are more likely to happen. so two in particular. can you and i ask them as a question right? can you imagine the senate power being reduced significantly because this is what sandy sandy proposes because of the undemocratic nature of the senate so that the senate is responsible for things like confirming nominees and so on but not lawmaking you strengthen the house of representatives as the real democratic institution
to make lawmaking and you have this is what sandy proposed in my book. you have a national assembly an additional third branch of the of the legislature that looks you know, larry sabado said that you ought to have these kind of super senators who are former members of the house. i mean for presidents former vice presidents former justices of the supreme court and so on have them as part of this national assembly or the scent. so the other the other argument that's a lot of in is the argument where no you don't, you know, you don't base senate representation entirely on population, but she gives some of the you give some of the states in the senate a few more senators. based on their population. so maybe california gets five and wyoming gets one, but ultimately the senate is still around. so make no mistake.
i do not think the senate is going anywhere. secondly. i'll say this. when i had the conversation with with delegates in 2022, one of which was sandy and he's arguing that thing the one thing that i did in addition to, you know, crafting what he what these delegates were telling me my brunian environment sandy levinson's sentence and so on is i get them to make the claim as to whether they passed the the constitutional convention and sandy's radical idea of a third legislative branch. i say in the book. just too radical doesn't pass and we're ending up with the bicameral legislature. we currently have i generally think constitutional convention delegates are conservative with the small sea as in maintaining the status quo, generally so i make the argument that the senate sticks around even though it's still on democratic.
all right, so and perhaps along those lines. how do you see? the political parties being major players really in any of the conventions, but certainly that the one in 2022 because you know as we know 1787 convention party is not really on the table, but certainly has become a huge factor in how we understand constitutional government. yeah, so so there's just literally emily. no way you can avoid having partisan influence in any constitutional convention basically after 1800. so so i think parties would have been i think parties would have been major player what throughout and i i write a little bit about that in various constitutional mentions. what's interesting to me is to think about our divided what i would describe as sort of partisan tribalism of 2022 right now what that would have looked
what what that would look like do i think you know do i that a constitutional convention would have been a little bit more seamless and less controversial in say the obama years. yeah, i do then they are currently and i'm not suggesting that in the trump years or in the biden years, and i'm not picking a partisan side. it's just we're in a different environment. now, you know, i'm 55. i might look younger than i'm 55, but i'm 55 and i've never seen the country as divided as it's been now and i get you know, i i was born in 66 so vietnam and so on might have been as divided but ultimately from a from a political scientist perspective. i think a convention now would be hard and i think the parties would contribute to dysfunctional. that's why i think one of the things that's interesting is
larry sabato's argument that if you're gonna have a constitutional convention to in today, you need just regular everyday. not politicians how we get there is a totally different ball game, but if you get everyday citizens, you stand a chance of having some consensus in a way that politicians. i don't think bring to the table. okay, i'm gonna also there's two questions pertaining to the 1863 convention. one of them is a short one, which is from a participant who i know as a teacher she is looking for ideas for her students project-based assessments and she's asking if she would be able to use your ideas. for an 1863 convention so any other teachers out there you get the thumbs up absolutely is whatever you want. all right, and then also in 18? it would be a great experiment for any civics or government
classroom. absolutely and question. in any of the conventions did anyone ever propose the incorporation of the bill of rights against the states the 1863 convention run by john bingham would probably have been interested in that. yeah, so i think so. so the answer is and and when i teach my students in civil liberties as my favorite topic of conversations the incorporation, right? so what i do in there, it's a great question, but what i do in various conventions is i think about what the conversations would have been. regarding state involvement in in clause drastic, right? so so, you know to what extent what would our current 14th amendment have incorporated the bill of rights or what would how would we have changed the drafting of the first amendment our current first amendment to
to make it apply to the states, too. it's fascinating question. i think between me and you and the viewers. yes, they would have been pretty clear post in 1863 or post 1863 to include states in any language changes in the bill of rights. so i think the incorporation would have happened naturally over the course post 1863 and of course the various conventions. all right. so another there's a couple of really thoughtful points and they're not so much worded as questions, but you know, i think maybe if you would like to respond to the comments, that would be just fine. okay, so madison had the foresight to realize that stability was paramount the idea of rewriting. the constitution is something similar to changing the rules of the game in the middle of the game and you know, there's already you know, two ways of amending the constitution baked into article 5, so you know, i
wonder if you could kind of speak to to that. function in place, but you're you're proposing something radically different so yes, so you went out a little bit there and i'll hopefully i'll get the the of your statement. yeah, so so one of the things that super interesting about this experiment is you're absolutely right, right the your the individual who said the statement is absolutely right changing the rules of the game constitutions are rules right and changing the rule of game halfway through the game or in the mid part of the game. i would think that jefferson would say to you that assumes that the rules of the game that the game hasn't ended when a generation changes over right? so so if we live in a jeffersonian world we live in a
world in which there are periodic games. and it's hard to imagine in the united states, but if you think about outside the us the average life expectancy of a constitution around the world is 15 years, right? so it happens to be that ours is 230 now going on 235 years 234 plus. um, but if 15 years is the normal life expectancy of a constitution so we're the outlier. and i think ultimately jefferson just believe that tyranny could come in many forms, including one generation being beholden to another now i should mention here partly because of the fact that we're at montpelier. i'm totally a mattisonian right? i do not think jefferson was right. i do not think jefferson that we should have embraced a jeffersonian notion of generational constitution. madison was totally right about
enduring constitutions being stable for being the key to stability and legitimacy and so on so don't think just because of the fact that i'm kind of imagining jeffersonians jeffersonian world that i'd like to live in one. you know yet you're not obligated to say that just because you're chatting with james madison. oh medicine. all right. well, i think what i'd like to do. i'm gonna pose this question to you, but i'm also going to pose this as a question to the participants. so we'll get a response here as a as our last activity. all right, so the question on the table is how would the conventions get public input and how much sway would that ultimately have and i think what i'd like to ask the participants to do as dr. bestlin is considering the question is if we were to host a convention in 2022, i would love to know what
issues. would you want to see as part of that convention? so feel free to drop that into the chat and i think it would just be really really interesting to see you know, the 38 of us. what all what all our concerns are in 2022, but dr. breslin, how would those conventions get their public input? okay, so so lots of different ways right? so i imagine i write in the beginning of 2022 chapter about the different avenues for public input you could imagine for example emily to do it in kind of a traditional crowdsourcing way as in wikipedia page that where people literally get on and change the constitution and it's an evolution. it's a work in progress ultimately argue that that would not work for variety of reasons not the least of which is it's not inclusive right those who don't have the leisure time to
spend or the build technical ability to be able to go on and change the wikipedia constitution would not participate we want participants. you could also imagine i write in the in the piece in the chapter. you can also imagine an app right google came out with a with an app called constitute. check it out. look it up. it's super interesting. it's meant the google app. literally the google app constitute is meant to compare constitution around the world, but you could just as easily have a an app where people kind of in a game sort of format participate as framers and all that data gets downloaded to the convention delegates. there's a guy that wrote this fascinating book before covid on constitutional cafes where he he went around the country and he held you know like informal
cafes in formal coffees with people and ask them what they would change about the constitution you could do that and you know in a covid environment it would be a little bit different you can have caucuses. i'm making argument that the traditional caucus sense where individual parties get to, you know people with similar interests partisan parties get together and craft ideas might work really well because you as a kind of preliminary ultimately though. i'll say this constitutional conventions tend to gravitate to the traditionalist, right? we tend to like constitutional conventions around the world the state level or around the world where people meet delegates are assigned. they're actually in a room together. they craft it together the question for all of us and i'll end on this note. the question for all of us is
who would be invited. that's the ultimate question assuming it kind of a traditional constitutional convention, which we could hold at montpelier if we had two or three hundred people, that would be super fun and a very appropriate place to have a constitute 2022 constitutional convention. i'll be pretty pretty amazing. that's for sure. all right. well, and i would love to shout out some of these really excellent inputs from our participants. so in our 2022 convention at montpelier, why not? some items on the table for discussion. we have a lot of interest in term limits for the supreme court justices at least three people listed that um, the the extension of the social safety net. we have elimination electoral college. public financing of political campaigns gerrymandering is a concern balanced federal budget. and true equality of gender pay
medical care and humane treatment. so there's a lot of really fascinating ideas. oh and also a revisiting of the first amendment and more clarity and separation of church and state so many good ideas. so you know, i think if we were actually at montpelier certainly for a convention we would have to be there for some time in order to address all these concerns but participants. thank you so much for your really thoughtful questions this evening. i'm sorry. we didn't get to every single one of them, but i would certainly encourage you to pick up dr. breslin's book and read if in further detail about these different conventions and if you are looking for a great dinner discussion certainly put forward to your friends your family. hey, if we were to hold a convention in 2022, what do you think just seems like a great way to kick things off. so, thank you all so much and thank you dr. breslin for your time this evening. c-span has hundreds of programs
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