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tv   Beau Breslin A Constitution for the Living  CSPAN  May 30, 2022 11:55am-1:01pm EDT

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so without further ado i will very happily introduce our author this evening beau. breslin is the joseph c. palom mountain junior chair in government and the former all right without further ado i will very happily introduce our author this evening, beau breslin is the chair of government and the former dean of faculty, vice president for academic affairs at skid moore college up in saratoga springs, new york. he holds a ph. d. in constitutional thought from the university in pennsylvania. he is the author of the communal therrien constitution from words to worlds, explore
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unconstitutional functionality, which was part of the john hopkins theories on constitutional thoughts. his latest work, which is why he is here this evening, a constitution for the living. imagining how five generations of americans rewrite the nation's fundamental law, which came out last year. in addition to writing about constitutional issues he has also published work on capital punishment, restored of judgment, and legal philosophy. i am very excited to hear from dr. beau breslin this evening, it is such an interesting topic! i feel like oftentimes we have had scholars come on constitution one-on-one and look at every angle of the constitution as it exists. i think your book is so interesting of a thought experiment! i will let you take it from here and explain how you have kind of thought through this process of the idea of a constitution for the
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living. >> thank you so much, emily. i really appreciate the opportunity to chat with you and all of your listeners, viewers. i want to thank the smith center for the constitution at james madison's montpelier. it's kind of a homecoming for me. i was there at the beginning of the birth of the center and, it is really nice to get back. thank you to all of the viewers. happy martin luther king day to everyone out there. as emily mentioned, my book is different. i want to, i will describe how it's different in a second but i want to start by saying but i set out to do was contribute to a conversation that has picked up steam as of late. that is the conversation about whether or not it is time to return to philadelphia and rewrite the constitution but i'm going to do, hopefully we will get through this quickly. without being irresponsible i have about eight slides and i want to show. you and the idea is to describe with the book is
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about and then go through each of the slides. provide as much time as possible for the folks in the audience to ask questions, or comments. people generally like to talk about what's constitutional reform should look like. i want to eagerly get to that. i'm going to share my screen with you, assuming this all works. as i said i had a couple of slides i wanted to get to. let's start by doing slideshow -- okay! let me describe for you what the book is about. emily mentioned it's called a constitution for the living. it takes a simple debate between thomas jefferson and james madison and kind of
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imagines a different world, right? i am a constitutional theorist, i am very interested in constitutions. as most of you know madison, in 1787, father of the constitution he was writing the constitution. he has great admiration for jefferson. when he is done with the project in september of 1787, he ships off a copy of the constitution to jefferson in paris. asked jefferson what he thinks about the constitution. they get into this two-year correspondents back and forth about the virtues and vices of the draft constitution. jefferson right back to madison and says, i like certain things about the constitution. one thing i do not like about the constitution is there is no sunset clause, right? what he meant by that is there is no mechanism for the constitution to be re-written at various times. he writes this famous line, this famous statement that the earth belongs and is for the living. the dead have neither powers nor right over it. jefferson
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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. he and madison went back and forth about generational constitutional change. jefferson being the mathematician. he does all of these calculations and decides that every 19 years, that is when it generation turns over. every 19 years the constitution ought to be re-written. madison writes him back and says no, no, no! that's not -- that doesn't work! constitutions must endure over long periods of time in order to have the necessary strength and stability, credibility, so that the
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country that the constitution is constituting its stable. they, throughout their lives, disagreed. jefferson forever, the entire period of his life thought that each generation ought to write their own constitution. madison was a fan of enduring constitutions. what my book is, it's a simple counterfactual. one with those constitutions look like if madison had been convinced that generational constitutional change was good. what would the constitutions in american history look like if jefferson had won that debate? what i did was i imagined, in narrative form, five constitutional conventions. i write the stories of those constitutional conventions and the
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constitution that are drafted during that period. a couple of ground rules before i get to the constitutional conventions, first of all jefferson argued that each constitution convention ought to occur every 19 years. for him that is kind of the changeover moment for a new generation. that was a little indulgent for me, to imagine a constitutional convention every 19 years! there would not have been that much change. it just seemed that that was a little bit too much. i did take the spirit of jefferson's constitutional idea and i identified the life expectancy of those people at the time of the constitution. i situated the constitutional conventions based on life expectancy. you will see that i have five constitutional conventions that come after 1787. 1825, 1863, once in 1903, 1953, and 2022. those are based on life expectancy of the average person at the time. in
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1787 the average life expectancy of a white male was 38 years. i imagined a constitutional convention 38 years from 1787, 1825. life expectancy did not change in 1825, it's still 38 years. fast forward 38 more years and what you have is 1863. life expectancy is a little bit longer in 1863, 40 years. so the next constitutional convention was 1903. 50 years, 1953. and in 1953 the average life expectancy of the american citizen was 69 years. which means that the constitutional convention would've been 2022, this year. super exciting that it aligned nicely with this year! what are my, what if my
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data? i can't make things up! it wouldn't have been a credible experience if i made things up. i used state constitutional conventions, state constitutions. there were 155 different state constitutional conventions in our history. they provide a wealth of insight into what's constitutional convention conversations would've looked like in various times of american history. they are at the state level, nationalizing them would have been a little different but state constitutions and state constitutional conventions talk about the same things that federal constitution would've talked about. power, rights, liberties, all of these things like that. values, and so on! i took that as part of the data. constitutional amendments, supreme court cases. these were all part of the story that i drafted for each individual convention. as i write in the
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bottom here, my conventions the various chapters are in narrative form. they are storytelling. a talk about people who were alive at the time and would've been invited to the constitutional convention. what they stood for, and so on. without further ado let's get into it! the first constitutional convention is 1825. daniel webster is the gentleman on the right side of the screen. there is no question in my mind that daniel webster would've been a major player, a delegate from massachusetts. he was obviously, he was the foremost lawyer at the country at the time. he absolutely would've been part of a constitutional convention. i make it clear in my riding that every constitutional convention will be in philadelphia as a nod to the original 1787 framers. what they would have talked about in 1823 are various things, right? including electoral college reform. why? because the 1824
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presidential election, the one that gave us john quincy adams as a president, was a bit of a disaster! it was the second presidential election that was thrown to the house of representatives. the 12th amendment worked to sort of, but not completely. so the electoral college would've come under scrutiny in 1825. if you combine sort of the thinking of electoral college being tinkered with a little bit. i'm not suggesting 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 jacksonian era that we were
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entering. i make an argument that the electoral college would have looked a lot different after 1825. they would've eliminated the state legislature from selecting delegates. it would've been much more democratized electoral college. i also argue that most state constitutions at the time front loaded their declaration with rights. we could spend the entire hour talking about hamilton and madison's argument that the bill of rights was not necessary, but it was added. it was added to the 1787 constitution. in 1825 they would've put lightly article one declaration of rights first. after the preamble, before the design of congress. it would've gone preamble, article one list of rights including some that were not in the bill of rights, article two would've been congress. i argue that in 1825 there would've been a change to federal court appointments. enough people were upset and john marshall at the time. [laughs] they would've tried to do a lot of delegates in 1825 would have
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wanted to, change the federal court appointment structure from lifetime tenure to something like -- i make an argument that the house of representatives would've 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 is the seven year probation in period. it was very common at the state model. finally in 1825, among other things, i think it would've 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, ensured
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domestic prosperity, for -- secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution of the united states. if we live in a jeffersonian world, there are generational constitution there is no need for establishing a constitution for our posterity, those in the future. as a result the preamble likely would've changed in 1825. maybe the most interesting constitutional convention would've happened in 1863, 38 years after because that is the life expectancy of the average american. note the year 1863, smack dab in the middle of the civil war. probably would prefer the constitutional convention not occurring in the civil war. it was super fun to craft a narrative story about this constitutional convention. i will talk for a moment about some of the questions that had arisen in 1863. first of all, where to hold the constitutional convention? as i said, i thought to make this
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argument in the historical narrative that we will always go back to philadelphia as a nod to the original framers. well, philadelphia in 1863 -- and i also make the claim that the conventions would've happened roughly that the same time. mid may of the year, right? so 1863, robert e. lee's army was not that far away from philadelphia. the question is, do you hold the constitutional convention in philadelphia? but i did, which was super interesting, i reached out to great civil war historian who has now at princeton, a guy named alan wells out. everyone should read his book about gettysburg. when i reached out to him he was at the time at gettysburg college. now he's at princeton. i said allen, where? here is my scenario, where my they had the constitutional convention in 1863, assuming it
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went on? would it be in, new york boston, something like that? he will be back and he said well, it probably would have the framers in 1863 would've considered columbus, ohio. and i said, columbus, ohiol? really? >> yeah, don't forget a couple things. one is they want to give a nod to those western states, west of the appalachian. two, ohio is the third largest state by population. they probably would've given some saw to columbus ohio. ultimately he said, certainly not new york. new york was very much in bed with secessionists, more so than any other city in the north. so probably they would've gone to boston. here we are in boston! 1863, the gentlemen that you see on the right are james ashley and john bingham, two famous figures who ultimately crafted the 14th
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amendment. they certainly would've been at the 1863 constitutional convention. topics of conversation would've been those that were part of the equation at the time of the civil war. slavery would've been a dominant topic of conversation. what i write is this ongoing discussion about emancipation and equal protection. what would a constitutional clause looked like in 1863, if they had had an opportunity to sit around the boston state house and craft together a new constitutional convention? no southern states would've sent any delegates, it would've been the northerners, i would've been much debate between the moderate republicans, the lincoln wigs, and the radical republicans. it would've been a really interesting debate! they
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certainly would've talked about black suffrage. and they certainly would've talked about aportionment. when they eliminate the three fifth compromise, the framers would've thought had we aportion with the eye towards eventually meaning coming together? most with the thought that eventually be union would come together again. how do we think about apportionment when we have the emancipated enslaved people. those are the major topics of conversation. obviously there were lots of other topics in the 1863 constitution. a super interesting conversation and imagining a constitution in 1863 was daunting and exciting 1903 we are back to philadelphia, right? it is now 40 years later the life expectancy as i said of americans in 1863 was 40 years.
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1903 constitution also extremely interesting. first constitutional convention to welcome people of color, right? booker t washington in the middle. possibly, maybe even likely invited to the constitutional convention. from the state of alabama, right? going through a progressive period at the time. not racially progressive, but they would've been going through a progressive period, or they went through a progressive period at the time. interestingly, as booker t washington was a bit of a so assimilationalist he probably would've been serious consideration for alabama to send as a delegate. it was unlikely that he was going to be frederick douglass, or someone who was a little bit more antagonistic. booker t washington gets the invitation
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in my story. on the right is quanah parker, all intents and purposes one of the major figures in the comanche tribe. he was a major figure at the end of the 20th century. he likely would've been invited. the guy on the left is congress member from tennessee, who i will talk about in a second, a guy named thetus sims congress member from tennessee. what would they have talked about in 1903? well, they're gonna talk about a lot of things, right? they're gonna talk about monopolies! economic collapse of 1890s. one of the interesting thing that they would have talked about in a constitutional convention in why? because it's not for almost 20 more years that the amendment comes in historical time, but the franchise for women was a fairly significant conversation for the previous
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20 years before the turn of the 20th century. they absolutely would have given conversation to it. this is where a fetus sims comes in. there is this little known sort of historical, moment or movement if you will call the southern strategy there were some white men from the south who got together with those who wanted to, mostly men who wanted to extend the franchise to women. those folks thought that one of the strategies they could use to convince states in the south to extend the right to vote to women was to it would dilute the black vote, right? you
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bring what amounts to 25 million additional onto the roles most of whom are white. they are likely to, quote, follow their husbands in voting for a particular candidate. if you add that many white women the thinking when, the southern strategy when, it would dilute the black vote i'm real congress member, he takes that to the convention and there is a moment where his ulterior motive is uncovered by a newspaper man and he has to resign from his position. ultimately franchise for women that get passed. they probably lots of state constitutions at the time had this introduced three statement that kind of resembled the constitution. it resembled the constitution of
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independence. the protection of life, liberty, the pursuit of happiness. you will see in a lot of state constitutions. so i have a book or tv washington kind of advocating that. i have a quantum parker advocating for native american land writes this is a time when teddy roosevelt were essentially eliminate or dilute the power of indigenous peoples and make them more like the white european. give them 30 or 40 acres and make them happy with this private property. quanah parker i have going to the constitutional convention and ultimately arguing against that, although he would end up losing. 1903, super interesting constitutional convention. 1953,
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50 years later the next constitutional convention comes. what you have folks that you see are thurgood marshall up on top, 1953 we are right at the heart of brown versus board of education. thurgood marshall certainly would've been invited to represent new york. the naacp is coming out of new york city. he was born in baltimore but the state in which he resigns in 1953 is new york. he is a delegate from new york. we have percival baxter, former governor of the state of maine with his dog carry on the left. he is the most famous mainer at the time although he has been governor for quite some time. he would've been, no doubt, invited. you have mary mcleod bassoon, vice president of the naacp on fdr's black cabinet,
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she likely would've been there. this 1953 constitutional convention is the first to welcome women, right? it was unlikely that women would've been invited to 1903 so 1953 they do get invited. they come while represented in my story. some of the arguments that they would have, you can imagine -- i know this interesting story about thurgood marshall being frustrated with the protection clause. this convention would have met before he argues for the second time, remember 1952, right? he argues brown races the board of education. the supreme court asked him to re-argue in 1953, but not until december. the 1952 constitutional convention starts in may. i have him
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frustrated but the equal protection clauses now holding its way. what are we going to do about that? one of the interesting debates would have been term limits for presidents. the president in 1953, imagine yes it becomes an amendment to our 1787 constitution. if you now have periodic constitutional conventions, timing is interesting, right? fdr wins his fourth term in 1944, right? he dies 82 days into his presidency. the question becomes, the way until 1953 to have a conversation about term limits knowing that you will not get an fdr someone who could stand for three or four years until after the 1953 constitution? it's an interesting question about timing. and then i have this fascinating conversation about ratification. ratification is
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one of my joys, i love talking about ratification them. when you think about the 1787 constitution article seven is simple but says this, ratification of the commission of nine states shall be sufficient for the establishment of this constitution. here is 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? what i argue is in 1825, 1863, 1903, those i argue that the convention delegates would not have asked for unanimous ratification. but in 1953 they were ready for unanimous ratification. it's interesting to me when you think about ratification, sure in 1787 all 13 states and up ratifying. but what if one had held out, right? what if in
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1825, 5 states had held out? what would've happened? one of the interesting things is when it comes to constitutional amendments it requires but conventionally three quarters of the states to ratify constitutional amendments. why do we do about the 25% who either don't vote for ratification or don't ratify it? we just say to those 25% of the states, the one quarter of the states, too bad! you were living by the constitutional amendments. there has to be a moment if you imagine periodic conventions where they are going to require a unanimous ratification. i argue that in 1953 is that year it brings us to 2022, right? most people i talked to you about my book project like to talk about 2022. 69 years after 1953, we are now ready to talk about --
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we are ready to have another constitutional convention. it is coincidental that the book was published in 2021. i'm super excited about this year as the equal uncool, convention the year. back in philadelphia! here are some things that most of you will know all about. some of the things that people have talked about in the new york times, the atlantic, or the national constitution center. certainly at the robert smith center for the constitution. thinking about what a new constitution would look like. first of all, who is going to be involved? who is going to be part of the conversation? one of the interesting things that happen in our lifetime is that iceland tried to crowd source its constitution in around 2010. it had kind of a fascinating experiment in public contributions to come situational conventions.
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countries like south africa did not do that. but would crowdsourcing be part of the conversation? that was super interesting. i make an argument there that there are various ways to get the public involved. one of the things that i make an argument is coming from larry saboto out of the university of virginia, he thinks if you hold a constitutional convention today it is going to have to be regular citizens that our participants. not the traditional lawyers, judges, and politicians who are generally the ones who write constitutions. how does -- how do we get enough people? what is the role of interest groups? it would be a fascinating conversation. before i talk about some of the structural design changes that i talk about in 2022, let me tell you a little challenge of my 2022 maddening of a constitutional
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convention. it was this challenge. in 1825, 1863, 1905, in 1953 i could use historical figures long since dead as long as i made the argument that they would have argued particular things at their various conventions. i could use everybody from daniel webster, booker t washington. i have gerald ford of all people being the president of the 1953 constitutional convention. it kind of catapults him to eventually become president of the united states, right? but in 2022 i cannot use historical figures. i have to use real figures. 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 i asked them to participate as a delegate, right? which was super interesting! the two gentlemen that you see here on the top is
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douglas banks. he is a baptist minister from philadelphia. i created the narrative in which he is the presiding officer. he is the president, the george washington of the constitutional convention. what made him the george washington, or the president? he is the fifth generation descendant of sally hemings and thomas jefferson. i thought that was so fit! i called him up and i asked, despite never having talked to him before, would you like to participate in my imaginary constitutional convention. being the generous, beautiful human being that he is he was totally site to do it! he is my presiding officer. mike bruni is the guy on the bottom. he is the ceo, president of the sierra club. the world's largest environmental conservation
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group. i called him up because there is no doubt in my mind that environmental issues would be on the docket of a 2022 constitutional convention. i said, mike, would you mind being a participant in my imaginary constitutional convention? he too, beautiful person, says absolutely! he crafted language like he was a delicate to the constitutional convention. it was super fun, as i said. you can see environmental protection as the second bullet point. obviously with so many things that are talked about in the book that you will no doubt want to get in and talk about senate reconfiguration. no more undemocratic institution in the united states than the senate. california have 40 times 80 times the population of wyoming 40 million versus roughly 500,000 and yet each get two senators. i have the delegates
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thinking about ways that we can make the senate different. i have delegates thinking about the impeachment and the recall process. issues of abortion, same sex marriage, gun control. different ways with which you can change the amendment process. the hill is too hard to climb these days when amending the constitution. all of these things are in my 2022 chapter. i'm eager to hear from you on what your ideas are on those kind of things. i'm happy to talk to you about the ideas that came out of conversations they had with these and other folks, who helped me to think about what would be part of the 2022 convention. i will finish my presentation by talking just for a second about the preamble. there is no question in my mind that if you sat down
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with hundreds of delegates to a constitutional convention back in philadelphia in 2022, our preamble would look different. a new draft preamble would look different! what i do, one of the things that a lot of countries have done in their pre-ambles is to give a nod to their horrible past, right? so i drafted a preamble and i will share with you in order to finish up. it looks like this. this is about i argue could be a constitutional preamble in 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, intra domestic tranquility, provide for the common defense, remedy
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the wounds of systemic prejudice, other institutional forms of discrimination, slavery's persistent legacy, and the direction of vintage of nations and native peoples, promote the general way fare, and ever to achieve greater equity insecure busing the belief to all, do you ordained and -- everybody probably could draft a different constitutional preamble. that is the one that i write in the book. i am interested to hear what you have to say about that too. finally i will finish by saying that 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 look like throughout american history if jefferson had been able to persuade madison, and others, about generational constitutions. i also recognize that if you have 100 people in the room talking, doing this experiment in speculative history, or counterfactual history, then you will get 100 different constitutions. everybody has a different idea
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on what the constitution would look like. i hope mine is at least credible. the ones that i describe are at least credible. as i said before, everybody is going to have a different one. on that note i'm eager to hear what's yours look like. i will start with the screen sharing >> thank you, i've already got a few great questions cuba. but folks please feel free to keep the questions coming. the first series of questions that are almost nuts and bolts. you're thinking through the historic conventions that you talk to us through. who would've toes in the delegate, for one? and would these conventions then called expressly to amend the existing constitution? was there any concern that any one of these conventions could've taken a leap from madison and
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his friends just scrapped and started over? these are couple questions there. i also have a question with regard to ratification. how do you think each of these constitutions would've been ratified in their given years? that's a lot of questions at once. >> yep so, i'm running them down so i don't forget. an ratification--. fantastic questions! good nuts and bolts questions. i do write about this a little bit in the book in order to kind of situated. before 2022 if you imagine jefferson's periodic consultations happening in 1903 1953 it is likely that state legislators but it's still picks their delegates, right? no chance, i think there's no
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chance that state legislature would be given the power to do so today, in 2022. up until 1953 i think it's pretty clear that state legislatures would have been as good as any other body to pick delegates. i also make the argument that, you know, how are you going to figure out how many people? how many delegates come from each state? i have formulas in my book that explain how it would've worked. most of the time certainly 55 delegates would not have worked, even if it is close to 1825 because there are lots of states added. a creeps up a little bit to eventually be the mid to hundreds. and then in 2022 i argue that there is a reason that it would have to be around 513. you can find that looking in the book. in terms of -- fascinating question, in terms of pulling a madison and
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scrapping the constitution to start all over again. jefferson, i take a little bit of liberty with jefferson. it is 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 kind of take where jefferson said an imagined real constitutional conventions where they could in fact start over. i do make the argument though that until 2022 there wouldn't have been hugely radical design changes. things were working relatively okay in terms of, legislature, presidents, someone. yes i make arguments that, you know you might have one-term presidents that are six or eight years. ultimately, structurally, separation of powers and federalism probably would not
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have been tinkered with in the radical sense. in 1903 i make an argument that henry kava lodge, for example, would've wanted real significant power shifted to the president and foreign affairs. what does that look like? that is a real structural change! i had it a little bit more like that. 2022, i think the senate either goes away or is so radically different, i think that there is term limits for congress members. term limits for federal court justices. it would be a radical change in 2022. maybe not until 1953. ratification, i love conventions. so up until 2022 i
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would've thought that they had state ratification conventions. in 2022 i make the argument that it would probably be a double supermajority. 60% of the populace in a referendum vote up, as long as it is 60%, that 60% represent 60% of the voting age population. certainly it would've been some supermajority if you have a constitutional convention now. population would be a popular ratification. >> thank you, there are so many good questions! i promise, we are going to get to as many of these is possible. >> i can handle as many as you want, emily. >> excellent. [laughs] question, would the conventions be open? because of course one of the key pieces of the 1787
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convention it's held in secret. is that something you think would've continued our eventually with the public no longer have tolerated that? >> another fascinating conversation. another fascinating question! i make the argument that 1825 you can make a credible case that it would've been held in secret. i'm not saying -- i mean, one of the beauties, the virtues, one of the exciting things about the 1787 constitutional convention is not only today agree to keep the secret, but it was mostly kept a secret! there was not a lot of leaking. you do not see a lot of newspaper folks 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 19 -- by 1863 i make the argument that you just can't hold the dam back, right? ultimately they agreed
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-- there were people who were very serious in 1863 about accountability in government. i would argue that they would make the argument not to hold in secret in 1863. ultimately that leads to some other interesting challenges. i think in 1825 you probably could keep it secret. probably not after that. excellent, okay. so, you are all asking such thoughtful questions, thank you. certainly, keep them coming! 1789 letter from madison with the idea of generational constitution was mainly motivated by not leaving the following generation with that. each generation would settle prior to disappearing. does the idea appear in any of your hypothetical conventions?
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>> the answer is no, right? that is super sophisticated understanding of jefferson's 1789 letter. i was given a little bit more user friendly parameters. that said, there is no question in my mind that in the modern era there would be conversation about fiscal responsibility in a constitutional convention, right? maybe not 1953 but imagine at the end of the 20th century when you had all these budget amendments and someone, 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 understand in. at that point i imagine the jefferson's argument in 1789 would've come to light. no, i don't talk about the. partly because i like the other stuff a little
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bit more. it is part of jefferson's argument. i should mention, emily, before you ask another question one of the good things, the virtues and vices of the book is that, i had to make some choices, right? can you imagine how detailed it would be -- i did five conventions! i had to make some choices about what to cover and whatnot to cover. how do people in the room, it's gonna be under different constitutions and constitutional stories. >> absolutely [laughs] all right, i am going to combine two questions here because they both relate to the same topic, which is the senate >> in your proposal the senate eventually goes away, because it's nature as an undemocratic body. one of the participants have pointed out, rightly so,
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that one of the reasons the senate exist as we know it is in the interest of states to have something resembling equal power in one of the branches of government. what would be the compelling reason for for the states to decide that that is no longer something they are interested in? those two questions i pulled together, i hope that's okay with the ask areas. >> fair enough. let me just clarify, one of the interesting things about doing this work in this moment is that you see lots of ideas. in my book, the 2022 constitutional convention i make an argument -- this comes from a conversation i had with sandy levinson, a delegate a law professor at the university of texas. he argues,
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he is just fed up with the senate, right? i used -- he is a participant. he did not suggest that we get rid of the senate. when i said eliminating the senate that is a very radical idea that ultimately i do not add to the book. i cannot imagine that that is going to happen, right? what's is interesting is some of the other options which i do talk about in the book that are more likely to happen. two in particular. i asked them as a question, can you imagine the senate power being reduced, significantly, because -- this is what sandy proposes, because of the undemocratic nature of the senate. the senate is responsible for things like
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confirming nominees, so on. but not lawmaking. you strength in the house of representatives as the real democratic institution to make lawmaking. and you have, this is that sandy proposes in my book, you have a national assembly. an additional third branch of the legislature that looks with -- larry saboto said you ought to have these super senators, former president, former vice president, former justices of the supreme court, so on. have them as part of this national assembly. the other argument that gets a lot of traction is, the argument where -- no, you don't need senate representation based entirely on population. but you give some of the states in the senate a few more senators! based on their population may be california gets five and wyoming gets one. ultimately, the senate is still around. make no mistake! i do not think
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the senate is going anywhere. secondly, i will say this. when i have the conversation with delegates in 2022, one of which was sandy. he is arguing that thing. one thing that i did, in addition to drafting what these delegates were telling me, sandy levinson, the environment, senate and so on, i get to make the claim with whether they pass the constitutional convention. sandy's radical idea of a further legislative branch, i say in the branch it's just too radical! doesn't pass. we are ending up with the bicameral legislation that we generally have. i generally think that constitutional convention delegates are conservative, small sea, as in maintaining the status quo, generally. i make the argument that the senate sticks around,
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even though it is still undemocratic. all right. perhaps along those lines, how do you see the political parties being major players in any of the conventions? but certainly, the one in 2022. as we know, in 1787, parties not on the table. but it has become a huge factor in how we understand constitutional government. >> yeah. there is literally no way you can avoid having partisan influence in any constitutional convention after 1800. so i think parties would have been major players throughout and i write a little bit about that in various constitutional conventions. what's interesting to me is to think about our divided partisan tribalism of 2022
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right now. what that would look like. and do i think that a constitutional convention would have been a little bit more seamless and less controversial in the obama years? yes, i do. and i am not suggesting that in the trump years or the biden years, and i'm not picking a partisan side. we are just in a different environment now. i am 55, i might look younger, but i am 55 and i have never seen the country has divided and his it has been now. i get it. i was born in 66, so vietnam and so on might have been as divided. but from a political scientists perspective, i think a convention now would be hard and i think the parties would contribute to dysfunctional --
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that's why one of the things that's interesting is larry saboto's argument. if you're going to have a constitutional convention today, you need just regular, everyday citizens, 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 don't bring to the table. >> okay. there are two questions pertaining to the 1863 convention. one of them is a short one, which is from a participant who i know is a teacher. she is looking for ideas for her students project based assessments, and she is 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.
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>> absolutely. use whatever you want. >> all right. and also in -- it would be a great experiment for any civics or government classroom, absolutely. a 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 the answer is, and when i teach my students civil liberties, that's my favorite topic of conversation is the incorporation of rights. what i do, and 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 clause drafting. so, to what extent would our current 14th amendment have incorporated the bill of rights? or how would we have changed the drafting of the first amendment, our current first
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amendment to make it apply to the states? it's a fascinating question. i think between me and you and the viewers, yes, they would have been pretty clear in 1863 or post 1863, to include states in any language changes to the bill of rights. i think the incorporation would've happened naturally post 1863 in the course of various conventions. >> all right. there are a couple of really thoughtful points, and they are not so much worded as questions but if you would like to respond to the questions, that would be just fine. 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 there is already
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two ways of amending the constitution built into article five. so i wonder if you could speak to that. this function is in place, but you are proposing something radically different. >> yes. you went out a little bit there and hopefully i will get the gist of your statement. one of the things that super interesting about this experiment is, you are absolutely right. the individual statement is absolutely right. changing the rules of the game, constitutions our rules. and changing the rules halfway through 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. so if we live in a jeffersonian world, we live in a world in which there are
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periodic games. and it is hard to imagine in the united states, but if you think about outside the u.s., the average life expectancy of a constitution around the world is 15 years. it happens to be than ours is 230 now, going on 235 years. but 15 years is the normal life expectancy of the constitution. so we are the outliers, and i think ultimately jefferson just believed that tyranny could come in many forms, including one generation being beholden to another. i should mention here, partly because of the fact that we are in montpelier, i am totally a madisonian. i do not think jefferson was right. i do not think jefferson -- that we should embrace the jeffersonian notion of generational constitution.
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madison was totally write about enduring constitutions being the key to stability, legitimacy and so on. so don't think just because i am imagining a jeffersonian world but i would like to live in one. >> you are not obligated to say that just because you are chatting with james madison. when i would like to do, i will pose this question to you by will also pose this is a question to the participants. we will get a response here as our last activity. the question on the table is how would the convention get public input, and how much sway with that ultimately have? i think what i would like to ask participants to do, as doctor beds lynn 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 be really, really interesting to see the 38 of us, what's all our concerns are in 2022. but dr. bezel and, how would those
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conventions get the public input. >> so, lots of different ways, right? i imagine right in the beginning of the 2022 chapter about the different avenues for public input. you could imagine, for example, to do it in a traditional crowd sourcing way as with a wikipedia page where people get on and change the constitution, and it is an evolution, it's a work in progress. ultimately, i would argue that that would not work for a variety of reasons. not the least of which is it's not inclusive. those who don't have the leisure time to spend or
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the technical ability to be able to go on and change the wikipedia constitution would not participate. we want to participants. you can also imagine, i write in the piece, you could imagine an app. google came out with an app called constitute. check it out, look it up. it's super interesting. the google and up constitute is meant to compare constitutions around the world. you could just as easily have an app where people, in a game format, participate as framers and all that data gets downloaded to the convention delegates. there is a guy that wrote this fascinating book before covid on constitutional cafes. he went around the country and he held informal cafes, informal coffees with people and ask them what they
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would change by the constitution. you could do that, in a covid environment it will be a little bit different. you could have caucuses. i would make an argument that the traditional caucus sense where individual parties get people with similar interests, partisan parties get together and craft ideas. that might work really well because it could be a preliminary. ultimately, though, i will say this. constitutional conventions tend to gravitate to the traditionalist, right? we tend to like constitutional conventions around the world at the state level where people meet, delegates are assigned, they are in a room together, they craft it together. the question for all of us, and i
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will end on this note, the question for all of us is, who would be invited? that is the ultimate question, assuming a traditional constitutional convention. we could hold it at montpelier if we had two or 300 people. that would be super fun, and a very appropriate place to have a constitution convention. >> that would be pretty amazing, that's for sure. i would love to shout out some of these excellent statements from our participants. why not. we have a lot of interest in the supreme court justices, at least people listed that. the extension of the social safety net. we have elimination of the 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. there is a
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lot of really fascinating ideas. also, a revisiting of the first amendment and more clarity and separation of church and state. so many good ideas. i think if we were actually at montpelier for a convention, we would have to be there for some time. in order to address all these concerns. participants, thank you so much for your really thoughtful questions this evening. sorry we didn't get to every single one of them, but i would certainly encourage you to pick up dr. bezel in's book and read in further detail about these conventions. 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? it just seems like a great way to kick things off. so thank you all so much and thank you
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doctor breslin and for your time this evening. the difference was that the people were told. what's the reason was, and why. i have complete faith in the american people if they now, if they have leadership.
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no one can move without some leadership. >> for the time being, you feel that we are bereft of leadership? >> yes. >> take a closer look at the spouses of our nations president, and private rhymes, and their legacies. watch all of our sleep programs online. visiting our website but we're so thrilled to be back open and to be abl


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