Air Date: 7-4-2026

Today we examine what America has celebrated for 250 years and what it keeps refusing to look at. The Declaration promised government by the consent of the governed, but the Constitution protected slavery, concentrated power in elites, and left the definition of "the people" deliberately vague. Every generation inherits that same unresolved contradiction and has to address it for themselves.

Full Show Notes

Welcome to this episode of the award-winning Best of the Left podcast.

Today we examine what America has celebrated for 250 years and what it keeps refusing to look at. The Declaration promised government by the consent of the governed, but the Constitution protected slavery, concentrated power in elites, and left the definition of "the people" deliberately vague. Every generation inherits that same unresolved contradiction and has to address it for themselves.

For those looking for a quick overview, the sources providing our Top Takes in about 50 minutes today include

Civics In A Year

THE DAILY BLAST

Brave New Foundation

Strict Scrutiny

Democracy Works

and Here & Now Anytime

Then, in the additional, Deeper Dives half of the show, there'll be more in 4 sections;

Section A, FOUNDING IDEAS

Section B, RACE & RECKONING

Section C, PRESENT CRISIS

Section D, CAPTURE & RENOVATION

And now, on to the show.

The purpose of The Preamble is to spell out the purposes of The Constitution. That's the short answer. So probably many people would recognize the opening phrase of The Preamble, "We the People."

That's still widely cited and widely known. Of course, we wanna note it's "We the people of the United States." That's important. And then the remainder of The Preamble has six particular purposes that The Constitution has, beginning in the phrase, "We the people of the United States, in order to..." So Liz, actually, at that point, would you pick up, "In order to do what?"

If you would read from there.

Yeah, "In Order to form a more perfect union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Great, so in a basic way of understanding what's going on, there are six particular purposes. "We the People of the United States," and I'll talk a little bit more about why that phrasing is important. Have these particular goals in mind, six of them. That's why we're establishing this constitution.

So let's talk about those. The first one is the union. This makes sense given the history of the United States since the Treaty of Paris in 1783, and the Articles of Confederation had been ratified in 1781. And it was not all happy, not all successful from 1781, even 1783 onward. We had won the Revolutionary War.

Treaty of Paris is an extraordinary achievement, but the self-governing of these 13 states in this union under the articles was messy. It was complicated, and there were signs it was failing. Thus, the problem is we don't have a strong enough government for the union. We don't have a strong enough union.

So that's what we've been talking about in earlier episodes with the reason to have the constitutional convention, the ratification debate, Federalists and Anti-Federalists view. So union is obvious and first, a more perfect union. We have a union. We're not making it here in this document. we're replacing, but in a sense, extending the Articles of Confederation.

So to have a more perfect union, to form a more perfect union, that co- the Constitution does that. Second, to establish justice. You could say that's a criticism of the articles. We didn't have justice under the articles. There was no, the Federalist point of view, to, to be a little blunt, is there was no there.

There was no government to the articles. It had aims to achieve justice among the 13 member states of the articles, but being more like a league or a treaty among kind of foreign states to each other, there wasn't a government to establish justice. So justice is an im- what's the whole point of politics?

To have, in the American view, to have justice. Laws that are achieving justice for individuals and for communities and other dimensions of life. Third, to ensure domestic tranquility. this also is pointing back to problems under the articles. One of the m- main motivating moments leading to calling the Philadelphia Constitutional Convention in 1787 was Shays' Rebellion in Massachusetts.

Farmers, some of whom who were veterans of the American Revolutionary War, were in such a lousy economic circumstance because of economic disorder, because the articles government was very weak. they were, they couldn't pay their debts. The money was, the paper currency was worthless. They're losing their farms, et cetera, et cetera.

So an uprising, an armed uprising out in western Massachusetts. So Here are, three pretty basic aims of the American conception of government. We're forming a union. We want justice. Why are we forming a union? To have justice, and part of justice is domestic order and peace and- tranquility. So here are three very basic aims of the American conception of politics in 1776, right? Then the fourth one, c- common defense. we're going, we're gonna ensure domestic tranquility with this Constitution. We're also gonna provide for the common defense of all the member republics, and they're thinking there will be more states a- added.

So this goes back to Montesquieu, and the i- w- major reason to have a federal government, to form a federal union, is for republics, which tend to be smaller than monarchies or obviously empires. They band together to form a, a federal government, a union, to provide collective defense, in a way.

That was the reason why the Articles of Confederation used that phrase, which is a term we think of today related to treaties.

The articles of a treaty, one independent foreign government with another, right? So this was a major reason for the, the Articles of Confederation, except it was just too loose.

it was not a real government. Okay, next, to promote the general welfare. This is a really interesting phrase, signaling in relation to union that this is a real government. This is not like the articles of league- ... a treaty between very sovereign, independent, separate governments. There is a general welfare of the United States, of the union as a whole, and general welfare is the thing that state governments do and did.

The f- the p- the technical phrase we use in political science and constitutional law is the police power of the states. The states had plenary powers as sovereign governments to address health, safety, welfare, morals of- So general welfare, that's a really interesting one, to, to promote the general welfare.

And then the last big, long one, "Secure the blessings of liberty to ourselves and our posterity." So this is a ringing phrase, very typical of rhetoric of the 18th century and earlier, to have a ringing conclusion, the blessings of liberty, not just to secure liberty, but to secure the blessings of liberty.

and it's for ourselves, and we want this to last. we do this, we form this partly for ourselves and for generations after us. So those are three... I'm sorry, those are six really, pretty big, pretty fundamental aims about, about a new American political order That, that are the objectives, fundamental aims of American politics

So Dr.

Cruise, you and I did some episodes on the Declaration of Independence, and this conversation feels familiar 'cause these ideas sound similar to the ideas in the Declaration of Independence. Is that correct?

Yes, indeed. and you, in a way you could say the function of the preamble as a whole is to connect- the Declaration to the Constitution. This is a major point of contention in the ratification debate coming from the anti-federalists. Are we betraying the principles of the Declaration by setting up this very powerful government, say the anti-federalists, right? What about consent to the governed? What about rights a- and especially liberty of individuals, right?

So then the federalists have their argument. "No, we, we're actually securing the rights and liberty invoked i- in the Declaration because we're providing an adequate government, adequate layer and complexity of government to achieve those ends." So the Declaration is central here, and I think that's the reason why you get this ringing phrase at the end, the blessings of liberty, which invokes the grandeur of the, the opening two paragraphs of the Declaration, and then the final paragraph with its ringing conclusion, right?

We mutually pledge- f- to, to stand for these principles and to stand for our liberty. We mutually pledge our lives, our fortunes, our sacred honor. So there is a connection, but there, there is also s- something different happening here. We tried it once with the articles.

Didn't quite work. So the, a big change with the preamble is to start with "We the people- And who is this people? So I would read the declaration as saying, it's the same people," because the declaration is from the representatives of the 13 now states. They're not colonies. It's the representatives of the states.

Who are they representing? They're representing the people of the states, but the word people in the declaration is used at least in, in plural senses, but very definitely in the sense of one American people. So there's an implicit federalism in the declaration, and that's being translated into this first phrase of the Constitution, "We the People of the United States," so crucial change from the articles.

This is not we the states-

Yes ...

as the articles. The title of the articles of Confederation is the Articles of the Confederation between, and then it lists the names of all the 13 states, right? No, this is We the People of the United States, and you... And it's got this plural mean- which people? Do you mean the peoples of the independent states?

Yes, it means that. But we the peoples of these independent states have given up crucial sovereign powers to this new government, and we form a people, an American people, in a deeper sense than we did under the articles. And maybe the declaration calls for that, but now we are definitely doing it.

we're establishing it in very concrete terms.

So on Wednesday night, Trump's Great American State Fair had something like a launching event. NBC News put attendance at more than 1,000. Not great. The Post said the crowd thinly covered an area that's smaller than some summer outdoor movie screenings.

Really not great. Matt, can you just set the stage here? What was this particular event, and why was it so important?

This was the kickoff event for what's called, the Great American State Fair. The idea is to create what's, effectively a world's fair, but for each of the individual, states, down on the National Mall.

originally, this was supposed to be a, big concert, with a bunch of different artists who were scheduled, to play. but, as it became more and more clear that these Freedom 250 events are extremely partisan, the artists, decided to drop out. and it, eventually Trump threw up his hands and said, "Instead of having this concert, we're going to launch, the state fair with," what he called, "The greatest rally ever."

it doesn't seem to have worked out that way.

Certainly not, and Donald Trump himself seems very sensitive to the low turnout that this first event showed. Here's what he said at the event about that. Listen.

Then on July 4th, we will have the greatest show of all on the National Mall. Your favorite president will be speaking.

So please show up Because if we have two empty seats, you know what's gonna happen? The fake news is gonna say, "He didn't fill out the arena." Now, I'll be speaking, I'll be very proudly speaking as we ring in our 250th year with the largest fireworks display in world history.

Matt, you know he's not exactly wrong.

We damn well will make an issue of this if turnout really is bad, just as we're doing right now. But there's actually a reason for that.

He tried to turn a celebration of America's 250th birthday into a Trump rally. This is like the epitome of personalist rule, turning this into, an imperial, dictatorial display of self-glorification.

It's important that Americans reject this and not show up to this. can you talk about that?

I think what we have here is a president who does not respect any sort of separation between himself and the country at large. and so he views, the idea of celebrating, the nation's birthday as one and the same with celebrating himself.

I think there's no clearer way to see that than how he decided to, kick off the festivities with what he personally described as a rally speech, a partisan speech in which he ran down what he claims are his accomplishments, and talked about himself, rather than the nation, rather than what brings us together.

And that becomes more and more fraught, as he becomes more and more unpopular.

So yeah, and Fox News is really participating in the kind of personalist side of this, hyping this event as a great thing for Donald Trump as opposed to a great thing for the United States of America, and Fox is using this event to attack critics of the president.

Let's listen to a few examples. Here's Kayleigh McEnany.

I'm very excited about tonight because Trump has said this is going to be the greatest rally he has ever done. And I've been to a lot of his rallies, but if he's saying this is the greatest rally he's ever done, I'm here for it.

Now let's listen to Fox contributor Joe Concha.

There's one party it seems, Jesse, that is patriotic, even jingoistic about the United States of America, and then there's another party that is as angry as Rosie O'Donnell and George Conway. they are equally as petulant. they are downright miserable about the country if not themselves.

And now let's listen to Laura Ingraham.

So the entire lead-up to July 4th, I consider it one big trigger warning to the Mamdani minions out there, because after all, they're happiest when foreign flags are flying. Because to them, red, white, and blue, the big extravaganza, is like sunshine to a vampire.

Matt, before we get into what all that means, can you walk us through how Fox has been hyping this and what they've been saying in addition to those three there?

There was a big push, leading up to Trump's speech on Wednesday night from Fox to put as much attention on it as possible. several hosts did their shows, from around, the National Mall. it was a, it's been a tough- few months for people who have to carry water for Donald Trump every night.

And I think the idea here was, that this would be an easy win for them, that they could, focus on what they love to do, bashing Democrats, calling them unpatriotic, saying that they hate America. they, spent a bunch of time using the, New York, primaries and the victories, by more progressive candidates there as evidence of this.

and basically, they're trying to use what should be a celebration of, the Declaration of App- Independence, of America's 250th birthday, as a partisan wedge issue, as a cudgel, against, the Democratic Party, while simultaneously talking up Donald Trump and his ability to, pull a huge crowd, and, get them, together for a, big rally.

So the failure, I think, of the kickoff event, is I think a pretty big problem, for them in the medium term as they try to keep that message going, over the next 10, 12 days.

It isn't just that Fox is being partisan and using it as a cudgel against Democrats. Fox is all in on this more sinister project, which is to make the celebration of the United States of America's 250th anniversary synonymous with the celebration of Trump himself.

So they're all in on the personalist kind of dictatorial cult-like nature of what Trump actually wants to do here. You have watched Fox News for a long time. They are very willing participants in that project. Can you talk about that sort of more sinister goal that they seem to be pursuing?

Yeah, they are the propagandists for Donald Trump.

They are the people who, get the base rallied, that get them, excited, terrified, ready to, march to the polls, in November. And if that doesn't work, who knows, really what comes next. They have access to their own network's polls, which show that he is very unpopular on, literally every issue.

but they very rarely talk about that. They very rarely talk about the, worst findings from those polls. they won't talk about, when he gets booed at a Knicks game. They'll pretend that doesn't, that hadn't happened. and I think what underlies all of that is this idea that, because Donald Trump is really so popular, the polls showing otherwise are all fake or discounted.

What that means is that the only way you can get election results that don't show him winning, is through fraud, through rigging. and so by, refusing to, help their viewers come to grips with the reality that, the public at large is not on board, with what Donald Trump has done, they're really setting the stage for any effort, that the president takes, to subvert the results, in November.

And that, I think, is the most worrying aspect of this.

I started out writing a book about, Jefferson. I, we had just m- when we moved to Vermont, we'd bought this house in Vermont. In the attic, we found this 20-volume set in pretty bad shape. uh, nobody had, I think, opened the attic since 1930.

But it was this 20-volume set of the collected writings of Thomas Jefferson that has only once ever been published in 1909. And I spent the next year and a half, two years reading it, his letters, his personal diaries, his, just, there's just incredible stuff in there. And so I wanted to write a letter about, or a book about Jefferson's vision of America and how America has become since then, which started out as this book.

In fact, the first couple chapters are about Jefferson's view of America and commons and why, the founders and all this kind of stuff. And as I was moving along and reading other histories along with Jefferson about the history of the United States, because I wanted to make this a big arc book, I read, for example, Charles and Mary Beard's famous 1932 History of American Civilization, which was probably the, the most important historical work written in the first half of the 20th century about the history of the United States.

and more recently, David Korten's When Corporations Rule the World, which came out in the late '90s. I was doing this in 2000. I started researching this or writing this book. It was in '99 I s- really started, but 2000 I was banging out outlines and things. And they were all saying that in 1886- In a Supreme Court decision called Santa Clara County versus Southern Pacific Railroad, the, railroads had come into the court, had come to the Supreme Court and said that because the way that their property taxes were being assessed in Santa Clara County was different than it was being assessed in Santa Ana County, that was a form of discrimination And this is 1886.

In 1873, 13 years earlier, the 13th, 14th, and 15th Amendments had been ratified in, following the Civil War, stripping slavery out of the Constitution. And the 14th Amendment explicitly says, "No person shall be denied equal protection under the law." In other words, you can't run a lunch counter and say, "White people can sit here, but Black people can't," for example, or whatever.

you're entitled to protections under the law, but this other person isn't. So historically, going all the way back to the seventh century in England, all of British common law and early American law, identified two types of persons at law. These, this, these very precise legal definitions.

There are natural persons, which is you and me, and there are artificial persons, which is corporations, churches, and governments. And they had to have... This latter category had to have some sort of person status so that they could pay taxes, they could own land, they could enter into contracts, they could sue and be sued, these kinds of things.

And they were always differentiated. But the 14th Amendment doesn't say natural persons. It says persons. So the railroads came in and said, the 14th Amendment says persons. We're being discriminated against. We're getting different levels of taxation in two different counties, and that's unfair discrimination.

It's illegal discrimination." And, w- you know, this is an argument that they took to the Supreme Court. And in fact, in the Ninth Circuit Court here in California, Stephen Field was the Supreme Court justice who also was the Ninth Circuit justice. He agreed with them, and he said, yeah, corporations are persons.

They're artificial persons, but they're persons. The 14th Amendment only says persons, and so th- this is illegal discrimination." Now, keep in mind, we still had, legal apartheid in the United States, and women couldn't even vote yet. But nonetheless, they said, "This is legal discrimination.

We've gotta give the railroads these rights." And they kicked it up to the Supreme Court. So I read in all these history books that in this 1886 case, the Court gave corporations the rights of persons, and ever since then, they have been using those rights in pretty nasty ways. They've been using the, the, f- Fourth Amendment right of privacy to say things like, "We don't have to tell you what we know about asbestos and tobacco.

uh, our books are no longer open to, to, to the public." They've been using the Fifth Amendment right against inc- self-incrimination to say, there may be something going on, but we don't have to tell you about it." They're using the 14th Amendment right of equal protection to say, "You can't keep a hog farm out of our neighborhood or a Walmart out of our neighborhood, 'cause that's discrimination," and so on.

And the f- and the First Amendment is the one that just got argued. And, at the Supreme Court building. So I went down there and found, uh, Paul Donovan is the guy's name, who was the head librarian there. And, said, "Paul, I'm looking for that 1886 case where corporations became people." And he says, "Oh, you mean Santa Clara County versus Southern Pacific Railroad."

I said, "Yeah." And so we go back in the stacks, and he finds the original 1889 bound, Brooks and Biddle or whatever it was, published in New York book. And pulls it off the shelf, and blows the dust off it. And opens it up and says, "Okay, here's the commentary on the case, the head note, and here's where the case begins right here," and it runs, 16, 18 pages.

And so I sat down and I read this case, and there were all these arguments about fence posts and taxes and how it should be done, and you get to all ... the very end of the case, and you can read this online, it's, it's at the Supreme Court website. You get to the very end of the case, and the judges say, "There were also constitutional issues that were presented before the court."

I'm paraphrasing here. "There were also constitutional, issues that were presented before the court, but we didn't need to address them because we were able to find the specific remedy for this case in California law So I'm going, "Wait a minute. This doesn't say corporations are persons. It doesn't even say that there's anything about the Constitution in this case."

So I went back to Paul and I said, "Paul, this ... I think I got the wrong case here." And he says, "No, I'm pretty sure that's the right case. and you got the library f- librarian for the Supreme Court keeping up this case." And so he comes back over with me and he says, "So did you read the headnote?

Maybe that c- ..." I think he thought I was skimming it, And he said, "So let's check out the headnote 'cause that's a guide to the case. It's a commentary written by the clerk." And so we flip back two pages to the headnote, and the first paragraph of the headnote says, "Corporations are persons under the 14th Amendment and entitled to equal protection under the law."

And he says, there it is. Okay, so it's got to be in here someplace." And I said, "No, wait a minute. Look at this." And I flipped the end and said, "Read that paragraph." And he reads it and goes, "Whoa." And I said, "What does it mean?" He says, "I don't know. You need to talk to a lawyer." So I paid my 75 cents and got copies made and went around the corner to a friend of mine who was a lawyer and said, "Jim Ritvo."

And I said, "Jim, I want to talk to you about Santa Clara County versus Southern Pacific Railroad." And he says, "Oh, you mean when corporations became people." And I said, "Yeah." And so I laid out the papers on the table and I said, "Okay, here's what it says in the head note. Here's what it says in the decisions."

And he looked at it, and he was like... he said a word you can't say on the radio or on television. and with holy before it.

And, I said, "What is it?" And he said, "It's a mistake." Ah. He said, "The head note contradicts the decision." So I thought, "Oh, w- we've got it." We can bring down the whole corporate edifice.

if. one of the cool things about living in Vermont, in a little town like, in a little state like Vermont, is when you call the Secretary of State's office, she actually answers the phone. And he says, you need to call a constitutional lawyer, somebody who really knows this stuff.

You ought to call Deb Markowitz." And so I called up, and Deb answers the phone, and I said, "Deb, you don't know me, but I had your sign in my front yard last year. And, Ah ... we have some mutual friends and I'm wanting to talk about the 1886 Santa Clara case." And she says, "Oh, you mean the one where corporations became people."

And I was like, "Yeah." So I shared that with her, and her response was very similar to Jim's. And I said, "Does this mean that we can just, take all this away? all this power that these corporations have gained over the years by claiming that they have rights instead of just privileges?" And she said, unfortunately not, because there have been at least 30 cases, Supreme Court cases, that have referenced the head note."

and she said, "The Court could reference Donald Duck, doesn't matter, once they decide something. So while that case might not be precedential, the precedent, there are other cases. the next case became the precedent." So I've been on a campaign since 2002 when I wrote the book- ... to inform Americans about the fact that the Court never said this.

Just with respect to the people who are asking Can they do this or can this happen? making this book available now reminded me of an episode we did earlier this year with Kim Scheppele, who talked about protesting authoritarianism and- Yeah

autocracy in Hungary, and people did so just by quoting laws and- Yeah ... their constitution. Yeah. And so making this information accessible to people is a way of empowering them- Yeah ... and also to enable what, academics call popular constitutionalism, where people can make claims about the Constitution, and in so doing, influence what the Constitution means, right?

shape its meaning.

No, I think that's exactly right. and, it's not just, reading the text. you could get one of those- Yes ... free constitutions and read the text, but I think what this does in providing sort of a clause by clause annotation and also history around how- Yes ... some of these various provisions came into being, it reminds us that we're not the first to make claims on the Constitution.

this isn't an unprecedented enterprise. Lots of members of the public have made claims on the Constitution before and have shaped constitutional meaning. I... we talk, m- I think the founding is very overdetermined in constitutional law and theory. the reconstruction amendments, less overdetermined.

but we rarely talk about the amendments from the Gilded Age. So this is the 16th, 17th, 18th, and 19th amendments, and they're literally born in this fervor of populist unrest. people are mad at the turn of the century about the fact that, oligarchs are running amok, and they...

There's this huge consolidation of wealth, and the American government is raising revenue by imposing tariffs, and the working class hates it because it's regressive, and they bear the burden of it disproportionately. They want an income tax to make the wealthy pay their fair share. They can't, because Article One prohibits it.

So they start agitating, and there's a Supreme Court decision that makes it impossible to have an income tax, and they start agitating against that, and ultimately they get the 16th Amendment, which changes Article One in order to allow for Congress to levy an income tax and to do progressive taxation.

And that is borne by the people. The 17th Amendment is the popular election of senators. They get screwed up a little with the 18th Amendment and prohibition, but then they come back with the 19th Amendment, where they literally double the size of the electorate by enfranchising women, and that's all through popular agitation and activism.

And just on that 17th Amendment in particular, you mention this as a kind of underappreciated space of constitutional change and empowering people. imagine if people knew more about the 17th Amendment and the history- Yeah ... behind it, because the 17th Amendment said state legislatures aren't going to pick senators.

People are. Yeah. I think that understanding that history and what it was getting at provides yet another angle-

For

gerrymandering To understand why- Yeah ... to understand why Kelly is so problematic, right? Because the idea that, okay, state legislatures can't pick senators, but- Yeah ... they get to pick effectively your- Totally

House delegation- Yeah ... by extreme gerrymandering, right? you are allowing people to see connections and understand- Yeah ... and to create, our story as a people, and that's just super important.

It's exactly right. I, I said gerrymandering because I view Kelly as the confluence of this interest- Yeah

in partisan gerrymandering, this new entitlement to- Yeah ... partisan gerrymandering- Yeah ... with the longstanding effort to disenfranchise minority voters. And, there is this period at the turn of the century where people are just like, "No, we wanna do it." And it actually starts at the state level.

they actually get what is effectively popular election of senators i- in many states before there's this formal amendment. And, and that's- Yeah ... a lesson too. this happens- Yeah ... with the 19th Amendment where they enfranchise at the state level women even before there's national enfranchisement.

These things can happen incrementally. Some change is better than none.

Yeah, and this is- Yeah ... that's literally exactly what I was gonna say, that the s- the story, the state level sort of origin story about the 17th and the 19th Amendments, I think just, is an important reminder right now. Big national- Yes

change often, and maybe more often than not, starts with small local and state level change. And to a point you made on our last episode, Melissa, quoting Sherrilyn Ifill, like- Yeah ... this is a very long game we are playing right now. Yes, yeah. But making small incremental change, again, state and local change to our electoral system and otherwise, those are the building blocks of federal change and constitutional change, and that's where we have to be working right now.

Yeah. I, I think I said something like, our children and grandchildren will rest under the shade of trees they did not plant and drink- Yeah ... from wells they did not dig. I, I have no illusions about whether or not we are going to see this kind of change in our lifetimes, but I'm perfectly happy to be committed to doing the work now because this book shows.

there were people who didn't live to see the fruits of their labor, but we are living with the fruits of those labors now. And, that's okay, too.

Yeah.

Yeah. okay. So here at Strict Scrutiny, as you may know, we've always been upfront that we're not coming at the law, from a place of neutrality.

It was really, one of the founding premises of the podcast. And we think it's important to have honest, irreverent, sometimes bleak, hopefully still engaging and fun conversations about the Supreme Court and the Constitution. And the book seems to be doing something similar, but in a very different format and register.

So how did you find it balancing historical narration with your own commentary in an annotated guide like this, and how did that tension shape the way you structured the book?

So I actually, I, I did another podcast interview about the book, and the person was like, "This isn't like strict scrutiny in a lot of ways."

it, there, it's, there are no cuss words here. And I was like, "That's true. True." that's very fair. I did think I tried to be a little more, straight down the middle. you know- Yes ... here's what one person says, here's what another person says. Yeah. In part because while I would love for more modern readers to be of our view, I just actually like more modern readers to recognize that we're really going off the rails in terms of how we think- Yeah

about constitutional culture, and just, actually get engaged. And so however you choose to enter this space, I'm just happy to be the conduit. But there were some things that I think I couldn't be neutral about. And, one of them was that I was very forthright about the way in which slavery is never explicitly mentioned in the original Constitution, but it is literally all over the page.

Yeah. it's almost like a palimpsest. And the compromises they make, we talk about this, in constitutional law to some degree, but I don't even think we even scratch the surface of how durable the compromises over slavery really are and how, transformative. the whole idea that they're, like, making this bargain.

you get 20 years to keep importing slaves. Are you good with that, Southerners? is that gonna be enough? And then we're gonna have Congress pass a law in 1808, and we're gonna make it so no one can come and amend the Constitution before 1808 to keep you from enslaving people. We're gonna do that for you, and then we're gonna stop the enslaving, right?

And they're like, "No, we're just gonna shift from importing the slaves to making them ourselves." And just like the perniciousness with which this institution survives and the compromises they strike to appease the various enslavers in their myths and, and how we live w- with that in our national DNA without ever talking about it, and how it carries over into the rest of the Constitution in lots of different ways.

and we can't shake the residue of that. We should just be honest about it.

So the last time you were on the show, was about five years ago at this time. it feels like forever and yesterday, simultaneously. but at that point we talked a lot about the Our Common Purpose report from the, American Academy of Arts and Sciences and the Project on Democratic Citizenship, of which you were a co-chair, and there's a lot of different reforms, both cultural and structural listed there, aimed at creating a stronger, healthier, more resilient democracy ahead of America's semiquincentennial, which we are in that year right now.

So it's a long way of getting to, five years, six years on from that work, the, the report, and the field work that preceded it. how are you feeling about the progress that has been made toward those goals, or perhaps not been made towards some of the things that you were writing about and thinking about then?

Thanks so much, Jenna. Yes, that 2020 report, it does feel like both a lifetime ago and yesterday. It was a very ambitious report. We had 31 recommendations. Some, as you said, on the cultural side of democracy, some on the institutional side. The truth is, we've actually seen a lot of really good forward progress.

It puts me in a kind of odd position. I find it really hard to reconcile for myself what I see in terms of green shoots and positive energy at the grassroots level, then the obvious chaos and difficulty and complexity at the national, federal level, and then thirdly, the fact that technology is moving so fast to rewire governance in ways that are deeply consequential and that, our report didn't touch at all.

So I'm never really sure which register I should be looking at, in the grassroots where I was in Philadelphia earlier this week and visiting with a set of schools that have been really doubling down on civic education. I listened to, a fifth grader talk to me about the play that she had helped develop to perform for the kindergartners in her school to teach them about the Constitution, and she leaned toward me and she said, I really had to think about engagement.

I really wanted those kindergartners to be engaged because I really want them to know their vote counts." And I just thought, it's amazing. If we have fifth graders out there telling kindergartners with a real enthusiasm and passion that their vote counts, something right is happening. At the same time, we're watching a Congress that has abandoned its role as the first branch of government, and again, a kind of technological infrastructure that has a degree of surveillance capacity that is historically unprecedented.

So yes, I'm a little stuck betwixt and between honestly, in terms of, knowing how to put all those pieces together into one picture-

... I

think.

To bring the declaration into the conversation a little more, as I was rereading it in advance of this interview and your visit to Penn State, I was struck by, if you showed people today the list of grievances against the king that are in there, at least some Democrats would probably say Donald Trump is doing or has done some of those things in there, and- Yeah

some Republicans would say that Joe Biden and Barack Obama did some of those things while- ... they were in office. So-

Yeah ...

it's striking to me that our grievances are now perhaps more with each other than with, or at least perceived to be with each other re- you know, regardless of what actually each party may or may not be doing.

But, we're now looking at each other as the enemy as opposed to, the king or a shared external factor that the colonists were 250 years ago.

That's interesting. That's an interesting way of telling the story. I would put it probably a little differently, to be honest, Jenna. so I would say that when Democrats complain about President Trump doing X and Republicans complain about President Obama and President Biden doing Y, they are actually both complaining about the same thing, which is that, executive overreach, an imbalance in the Constitution.

The Constitution was designed to achieve the goal of legislative supremacy that means the idea, Congress should properly be setting the direction. The president should just be articulating a will that's coming out of the people. The reason this matters is because a will that comes out of the people necessarily is a product of negotiation and synthesis and sausage-making, right?

It's not pretty, and the thing that comes out is not gonna line up with what anybody exactly wanted, right? We all have to be, like, somewhat dissatisfied by the result. But the point is, it's not arbitrary. it becomes synthetic and sustainable over time. When you transfer that initial kind of articulation of will from the legislative body to the president, that's when you get vulnerability to arbitrary power, essentially.

You get this sort of whimsical, frequently changing policy-making, the experience of whiplash that we've all been living through. Yeah. So the interesting thing is that our presidential system, you're right, has made us see that problem of executive overreach in partisan terms, rather than seeing through the problem of party to the actual problem- of executive overreach. so yes, that's a contrast to the American Revolution- ... where the stability of the monarchy, the very fact that the monarch endured across administrations-

...

meant that they could be very clear about where the source of the problem was. it's interesting to me, a thing I like to share, is that the British saw the same problem the Americans did.

The British were also complaining about executive overreach. And actually, so both countries, colonies and then Britain itself, had to solve that problem. Colonies solved it with a revolution and then a constitution that was supposed to have a reined-in executive. Britain solved the problem with 50 years of just persistent reform efforts, fighting corruption, and trying to broaden the suffrage, broaden who was participating in voting.

And the result of that was the modern constitutional monarchy. So now I ask you, compare the two executives, King Charles III-

...

President Obama, Biden, Trump, doesn't matter which one you talk about. Which country succeeded in restraining the executive? Not us.

Yeah.

Not us. That's the real story here, I would say.

I wonder if you could talk about the importance of unanimity. I also was, struck to see that it is a unanimous declaration of independence. So talk about the, both the process of getting to that unanimity and also why it was so important to the people engaging in the process that it be unanimous.

Yes, we know it was important to them because they went out of their way to achieve unanimity. Richard Henry Lee of Virginia actually introduced the resolutions to declare independence in early June. Congress, though, didn't vote at that time because they knew if they did vote, it was not gonna be a unanimous result.

So they wanted to delay the vote until they could actually achieve a unanimous outcome. so as a part actually, honestly, of stalling, they, elected the committee to draft the preamble, and so Jefferson, Franklin, Adams, Sherman, and Livingston took on the job of doing that and, delivered the Declaration of Independence.

And so then we had the final vote July 2nd The reason unanimity mattered was because they did, they understood that they were constituting something new. They had in their minds a distinction between constitutive lawmaking and ordinary or routine lawmaking. Ordinary and routine lawmaking, it's okay if the majority binds the minority, because you'll do it for a time, there'll be unintended consequences, things won't work, you're gonna have to revisit the decision, revise the law.

It's an ongoing kind of contestation. It's okay if it has, stability. but for establishing a political order, you need every stakeholder to buy in. If you don't have everybody buying in to the very structure of the order, then you have a kind of active principle of civil war built into the thing itself.

So you have to forestall that. I would say that's what they were up to and that's what they pulled off.

Your book published with this original music composition from classical composer Joel Thompson. Yeah. And this first section we're listening to, you say reflects the core idea of the book. So as we listen, let me ask you about the main contention you make, that America has a double consciousness. What do you mean?

Yeah, so you know, in 1903, Du Bois wrote The Souls of Black Folk, and he said that Black people see themselves through the eyes of those who despise them, and he called that double consciousness. But I think the double consciousness that he's describing is actually a consequence of the divided soul of the nation.

America imagines itself at once as a beacon of freedom and as a white republic, and you can't hold those two views together without contradiction-

...

without depositing a kind of madness at the heart of the nation. And so what I'm trying to do is to explore this tension, this vexed contradiction, that bubbles up with the milestone anniversaries- when we have to tell ourselves a story about ourselves.

there's the story kind of America publicly tells itself on July 4th.

Yeah.

And then you write about the long history of what often happens on July 5th, or a day historically where African Americans have often, in your words, spoken back.

Yeah.

And I wanna play a very famous speech from orator freed slave Frederick Douglass, July 5th, 1852. This is actor Phil Darius Wallace performing it in 2017, and in that speech, Douglass writes, "What to the American slave is your Fourth of July? I answer- "

It is a day that reveals to him more than any other day of the year the gross conduct and cruelty to which he is the constant victim.

To him, your celebration is a sham."

1852.

What is the long importance of July 5th?

July 5th was celebrated among Black Americans, like Juneteenth today, because it marked the end of slavery in the state of New York. It was New York Abolition Day.

1827. Exa-

exactly. Yes. So the point here is that there's been always this alternative commemorative calendar in Black America.

As America's celebrating its freedom, purportedly John Adams said to King George, "We will not be your Negroes." At the very moment in which he's giving voice to a notion of freedom is based on an intimate understanding of un-freedom. So initially, Black folks celebrated January 1st. Why? Because it's January 1st, 1808.

It's the end of the transatlantic slave trade. Then we celebrated August 1st, 1834, West Indian Emancipation Day, July 5th, New York Abolition Day, Juneteenth. Now, on July 5th of 1852, Douglass is speaking in that moment- The Fugitive Slave Law of 1850 has turned the country into slave catchers- Yeah. ... and fugitives.

He's speaking at the heart of the contradictions, the horror that will lead us to the Civil War that would leave 600,000 men dead on land and sea. So in that moment, he's saying, "Look, there's a serpent coiled in the belly, in the bosom of the nation that is slavery. You must rid the country of it if we are to survive."

let's move on to, some of the key years you chronicle in your new book, America USA, these big American birthdays as it were. So 1876, the centennial. Reconstruction has been declared for more than a decade, but the period sees horrific anti-Black violence, as you write in places like Vicksburg, Mississippi, Colfax, Louisiana.

So I'm gonna cue in part two of the music composition that goes with your book

Eddie Glaude, you say it explodes the motif with sounds of conflict and violence.

Yeah.

In this period, in and around 1876, you write, "The country has grown weary of Reconstruction." Tell me about that.

Yeah. there's this claim of overreach, and so you have this all-out assault on the aims and ends of radical Reconstruction.

What's so tragic about it is that Frederick Douglass in 1875 says, "We gained our freedom through a falling out between white men. Now, we must ask the question," I'm paraphrasing him here, "What will happen now that they've reconciled?"

Oh, wow.

And we know what happens. So Douglass, who is in so many ways, Scott, an example of freedom snatching, born a slave, escapes, lives long enough to see the Emancipation Proclamation signed- Yeah

but he also lives long enough to see the first Jim Crow laws. He calls these people in this moment, the apostles of forgetfulness. Sounds familiar, right?

The apostles of forgetfulness.

All right, we're gonna have to jump forward, 1926, the sesquicentennial- Yeah ... of the US. By now, the 1920s, the Klan has reemerged in 1915. So many anti-immigrant laws have passed, including quotas on Southern Europeans, and Eastern Europeans, and Central Europeans.

The Klan holds this huge march in Washington, D.C. in 1925. Again, it's on one of these key birthdays. what do you make of this period, this marking of the country's birth?

it's really contentious because, immigration has placed all these strains on the way in which the country imagines itself.

you forgot to mention in the 19th century, the Chinese Exclusion Act.

1882.

Yeah. Yeah. And so there's this insistence on imagining the country as white, and we need to understand this because the ideology of White Anglo-Saxonism, is driving America's imperial ambition at the same time, and Jim Crow is being consolidated.

The Klan is reborn in this period. The Johnson-Reed Immigration Act of 1924 was basically written by the Klan. Congressman Johnson from Washington was a member of the Klan. Senator Reed represented Pennsylvania, which had over 250,000 members of the Klan. And so at the 150th anniversary of the nation in Philadelphia, the Klan was approved to hold its annual convention on the grounds of the exposition.

Oh, my goodness. They were going to celebrate the flag and burn a cross at the same time.

So it gives us a sense of the divided soul.

and this is the division you say comes up over and over. As we move on to 1976, the bicentennial, it was a complicated, divided country- ... post-Watergate, post-Vietnam.

I, I- Sure ... wanna come up to the present, year 250. There is a, quote, "Trump rally" upcoming, and in a context of politicized history, of course, the remaking of the architecture of my town, Washington, D.C.-

...

removing museum exhibits on slavery, affirmative action. As a scholar of history, how do you situate, how do you contextualize this moment, 250th moment?

We're in a second Lost Cause. when we see the collapse of Reconstruction, you have two phases. You have Redemption, and then you have Lost Cause. Redemption, of course, is the violent overthrow of Reconstruction, the disenfranchisement of Black folk. the s- Lost Cause is the epistemic violence.

It's an assault on what we know, on the history books. what are we doing now? We're telling a particular story. We're trying to whitewash the past, right? We don't wanna tell a story about our ugliness. Now, what makes this important, Scott, is that in 1926, Calvin Coolidge was making a move around the Revolution.

Revolution wasn't radical. It was conservative. All we need is to remember and to restore because in the Revolution, in our founding, America's salvation was secured Now what MAGA does is give that an evangelical twist. Trump and Vance and other, they don't care about more perfect union talk. In fact, it's an affront to talk about the country moving towards perfection because perfection was already secured.

And then he blends that with his own sense of self. America's celebration must be a celebration of Trumpism itself because Trump ushers in the golden age of the country. And then Vance comes along and makes the choice. It's not creed that secured our salvation, it's blood and soil. So they double down on the idea that America is a white republic.

I wanna cue the last movement in this composition that comes with, with your book

First of all, this is beautiful. Oh my goodness. Eddie Glaude, you end your book and you describe this part of the composition as a section of hope shadowed by ambivalence. What does that mean? Yeah.

At the crossroads. It's a blues. It's the slave spiritual. He's quoting in that moment, you could hear America the Beautiful.

It's hopeful, but then you hear a blues sonority at the end. Which is what was in the beginning

I keep going back to what my student told me, what she wrote in her final paper in my Baldwin seminar. She said, "Perhaps it's not hope that we need to reach for. Perhaps what we need to do in this moment is just simply tell the truth, carried with love, but lit by rage. We have to bear witness in our troubled times," she basically told me, and I listened to her.

We've just heard clips starting with

Civics In A Year unpacking the six goals embedded in the Preamble's "in order to" clause, showing how each one responded directly to the weaknesses of the Articles of Confederation.

THE DAILY BLAST reported on the failed kickoff of Trump's Great American State Fair, where low turnout and Fox's wall-to-wall cheerleading revealed the event as a vehicle for Trump's self-glorification.

Brave New Foundation revealed that the Supreme Court's 1886 Santa Clara ruling never established corporate personhood, and that the idea stems from a clerk's headnote contradicting the actual decision.

Strict Scrutiny highlighted how the 16th through 19th Amendments grew from populist fury over concentrated wealth, and drew a line from that history to the slow, incremental work of constitutional change today.

Democracy Works revisited the Our Common Purpose report's 31 democracy reform recommendations while highlighting America's ongoing failure to restrain executive power.

And Here & Now Anytime examined historian Eddie Glaude's case that America's milestone anniversaries consistently expose a divided national soul, and that the current moment echoes a "second lost cause."

And those were just the top takes, there's lots more in the deeper dives sections,

But first, speaking of ambitious plans that don't pan out how you hoped, we're still squarely in the middle of our financial troubles here at the show. We even had to put our new YouTube project on indefinite hiatus before it was able to take root due to sudden economic instability and ad dollars drying up, cutting our budget by about a third.

It's not obvious from the outside but I'm working harder than ever right now, reimagining our entire social media strategy, experimenting with the idea of launching a newsletter, all while also rethinking what our members-only content looks and sounds like.

So, to our members supporting the show, you're really getting us through right now and we appreciate your patience while we figure out what's next.

Thanks to everyone who is a member or has made one-time donations. And if you haven't signed up yet but are thinking about it, each episode of Best of the Left takes about 25 hours of human labor to produce and essentially every dollar we can spare right now beyond basic costs will be going toward finding new listeners.

So, if you get value out of the show - and think others would too! - and want to get it delivered ad-free to the new, members-only podcast feed that you'll receive, sign up to support the show at bestoftheleft.com/support - there's a link in the show notes - through our Patreon page, or from right inside the Apple Podcasts app.

The quickest change I made in this rebuilding phase is the relaunch of our listener voice message segment which people regularly said was their favorite part of the show.

I've been asking a discussion question in each episode to kick things off but you should also feel free to respond to anything you heard on the show, including other voice messages.

So, here are today's questions with some context:

There's a quote that floats around in the toxic world of the manosphere that says, "Hard times create strong men. Strong men create good times. Good times create weak men. And, weak men create hard times."

There's a lot wrong with that, and I certainly don't endorse it, but I was reminded of it thinking about a different pattern that I think happens with democracy. I have the sense that when people fear the loss of democracy, that is when they're most inspired to renew it. When democracy has been renewed and strengthened, it creates a period of complacency in which people forget what's at stake. That complacency opens the door for democracy to be eroded to the point that it is again in danger of being lost.

So, my question is, does that sound accurate to you? And if so, do you feel like the current fear of losing the democracy we have will inspire the renewal that's needed? Also, do you think there's any way to not fall into the complacency trap, should we get safely to the other side of this danger zone?

Leave us a message by tapping the link in the show notes.

I put out a call for messages about experiences with the 4th of July and here's a message we received:

Hey Jay and the rest of the Best of the Left team. My name's Truman. I'm leaving a voice message for the upcoming America 250 episode. up until a few years ago, I had considered the 4th of July my favorite holiday. during my childhood, my dad and I had a tradition of driving out to the more rural areas a few days before the 4th to spend a stupid amount of money on fireworks you couldn't really buy in the city.

Uh, on the 4th of July, we'd set off all our fireworks in the front yard and hope the police officer who lived a few doors down didn't come and confiscate everything. it was always a thrilling experience and something I looked forward to every year. and a few years ago, I had started to grow the consciousness necessary to realize that all of the fireworks were very bad for the environment and all of the poor animals, including my dog, who were terrified.

our celebration started to taper off after that and, anyways, for me, the 4th of July had always been a fun, casual holiday, much like how non-religious people celebrate Christmas or Easter. and aside from my concern about the environment and the animals, of course, 4th of July has kind of lost its allure for me as I learn more and more about how flawed and backwards our country and its founding, really is.

It also doesn't help when the holiday itself is becoming increasingly politicized, uh, largely due to our president and his need to be at the center of everything. I do hope that in time, uh, we as Americans become more reflective about the holiday and maybe give it new meaning. it would also be cool if we could get some new animal-friendly, less destructive fireworks to set off.

anyways, thanks for all that you do. Bye.

Thanks for the story, Truman.

I said before that leaving us a voice message effectively acts as a vote for the continuation of the voice message segment, and Truman has been voting his heart out. We really appreciate his support, but I hope he's also being an inspiration to all who will also take the time to chime in.

My quick response about fireworks. Drone shows. I have some mixed feelings about drones in general. I certainly don't like when they're buzzing over my head while I'm trying to enjoy myself at a park, but I think drone shows are unequivocally better for the air and the animals compared to traditional fireworks and they can be pretty cool.

If you have a question or would like your comments included in the show you can record a voice message - re-recording until you're happy with it - by tapping the link in the show notes.

As for my thoughts,

Everyone knows the country's birthday. It's the 4th of July. But I'm not sure I agree that it's actually our birthday. Shouldn't that be the day the Constitution was signed which made us the country we are today? I'm guessing you don't even know what month that happened in, much less the date. There's technically a day for it. It's called Constitution Day, but you've probably never heard of it.

If anything, the Fourth of July is just the day we declared our intentions to one day become a country. So, if it's not really our birthday, maybe it's more like our date of conception. But I'm guessing nobody likes that metaphor, because of the images it conjures of all those dudes gathering in the city of brotherly love, conceiving their new nation in liberty but also in prolonged and heated back-and-forth negotiations, and maybe some backroom sessions as well, before coming to a hard-fought agreement. And that's fair, that's not the vibe we're going for.

But, here's the actual point. When the flashy stuff gets remembered and the messy systems that do the real work don't get the same focus, that's indicative of a bigger problem.

The story of the Fourth of July is about individual people whose names we know and a single date we can remember. The crafting of the Constitution was much messier and doesn't get the same name recognition, but it's the actual foundational law we live by. The Declaration of Independence has a lot of good ideas and certainly earns its place as one of our founding documents, but it only carries emotional weight, not any force of law.

That, I think, is the garbage "Great Man theory" of history versus the much more accurate reality of society being shaped by systemic forces, in a nutshell. We gravitate toward what's shinier and simpler, usually skipping over the complications. That's understandable, but the desire for simplicity often leads to fundamental misunderstandings about the world. "Great man" myths make us wish for a hero to save us and make conspiracy theories about singular villains attractive when reality feels too complicated.

Here's another example of the divide. Race and the question of enslaving people was a core fight during the founding. The Declaration of Independence sidestepped the issue entirely. The Continental Congress actually deleted Jefferson's attempt to condemn the practice. Years later, the Constitution was no longer able to duck it, and we ended up with the Three-Fifths Compromise and the Fugitive Slave Clause, which set the tone for a debate that would continue in one form or another for at least the next 250 years. Flashy and clean vs complicated and compromised, literally.

At this point, we've progressed as far as getting almost everyone on board with the idea that slavery and discrimination are bad. But we're still debating whether the Constitution even allows us to remedy the way those exact things have echoed through history. People looking to halt progress without sounding like that's what they're doing have a few options for how to approach the Constitution, the Bill of Rights, and the creed laid out in the Declaration of Independence.

They can just ignore the parts they don't like, which might include the idea that all men are created equal, or the idea of birthright citizenship. They can derail almost any debate while sounding principled by arguing that we must try to divine what the founders intended or would want now, as if their opinion should trump ours. Or they can cherry pick, a bit like religious scripture. You don't have to read the whole thing, you just confidently quote the parts you think support what you already believe. A classic example is believing strongly in the permissiveness of the Second Amendment while conveniently ignoring that whole clause about a well-regulated militia.

And then there's the mirror world, which is where a lot of conservative arguments have gone recently. This is where you've lost the cultural argument so completely that you start borrowing your opponent's words and framing while trying to undermine everything a plain reading of those words would imply. Take the plain text about equal protection, which you'd read as a bulwark against discrimination. In the mirror world, that same text gets used to stop any proposed remedy for discrimination.

When race is the issue, they call it colorblindness and a person can have a sincere desire for a colorblind reading of the law, but as it actually gets applied, striking down remedies for measurable discrimination leaves the discrimination standing. Any rule that fights racism by forbidding you to see it protects the outcome and not the principle. And if the past is prologue, that outcome will keep being more discrimination.

The courts in America have a big role to plan and do a lot of reinterpreting. That's a structural outcome of our Constitution being one of the hardest to amend in the democratic world. Given that reality, both the left and the right have little choice but to make the changes they want through cultural work and clever legal arguments.

Changing what people believe, and what we believe the country owes its people, is fundamental to the progressivism that drives society forward and none other than our founding documents have been central to inspiring that process. They're held up as ideals worth striving for and as promises of equality made but not yet fulfilled.

Conservatives have been blunt about their effort to do the exact opposite. William F. Buckley Jr., the conservative intellectual heavyweight, said in 1955 that conservatism's founding creed was to stand athwart history, yelling Stop. Unsurprisingly, that doesn't work. History keeps moving, and that's when plans B and C start to take shape.

They were losing the culture and began making plans in two directions at once. Culturally, they started borrowing the language of the left without actually changing the policy outcomes they wanted. For instance, when the country started getting less racist, conservative strategist Lee Atwater explained the Southern Strategy of not using the N word so much, explaining, "So you say stuff like, uh, "forced busing," "states' rights," and all that stuff. And you're getting so abstract now you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is, Blacks get hurt worse than Whites."

You follow that pattern a little further, and racist gerrymanders and restrictive voting laws get turned into "protecting the vote", while Trump's attempt to overturn a legitimate election is framed as "protecting democracy".

That's the cultural, rhetorical side. On the political level, knowing they were destined to be sidelined for their deeply unpopular positions, conservatives began working out how to take control of the levers of power without legitimately earning the support of the majority. That's why you get the evangelical leader and Heritage Foundation co-founder, Paul Weyrich, explicitly speaking out against expanded voting, saying, "They want everybody to vote. I don't want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."

Their minority-rule strategy is also why their top target was to capture the least democratic of the three branches, the Supreme Court. The Republican Party, with the help of the Federalist Society, has been stacking the judiciary with far-right ideologues for decades. And their cleverest move, made famous by Antonin Scalia, is the so-called judicial philosophy of originalism, which gives them pseudo-intellectual cover for striking down essentially anything they can argue the founders didn't specifically protect.

If standing athwart history yelling Stop didn't work, then the war against voting and the takeover of the judiciary was jumping in the moving car of history and pulling the hand brake as a last-ditch effort. You do that to a car and you'll definitely slow it down, but after a while you also start to notice that the brakes are burning. The demands for democratic renewal and the collapse of the courts' perceived legitimacy right now is the smell of those burning brakes.

The current debate in the country isn't just about which version of history we're going to teach; complex and real or whitewashed propaganda. It's about which framework for understanding the world we're going to live by. Simplified "Great Man" and "Great Villain" theories, or the nuanced nature of structural forces.

The fact that Donald Trump leads the political movement currently in power, largely because of the conspiracy theories he creates and spreads, says a lot about how the system actively rewards the simplification, not to mention falsification, of the stories we use to understand our world.

The cultural work the left does, continually updating our understanding of fundamental rights, freedoms, and the government's power to support human flourishing - and turning those new perspectives into tomorrow's common wisdom - is foundational to the kind of politics we need right now. We've already won the culture. Being pro-democracy, anti-oligarchy, and anti-discrimination is already common sense to the point that even the people who covertly oppose those things have to pretend to support them.

Which means the only thing left to do is take back the wheel and release the parking brake. People don't like the way things are going, and they'll welcome a drastic change that actually speaks to their needs and renews democracy. Trump sold his supporters a counterfeit version of that, a populism that was always an obvious lie. Offer people the real thing and they'll take it. The left can absolutely win on the politics, and the biggest reason we haven't already is itself structural. Our elections are designed in structurally anti-democratic ways that don't reward the majority the way a democracy should.

If you want to understand the problems in the world, always look to the structures first. Once you see the machine clearly, the work required to fix it becomes obvious.

And now, we'll continue to dive deeper on 4 topics today. First up;

Section A, FOUNDING IDEAS

Followed by Section B, RACE & RECKONING

Section C, PRESENT CRISIS

And Section D, CAPTURE & RENOVATION

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Okay. So this episode, we are focusing on the, purpose cited in The Preamble, that is to promote the general welfare. That's one of the stated reasons why we even have a Constitution, to promote the general welfare.

And I love that, because all the things be- that are, noted before the general welfare are kinda like, establish justice and, Domestic tranquility and the common defense. They're like defensive things.

It's first- Yeah ... we have to have enough peace.

Y- what is that concept, of negative peace and positive peace?

Have you heard of that? Remember that?

No. No, I don't remember it at

all. Because... Okay. Okay. let me tell you. So negative peace is okay, that's the absence of conflict.

Oh, okay. Okay.

And that's one kind of peace.

Yes.

But that doesn't mean that you have the most- Inner

peace, like-

The

optimal kind

of- flourishing.

Yes.

You can have this underlying tension-

...

but nobody says anything. Don't ask, don't tell, and that's negative peace. But if you want to have flourishing and the achievements, that are available by fulfilling your potential, that's positive-

...

peace, right?

So to me, this idea of promoting the general welfare is saying, "Hey, we want our Constitution not only to create a society where people can live with a negative peace-

...

like absence of conflict, but we want to promote the welfare of the general population." It's a very positive thing. Yeah. It's uplifting.

It's hey, we want everybody to be able to go for it and make the most of their lives and develop their lives to the f- to the fullest capacity possible. That's the kind of society we want.

I like that because when you think of the phrase general, general welfare-

...

it doesn't, automatically include that to me.

It is a very vague-

...

phrase.

General welfare to me just means like your basic, basic-

...

needs are being met. Although flourishing I think is a basic need, but we don't see it as a, as such. Yeah. It almost seems like it's extra, right? You're lucky if you're flourishing. But I think it is a basic need that we've just short-changed ourselves of.

Yeah. It's it-

Says the thread.

says the thread fiber.

this idea of promoting the general welfare too, I wish it would be invoked more in conversations and debates, about public policy, things like healthcare, like reproductive rights or abortion rights. Because I feel like so often the public conversation is framed in a very narrow-minded, nearsighted way of, what are an individual person's rights?

And that's absolutely important, but we have to be able to take a wider view too and s- and see, how does it affect all of us as a society Yeah. and this is, it's like with the mask-wearing thing. It's yeah, it might be a little inconvenience to wear a mask, but think of the larger society.

Mm-hmm. Think of the general welfare, right? so I really... It would just be a, such a delight to me if that phrase, promote the general welfare, was used more often in public discussions- ... about policies.

let me begin with the most important words in that set, which I think are the words endowed by their creator what's the alternative to that?

if we're not endowed with our rights by our creator, whatever rights we have must have come from some other source. if it's not from some more than merely human source, it must be from some human source. So somebody could argue whatever rights we have or whatever rights we're granted by the king, or the parliament, or the president, or the Congress, or the Supreme Court.

But the proposition here, as Lincoln referred to it, the proposition is that it's not any human power, it's not kings, it's not presidents, it's not parliament, it's not Congress, it's not judicial branch figures, not judges, who give us, confer upon us our fundamental rights. They come from a more than merely human source, from the hand of God himself, and because they come from no merely human source, they cannot legitimately be violated or taken away by any merely human source.

The purpose then of human authority, of government, as the Declaration will go on to say next, is above all to secure those rights, to make sure that people are not violating each other's rights, that people aren't, preying on their fellow human beings. Their f- and not just fellow citizens, all men, all human beings, all members of the human family created equal, not preying on each other.

That's government's most, fundamental role. So when we talk about the rights being unalienable, they can't be taken away, and indeed, they can't be given away. You've got them, and you have them, again, not because some public official gave them to you, but they're gifts from God. They're in your, built into your very nature, the way you were created, the way you were constructed.

That's the natural law component of the, of the American founding. As a matter of natural law, these are what we might today call natural rights, or even more familiarly today call human rights. They're unalienable in that sense. They are givens.

Excellent. and, and David, maybe g- coming to you and, and building on Annette and Robbie, maybe say a little bit more about those, the, the, the famous words life, liberty, and pursuit of happiness.

in particular, what that would've meant to the signers. We have, our, our mutual, friend and, and CEO emeritus Jeffrey Rosen with his book on The Pursuit of Happiness. love to hear your reflections on, on, on that phrase, David.

thank you for that question.

I will channel Jeff Rosen-

since you brought that up. Jeff would tell us, as he did in that book, that for the founders this meant- It's rooted in their many readings about virtue, about the history of virtue, about virtue as a moral philosophy. Cicero, Aristotle, many others Being, your pursuit of happiness being protected means you are free to pursue virtue That neither the law nor the state can prevent you from doing that.

But I wanna, but quickly to Robbie's point about natural rights. I've written, a lot about Frederick Douglass. He, he- Douglass would have had no voice, frankly, without the natural rights tradition. It's everywhere in his rhetoric. to, to Douglass, he once referred to natural rights as, precious ore from the earth.

It's just there. It's always been there. You hope it's still there. he would begin and end many speeches with some nod to the natural rights tradition that... And of course, he's doing that as a Black abolitionist, saying to his audiences, "Yes, I don't look like you. I'm dressed like you. It doesn't matter how I'm dressed, doesn't matter my color.

I have the same natural rights." sometimes he would employ God, and especially w- he would employ the Hebrew prophets. but it, I would even take up the fourth first principle here. I thought that maybe it was where you were going, but that's fine. But, eh, w- we sometimes don't give it as much time because of the sheer poetry of life, liberty and the pursuit of happiness.

But the fourth first principle is the right of revolution. Talk about a bold move. these people are saying, "It's our right to overthrow our government if that government has abused our rights and liberties and powers to a certain extent." And I'm, apologize to the teachers in the front here, we've been doing a teacher institute all day here at the National Constitution Center, and the rest of the week, and I already laid this one on you.

But in a close reading of the declaration, you will find that, by far, the most lines by Jefferson are spent justifying what he says about the right of revolution, which is a natural right to him. It's 22 lines as I count them, and it's most of paragraph two. Why? that's a, that one needed some justification in a world that, "You're doing what?"

we're throwing off monarchy. We're overthrowing the King of England." "Oh, really, are you?" "Yes, and here's why." only at the end of that paragraph does it say, we're doing it because of repeated injuries and usurpations." I find that s- and I only realized this a little while ago, 'cause we're all on so many panels now about the Declaration of Independence, so I've been closely reading it, and underl- finding, in my National Constitution Center pocket Constitution- Thank you, David

and Declaration, and I realized, my God, most of that famous paragraph is defending

the right of revolution.

Not that the natural rights themselves don't need defending. And I guess the last thing I'll say about it, we know how important natural rights are When we see them condemned. And in the thousands of pages that American slaveholders spent defending slavery, many of them, James Henry Hammond comes to mind, there are plenty of others, argued, "No, Jefferson was wrong about the first principles.

He was wrong about natural rights. No, people are not born equal. No, they do not have these natural liber- there's no such thing as a natural liberty." It's then when you read some of the pro-slavery writings by the 1830s, '40s, and '50s, you realize, oh my God, they really disagreed . And there's a conflict coming here, because natural rights are so potent.

we either have them or we don't. And if we don't ...

And what were the fundamental disagreements or divisions about the Declaration, David?

Right from the get-go, whether or not we should separate from the Crown, right? This is a big deal. It takes a long time for Americans to come around to becoming-

The shorthand of it is we all agreed to get rid of the Crown.

That's not true.

No, there was a lot of disagreement because it, it was a consanguinity, right? That's the word the Declaration used. We're of similar blood. America's a home, but we're also an idea were even more an argument. And so I think what the colonists started to realize is, we have to start expressing what it is that is in the American mind.

And they came to realize, this was in a kind of crucible moment, I think. Imagine you're Jefferson, right? You got a deadline, you got 17 days to write the thing, and you write, "Who are we?" He wrote a word down. We didn't know what that word was until t- 2010. He wrote a word over it that was citizens. In 2010, the Library of Congress scraped back the letter, the layers of ink.

Subjects. We moved from being subjects to citizens.

And Tony, that may be among the most important transitions in human history.

Indeed. And to assert that we have natural rights, that government cannot violate, and that, we are, all men are created equal, and that we have certain liberties. and the purpose of government is by the consent of the people to protect their rights.

That is the purpose of government. It's just- Not

to deliver benefits- ... but to protect rights.

That, that's right. that is the core American creed, and how policy and laws and all that have, evolved over the 250 years. That's the story of our book, right? Because... and the declaration has always been at the very core of all of those debates.

And I love how the book goes through the process because there is- Another shorthand. Jefferson sat by himself, racked by migraines, and came up with this beautiful set of words that had never been seen before. As you make it very clear, they'd been seen all over the place. It was a derivative distillation- Yeah

of what a lot of other people had put down on paper, had said out loud, and the most important thing Jefferson did was to put it all in one place- Yeah ... in one set of phrases that have stood the test of time.

He's the draftsman. He didn't like any of the edits, by the way. he thought he had written a pretty perfect thing.

No

one

does. No one wants to be edited, right? So when those come in, they're about the grievances some. They didn't tweak much of the preamble, right? The thing that Tony just quoted. That was in the air. Whether you were hosting a, a, hoisting a pint or listening to a sermon, you were hearing these things about natural rights, and that was a big change.

When we have rights by blood, that's one thing. When you have rights by your existence as a human being, that's another thing. And so what happened is this kind of change, and that set off a, a sequence of events that were really profound. People understood immediately this is a revolution in the way that we think about rights.

Enslaved people, for example, could claim their rights.

It set

people thinking about America in a new and different way. Abigail Adams, for example, says, "Hey, John, you're gonna be doing this new thing. Could you please remember the ladies?"

Or else.

Or else. That's right.

She'll fo- she said she warned him in a gentle spouse-to-spouse- sort of way, but underscoring, look, the, we, we have revolutionary ideas of our own, and- Be leery of us or we may come at you.

They weren't trying to, reinvent human nature. That's the interesting thing, right? It's revolution in one sense, but it's not the kind of let's start over with day one and think that we're going to overthrow all of human history and start anew.

Because Tony, as you and David write, the assumption was human nature is fixed, and it's not gonna change, and don't get Pollyanna-ish about the potential for human nature to suddenly find within itself all sorts of wellsprings of justice. That's not the way humankind is. There i- are injustices, and government better be organized to protect the rights of those given them and not assume the best of everyone all the time.

and as the Federalist Papers would later say, man is capable of virtue, but he's also capable of vice. But he is capable of virtue, and so that capacity for reason, that ownership of rights, that ability to participate in self-government, that recognizes it's dependent upon a certain capacity for virtue and for working together with others and for engaging with each other in civil society.

Self-government is predicated upon the people, and, they have to have some of those better angels in their nature for

this experiment to work.

⏹ CLIP 1 END

Speaking of interactions with students, I'm sure you have encountered this lately Students will say, "Yes, all that's true, but it was reserved- for those who had land, who were white, and who were men, and who were educated. Meaning the restaurant was small. Very reser- several reserve tables, and that was basically it. And there were a lot of other people outside that restaurant peering in. Women- ... enslaved people, Native Americans, and the like.

And that is a contradiction- ... at the core of our start.

And they're not wrong in that observation. Here's what oftentimes, though, that textbook understanding, 'cause that is the very typical way that most textbooks run, and the emphasis, can come to be on that part of our story. Here's what I think is remarkable.

When Jefferson makes that change, when the rest of the members of Congress endorse that and they say, "We're gonna put this out to the people to try to decide and give them the opportunity to be citizens, not subjects," that's a remarkable thing. And what it says is, "This contradiction we recognize." We call it in the book a corrective mechanism, right?

It's saying, "We want to aspire to live up to the promise of this creed. Our deeds right now do not measure up." Think of that- ... what courage it takes in a way to write a self-indictment, 'cause two-thirds of those men who signed the declaration also owned other human beings, or purported to be able to own human beings, right?

At the very time they signed it.

At the very time. That's a contradiction. We wrestle with that for several chapters in this book- Absolutely ... because that student's perspective is valid. But here's the thing. When the declaration proclaims all men are created equal, it was a statement about mankind. It was not a gendered statement.

It was a statement that all human beings are endowed by their creator with certain unalienable rights. And what that set in motion was the ability for each of those peoples to claim them against the government. Now, it took way longer than anybody wanted, but those claims came and they came in quick, and they came in long, and they came in steady.

And that aspirational part of the document, and subsequently followed by the Constitution, are revolutionary concepts in history. But lots of blood and toil and sweat and tears went into those who were outside the restaurant trying to fight their way in.

and we don't shy away from it. We tell those stories, right?

We, we- Frederick Douglass ... face the contradiction. Yeah. and so enslaved people-

Martin Luther King, John Lewis. Martin Luther King.

It gave them hope. It gave them s- they said, "These principles are true. They're universally true, and they apply to me. They apply to us." And so enslaved people, as soon as the country starts, they make freedom petitions and freedom suits and say, "We deserve our freedom."

The women of Seneca Falls say, "We ... All men and women are created equal." They want the right to vote. Frederick Douglass, as you mentioned, Martin Luther King, these are great stories of those who recognized that the principles of the Declaration were true and wanted to make them a reality for all.

I've had the privilege of covering five presidents of this country. I've traveled all over the world. And I'll distill the conversations I've had traveling over the world about our two documents we're referring to, the Declaration of Independence and the Constitution. Because people in other countries say, we have documents too.

You guys actually mean them."

And that's the difference. Yes. If I could distill the thing I've heard traveling the world between us and them, is they, to quote people I've met, cab drivers, restaurant people, other walks of life, "You mean it, and you've proven you've meant it because things happened over time to be more inclusive, to be more diverse, to be more representative."

Yeah, Abraham Lincoln called the Declaration and its principles the standard maxim for a free society. So this is the standard. And it's the standard we continually hold ourselves up to, and it's one we should continue to do so not only for, America 250, but for the next 250 years. and the Declaration should always be at the center of those claims on rights and equality and liberty f- justice for all.

So there, there was a very strong debate here, and that debate's really reflected in the larger American society, throughout the antebellum period before the Civil War, as, people like John Quincy Adams, and Daniel Webster, Henry Clay, they made arguments for liberty. They made arguments against slavery and its expansion, the new Republican Party, throughout the 1840s, 1850s.

and there were others who contested the idea, of human equality, and said that all men were not created equal, and that it, they really meant all white men are created equal. And these included, people like John, John Calhoun, Stephen Douglas during the Lincoln-Douglas debates, Jefferson Davis, the vice president of the Confederacy, Alexander Stephens, and most infamously perhaps in the Dred Scott case, okay?

In which said that the Declaration of Independence did not apply to any Black people, free Blacks or enslaved people. there was that huge debate and that contested idea that all humans, all men are created equal, in many ways led to the Civil War. But the debate continued, right? and it even shifted to foreign policy.

so as we see in, o- of course, what, let me step back here a little bit. Abraham Lincoln, of course, is one of the great expositors of the, principles of the Declaration, not only in the Lincoln-Douglas debates, at his speech in Peoria, at Cooper Union. he alluded to the Declaration hundreds of times throughout his speeches, and most notably in the Gettysburg Address, where he says, "Four score and seven years ago, our fathers brought forth on this continent a new nation conceived in liberty, and dedicated to the proposition that all men are created equal."

So Lincoln believed it, and issues the Emancipation Proclamation, in part based upon those ideals, and also, gets the 13th Amendment, through Congress. we have the end of slavery. But it informs fol- foreign policy debates too. So we, the United States goes to war with Spain over Cuba and the Philippines, in 1898, and the Declaration is at the very center of the debates over the purposes of foreign policy.

Should we be going abroad? Should we be a colonial power? Should we expand our power throughout the globe? are we an imperialist nation? All of these questions are centered in the Declaration, especially over the peace treaty. The idea is that, in December of 1898 and in January of 1899, as they're debating this treaty, every single speech, every single day is rooted in the ideals of the Declaration, particularly the ideal of consent, right?

They really debated, can the Filipinos and Cubans, can they give their consent to the government? Do they have traditions of consent? Can they give their consent from 8,000 miles away? We can dig around in some more of the complexities, but the imperialists and, or expansionists and anti-imperialists really put the Declaration front and center in their debates over the purposes of foreign policy.

And I think throughout the 20th century, we've done that. who are we as a nation? How do we, spread our ideals around the world? But we also see it in, in some political debates in two of my final points, that, the progressives and conservatives throughout the 20th century have really, debated the Declaration, right?

the progressives arguing that, like Woodrow Wilson, Theodore Roosevelt, others argued that the Declaration was great for 1776, great for an earlier age, but was not really relevant in our modern industrial society anymore. That we had new rights and the government should help not only protect those rights, but ensure those rights.

So we have a redefinition of rights. On the other hand, Calvin Coolidge, Ronald Reagan, other conservatives, wanted to conserve, wanted to preserve those principles. Calvin Coolidge in the 150th anniversary, this year is our two- 250th, but on that anniversary, Calvin Coolidge said, among other things, "Those principles are final."

He said, they're unchanging, they don't evolve, they're not Darwinian in their nature like Woodrow Wilson was arguing, but they're final. they're true now, and they'll be true, 250 years from now when we celebrate America 500. and then finally, we explore the story of the March on Washington and how Martin Luther King and John Lewis, who, spoke at the March on Washington, both agree on the ideals of America.

and both agree that they want equality and freedom, for African Americans who were then, suffering from segregation, but they had a somewhat different approach, right? So King is really a believer in the American dream, talks about, "I have a dream," throughout his speech, talks about the, magnificent words of the Declaration and Constitution.

John Lewis is, just a little bit more revolutionary, a little bit more radical in terms of wanting to produce a social revolution rather than appeal to the revolution, of the founders and the ideals of the Declaration. So that just, quickly kinda gives you an idea of the flavor of some of the political domestic debates that were going on over the Declaration, foreign policy debates, and a lot of these social movements as well made that claim on the Declaration.

And it's really always been front and center. And we'll say Americans have been divided over that declaration, but it's also been their greatest source of unity as well. And it holds the promise of really reunifying our country amidst all of our polarization today, all of our debates. If we can put the Declaration and its principles front and center again, we can have some more common ground than what we think we have today.

And David, as we were starting this conversation, we talked about this hesitancy around America 250, and one thing that can happen to a society as it ages, it can get less connected to its origins, more cynical about the flaws of its story, and less prideful in a generous way about how things got started.

Do you have any fears about that right now?

It can certainly happen. what I think we need to worry about is if resentment becomes deeply embedded, especially in young people. If you tell them long enough and, with enough repetition that the country is only ugly, they're gonna believe you. I think it's incumbent upon adults, whether you're in the education sphere like we do at the Bill of Rights Institute or not, to model what good citizenship looks like.

One of the reasons that we start the book with Frederick Douglass is because he could understand how you could feel really frustrated by this country, right? He was enslaved for the first 20 years of his life, and he really lets his audience have it. And he said, "You guys aren't living up to your promise here."

That's an okay message for us to hear. But in the second half of the speech, he moves from you and yours to our and ours, and he said, "If we cling to these saving principles, liberty and equality for all, we have a way forward." That's what I think our overwhelming message for the next 250 should be. We can dissent.

We can argue. We can even claim rightfully we have not lived up to these things as we should, but let us do that in the spirit of gratitude. Patriotism begets gratitude.

And Tony, it's a dynamic that flows through the whole book, to pick up on your point, David. There were plenty of people in our country, 18th century, 19th century, 20th century, who had every reason to give up- and who did not And I think that's one of the things you wanna convey to those in the space of classrooms, or young Americans trying to figure out what it's all about.

we tell those stories, right? We tell the story of the women meeting at Seneca Falls and saying, yes, let's sit down and write a declaration of sentiments copied on the declaration."

And then they went out for the next 70 years in the streets- 70 years ... 70 years, and, and fought for suffrage. Made a claim on the principle of consent and voice in democracy. So did Martin Luther King and John Lewis. They were on the front lines, of these demonstrations, which got ugly and brutal and violent.

Deadly, even. And they went to jail for equal rights, right? And so we tell a lot of these stories and other ones in which Americans are acting on their principles. Because it's not just grand words. It's not just grandiosity. It's about actually making them a reality for everyone.

And turning citizen into a verb.

It really is important. Young people naturally want to be problem-solvers. One of the things that we found in our civic, education work at the Bill of Rights Institute, the book ends with a chapter really about that sort of thing. There's a mindset that the declaration encourages. There's also a skill set.

If you take these principles and say, like John Lewis did, even starting as he did in high school, I think there's an aspirational moment. There's an opportunity. Localize that, right? Don't try to boil the ocean. A young person can dig in and start in their local community and say, "What gap can I close between aspiration and reality?

How do I gain those skills?" When you try to boil the ocean, what happens is you're gonna fail, right? Invariably. Then we find that young people tend to give up on the democratic project, small D. They tend to be worried that, look, the whole thing is corrupt. Maybe I should turn to an alternative ideology.

When you start at the local level, you might fail, but you can get back up and try again. Those are the kind of programs that we're encouraging young people to be able to understand civic as a verb.

Because Tony, the easiest thing to say is, "It's all rigged."

Right.

There's no ch- there's no chance, so why do anything?

Or why think anything, or why participate at all? That's the easy place to land.

That is, that's the easy thing to do, right? But the hard work of self-governance is engaging with each other. Even when, as we point out in the book, you're debating and you're divided, right? as I

said, the whole- And you lose again and again- Yeah

and again.

Sure,

there was a- the Civil War is fought. Reconstruction starts. Reconstruction is crushed. And then there's 100 years of Jim Crow.

Right,

yep.

That's lifetimes of struggle- Yep,

yep ...

with very little recompense from the society in which you live That's a struggle

and we're not doing that at the moment, which is good.

We're not at that level. But we have to unite more as Americans. We have to do the hard work of self-governance in, in civil society, in the local community, as David was saying, but also in legislatures, in Congress, the branches of government. We need to talk. We need to compromise. We need to see that which unites us, and we believe, in writing this book, that the ideals of the Declaration and our common affections as Americans can help bring us together again.

And David, the very improbability of defeating the British. It was among the most audacious, reckless things in history up until that time.

we just saw the NBA finals, right? 0.4% likelihood of winning with 10 minutes left, right? You're saying it's over, right? In game four. In game four, and that's where the United States, the United, States, we didn't even know- The

colonies were, yes

who

were, who we were, right? We're the Continental Army, and we hadn't seen the continent. So it looked like it was a lost cause. But George Washington and the others who recognized that we had something incredibly powerful with these ideas. That's the power of a creed combined with a home. And then they said, "You know what?

It's okay. We're gonna argue about it. We're gonna open up the aperture of freedom so that people can have a debate about how we put these principles into practice." That's the nature, and that's why we were able to win against all odds against the British.

And Tony, we can do all of this- Without thinking about President Trump.

Yes, we can. Yeah.

He- Because he wants to- Yeah ... it's evident. He wants 250 to be more about him than previous occupants of the presidency have at other momentous moments in our history. That's him. He's been elected. That's what we have. That's the reality. But we don't need to filter this process through Trump.

We do, and it's a shame that we're doing that. and, I can be patriotic, but if I'm patriotic, I might be on, everyone might perceive me to be on Trump's side or vice versa. And it's kinda messy right now, but I think that if you look beyond who the president is, I'm not sure why that matters in celebrating the 250 years of America, but it does.

Because back when we

started, it would've been Congress that mattered, not the president.

Exactly right. and so the question- The

powers were vested there much more so than the executive.

and it's not people are super wild about where Congress is at these days.

exactly, yeah.

But y- I hear your point, and take another example, right?

So Calvin Coolidge is president when we're turning, 150, and he gives a really remarkable speech. it's, commend it to everybody. it's not a well-known speech. Talks about the inspiration of the Declaration, and his idea is very simple. He's saying these are spiritual ideas, what we've been talking about through much of this, this conversation.

Not spiritual as in religious, but they're immaterial. The idea of a right that I own by the nature of me being a human being, and that if you gain that same it's not a zero-sum game. What an innovation. The Declaration was the biggest innovation in American, in human history, bar none.

And so what it takes, I think, as a Calvin Coolidge to recognize this is permanent. There's a point in his speech where he said, "If those principles are true then, they're true always. They're final." Final also requires a kind of follow-through. John Lewis teaches about, us about follow-through. Martin Luther King teaches us about follow-through, right?

The principles exist, and you gotta put 'em into practice, and that's the kind of emphasis that I think we wanna have here around America's 250th celebration.

Next, Section B, RACE & RECKONING

Tell me about the, participation of the Supreme Court in all of this.

we tend to read the court through the Warren Court.

I know. it's just an accident of our birth.

But, the court is rendering decisions that fundamentally narrow the aims and ends of Reconstruction. During Radical Reconstruction, there's legislation passed to curtail the violence of the Klan.

The Supreme Court overrules it. During Radical Reconstruction, you get the 13th Amendment, which ends slavery, the 14th Amendment, which gives us due process, the 15th Amendment, which gives Black folk the right to vote. You see the court systematically narrowing and constraining what the 14th Amendment covers, so much so that you get the violence of the Klan.

You can see the, those laws implemented in order to hold them to account, particularly in Colfax. Those very people who committed the horrors in Colfax were then absolved of any guilt by virtue of the court.

How did they do that? How does the court justify murder?

By saying this falls within the purview of the states.

So if the state isn't going to prosecute, then there's no murder. it's

not a federal issue.

What was the red wave of 1874?

This kinda takes us to the cycle that I'm talking about in the book. This red wave reflects the exhaustion of the nation. They've had to bury their dead, lost in this extraordinary, violent conflict that was the Civil War that almost destroyed the nation.

And so you have not only those in the South, but even those in the North, and of course, those folks who didn't believe that Black folk had the capacity for citizenship, but they didn't believe in disunion. These are the Copperheads. They are tired, and then you get the economic downturn. Folks are losing property, losing wages, losing their way of life.

So between the economic downturn and the fatigue around race, Republicans, who had been governing the country, lost enormous number of seats Bellah the House of Representatives and the Senate. Not even a full decade after the Civil War, Democrats now control all of the major committees in the House of Representatives, and you see the effects of this as we're barreling towards the centennial of the country.

The red wave represents the Democrats?

Yes.

They were red back then. So we get to 1875, as you write, the Gilded Age that Mark Twain skewered, the bounty of the frontier and the genius of our technological advance. Native people were savages to be tamed or eradicated. The past mattered little here. And Frederick Douglass spitting against the wind, again, the Negro was not the problem.

this is, that 1875 speech is so powerful.

July 5th, again. Will

you pull a little bit of that up?

Yeah. "When this mighty quarrel had ceased," he told the crowd.

The war. "

When all the disparities and resentments have gone as they are sure to go, when all the clouds that a few years ago lowered about our national house shall be in the deep bosom of the ocean buried, when this great white race has renewed its patriotism and flowed back into its accustomed channels, the question for us is, in what position will this stupendous reconciliation leave the colored people?

What tendencies will spring out of it, and how will they affect us? If war among whites brought peace and liberty to the Blacks, what will peace among the whites bring?" So here Douglass is understanding very clearly, the dangers on the horizon. He's already described these people as the apostles of forgetfulness.

They think they've resolved the question because slavery is no more, but he knows about Colfax. He has heard about Vicksburg and Hamburg, South Carolina, the violence that is taking place across the South, and his friends, the people who were once anti-slavery, have turned their backs. And that's when he declares, "I don't want alms.

I want justice".

And that part of the book truly shocked me, the failure of those allies, the statements they made. Whitman.

Yeah, when we read Whitman's Leaves of Grass and you read the first edition, it's an anti-slavery poem But by the time you get to the last edition, he's redacted it all because he didn't believe that these people actually could bear the burdens of citizenship.

He likened us to baboons.

And, the disaster that was the collapse of reconstruction led most prominently to the rebirth of the Ku Klux Klan in 1915. I

mean, there was a decision by government to address the extralegal violence of the Klan. Those laws in 1870 were designed to prohibit the violence, the congressional hearings around the Klan aimed to snuff them out, and the courts made it possible for them to return.

In 1915, they were reborn in Stone Mountain, Georgia. Now, mind you, it's happening against the backdrop of the anniversaries of the Battle of Gettysburg and the like. The Klan emerges and they're emerging as a defender of America first. It's interesting though, Brooke, they're not just simply identifying Black folk, because by the end of the 19th century and the turn of the 20th century, the pressures of European immigration, Jews and Irish Catholics whose loyalty was to the papacy, those swarthy Italians, those Europeans coming from those S-hole countries threatened the cohesion of the nation, and the Klan took it as its role and responsibility to defend America first.

And they used the phrase, that is their phrase, America first. So jump to 1926. What was top of mind for America at the 150th year mark? What did the sesquicentennial celebration look like?

it was a disaster. Unlike the 1876 centennial celebration, which was by every measure a stunning success, the sesquicentennial was mired in corruption.

This is how South Philly, for example, got built. you have the corrupt politicians making sure that the exposition would be held in South Philly, which was basically a swamp. There was this attempt at a fair, but by this time technology had outpaced the exhibits. This was

like a failed world's fair.

Exactly.

Whereas all the technology in the one 50 years earlier-

Had everybody gasping, "Oh my God, look at America's technological prowess." In 1926, this is the Roaring '20s. Only the United States can have the Roaring '20s after the Spanish flu. After all of that death, we're gonna describe the '20s as the age of the Charleston and the Jazz Age, but it's also the decade of the Klan.

It's at the height of its power in the 1920s, and its seminal achievement is the Johnson-Reed Immigration and Nationality Act of 1924. That put in place national quotas. It, in effect, codified the idea that whiteness defined the substance of American citizenship. And so this is really important in the way in which I'm telling the story in the book because the 1920s represent this vexed and complicated expansion of who was considered to be the white America.

You hear it in Teddy Roosevelt, you hear it in Woodrow Wilson, you're gonna hear it in Calvin Coolidge. They're trying to beat back the nativism of the Klan in an interesting sort of way. Congressman Johnson, who co-authored that piece of legislation in 1924, was actually a member of the Klan, and Senator Reed from Pennsylvania represented a state that had over 250,000 members of the Klan.

At some point, the Klan claimed about 6% of the American population as its membership. Not that everybody had to wear a sheet or a hood, but the Klan in so many ways represented the common sense of white America in this moment. So-

And how was that reflected in the celebration?

Initially, the Klan was approved to hold its annual convention on the grounds of the celebration of the 150th anniversary of the nation.

They were gonna celebrate the flag and burn a cross at the same time. And if it wasn't for a coalition, listen to this coalition, a coalition of Irish Catholics, Jews, and Black folk in Philadelphia, it would've happened. A. L. Sutton, who was one of the key organizers of the 1926 sesquicentennial, was purportedly a member of the Klan, and he punished people for blocking this, they called it a Klanvocation.

One notable exclusion was that among the thousands of veterans celebrated for their service in World War I, who led the opening day for the 1926 celebration, there wasn't a single African American among them, despite 350,000 of them having served during that war.

Let's talk just for a moment about the madness, referred to it when we began the interview.

The reason why churches could buy and sell slaves to support its charitable operations, the lunacy of trying to reconcile those things.

The way the country has historically finessed divided soul, Brooke, is that it argues that white people are the possessors of freedom to give and to take away. So if the country is divided between the idea of the country as a beacon of freedom and as a white republic, the way you finesse that division is just simply make freedom the possession of white people.

What can we do for the Negro? What can we do for the slave? As if racial justice is a philanthropic enterprise, a charitable gesture. And then the moment in which, you admit to, of the horrors, you admit of the racism, that admission is supposed to bring forth absolution, and instead of bringing forth absolution, it brings forth another demand for a more just world, then that sentimentality morphs into white rage.

Because as Baldwin said, "Sentimentality is always a mask for cruelty."

Define sentimentality, this pain that you feel for someone else that has a limit.

Those feelings are really about you and your moral character. It has very little to do with the actual object of the sentimentality, right? it doesn't come with responsibility.

This is what Oscar Wilde is saying.

Can you recall that quote?

Oscar Wilde, in De Profundis, thought of the sentimentalist as, quote, "One who desires to have the luxury of an emotion without paying for it."

first I will say there's a book by a woman named Hannah Spahn, who is a- Yeah ... german, Jefferson scholar, there are such things- ... who wrote Black Reason, White Prejudice, and is talking about how African American people from the very beginning have, took the Declaration, and they basically turned the Declaration into the thing that we know it is now, the way we see it now- as America's creed, talking about equality. And s- and she lists the, some of the people who are involved in all of this, but it's, it, as I was suggesting, it was marginalized people who are outside, who thought, outside of society, who didn't have power, who thought that the Declaration could be something that would be useful to them.

So you have individual freedom suits where people are citing it. You have the petition Prince Hall, you mentioned that, and other African American men in Massachusetts. Vox Africanorum was a, wrote an editorial, a Black man who wrote an editorial in the Maryland Gazette that talks about the Declaration and what it should mean for slavery.

And Lem- Lemuel Haynes, who was a person who was pretty famous in his time, he was an, a New England minister, he was the first Black person ordained in a sort of organized religion. He was a Congregationalist, and then, became involved, with the new divinity, field, uh, school of theology, and he wrote a book called Liberty Further Extended...

not a book, an essay, Liberty Further Extended. Some months after the Declaration came out, Washington had urged the, or ordered, I should say, not urged, he was General Washington, he ordered the Declaration to be read to the troops. And Lemuel Haynes was mixed race. His father was Black, his mother was white, and he had joined the Minutemen, and then was part of the Continental Army, so he probably heard the Declaration when it was read to the army.

And he writes this essay, and he basically says, the words of the Declaration, he begins that the preamble, he uses that at the be- very beginning, suggests that slavery was sort of- sh- suggest that slavery should not exist, and that the revolutionaries, with the revolution should end the institution of slavery.

And it's really the first extended discussion of the Declaration. Now, it was not published at the time, but it was shared the way ministers shared sermons and so forth, in the community, so it was known to people. He goes on to become a minister to a white, to white churches- ... in, in New England, and, it, he's the first Black person to get an honorary degree in the United States in Middlebury Collo- College in 1804, and lectures at Yale in 1814.

So he is a person who... And had a biography written of him three years after he died. So this is a figure who most people don't know that well, but what carried this idea of the Declaration that we have come today, to view today, and then David Walker, as you mentioned, and then, Frederick Douglass, and then King.

Everybody, all African American people who have been leaders in some fashion look to the Declaration and those words as the basis of their claim for being American. And that not only with Black people, but women, all kinds of groups who've been m- marginalized, use it that way.

Yes, please, David.

I have a favorite new example for you, not new, but of the use of the Declaration is by African Americans. Some of you may be familiar with what was called the Silent March against lynching in New York City in 1917, led by James Weldon Johnson and W.E.B. Du Bois. I happen to be writing a new biography of James Weldon Johnson.

And this was 10,000 Black folks marching Fifth Avenue in New York City, women all dressed in white, men all dressed in black, children. But out front, and there are plenty of photographs of this, right out front was a huge banner that simply read, "We hold these truths to be self-evident-"

... through,

through the right of, doctrine of consent.

They didn't state their source or name their text. they didn't even have to say, but right out front- This was a march against lynching, which was a huge problem at that moment in time. But what do they put out front?

The Declaration.

I- Why not?

Yeah, I-

Everybody had done that for a century already, Yeah, I am, have had the experience and of many, going to many gatherings- Yeah ... that, of Black organizations and so forth- Sure ... which mention the Declaration. The words come up-

Yeah ...

all the time, and because it's sort of part of a tradition. So it has been something that, that has been a part of the community, and I think countering people who said it's not true because we're not equal in the sense of talent or whatever.

but they were obviously fixated on the notion of human rights. Yeah. Oh, you're saying natural rights or whatever, that it's something that inheres and something that people have just by being born. So it, it resonates with people very much.

It gave us our civic language.

Oh, yeah. And almost everybody knows it.

it's... Actually, uh, there was a Black historian named Benjamin Quarles. Some of you may have read one of his seven or eight books. But in one of his essays, this was... He was from the 1940s through the '70s and '80s. Quarles once said, "No one ever refused to allow America to de-revolutionize its revolution like African Americans."

De-revolu-- by that he meant using the Declaration of Independence, appropriating it, appealing to it. You can't de-revolutionize it. It, the words they belong to everybody.

that's the thing about writing, literature, a poem, or anything that you say, you might have a particular vision of what it means, but it takes on a life of its own.

And particularly if it's true, and people will latch on to

that. That's right. Yeah. Particularly if it's true, that's right. Yeah.

Yeah.

Hey, Brian.

for me and for people of, my generation, I think it's fair to say that our understanding of the Declaration itself was shaped by Martin Luther King, and especially his concept of a promissory note.

Yeah.

So he looks at the situation, he says, look, even when the words were written, you have slavery."

What hypocrisy.

They're, you're talking about all men being created equal and some men and women being held in chains, owned by other people, traded like property. What kind of a principle is that?

But King doesn't go down the route of saying the country's bad, principles are wrong. Let's be French revolutionaries. Let's start here, zero. He doesn't do that at all. He says, "No, the principles were good. We have nothing to be ashamed of about our principles. What we have to be ashamed of in our history is when we have, from the very beginning, failed to honor our principles, failed to live up to our principles."

So those principles were a promissory note and- What the civil rights movement was asking for was payment on the note. long overdue, but we want that promise to be fulfilled. I think, c- certainly from my generation, that is what we conceive of the Declaration as being. we don't treat it just as a, an antique document about breaking with Britain.

Of course, that's very important and- ... fundamental. But we see it as a promissory note. So wherever there's injustice, you say, "No, wait a minute. That's in- incompatible with these principles." Now, you may have a debate, maybe a legitimate debate, about whether something is or isn't- unjust, but whoever perceives an injustice or thinks there's an injustice there, looks back to the principles of the Declaration to say, "This has gotta be righted. We've gotta make good on the promise."

And people all over the world have done that. Absolutely. My colleague, David Armitage, has written a book about the influence of the Declaration- Yeah

ac- around the world, 'cause people see that- It traveled everywhere ... traveled every place. Everywhere. And anybody who feels that the situation needs to be rectified, that justice is a problem, look to the Declaration for that.

Absolutely. And David was just on, the We The People podcast this past week- Oh, cool

here at the National Constitution Center. yeah. So if you're interested in learning about the Declaration and its influence around the world, you can listen to that interview with David. He also wrote an essay on it in The Promise of America. Would also say there's been so many, rich primary sources that everyone has talked about today, and if you go to the interactive Declaration on the Constitution Center's website, you could read Lemuel Hans- Haynes' pamphlet, you can read, I believe Frederick Douglass, David Walker, Elizabeth Cady Stanton and the D- Declaration of Sentiments.

There's a lot of primary sources there to see in key historical figures' own words how they've used the Declaration of Independence to push for a better America. And then I guess for the entire panel, I'm curious how we think about, there's obviously as we, move and, and look to celebrate America at 250, part of what we wanna do is understand these principles of the Declaration, the Constitution, how they've operated in history.

Today, we live in a very divided America, and I think a lot of Americans sometimes lack hope as to what's going to come next. How much can these principles help provide a frame for conversation that could unite us versus how much are they inherently unstable? Because you have a lot of people laying claim to them for different visions.

Sort of how do you think about the stability they bring, versus this possibility of the, still the radicalism of these ideas?

First, there's always been, There's never a universal consensus about the meaning of the Declaration and what it stands for America. some people see it as a creed d- that, defines what Americans should believe in, w- who we are, and the one of the things that makes us an American, that because we believe these things in the Declaration and we believe the Constitution.

There's always been a strain in America that suggests that it is not a creed, that in fact, being American is about something else. It's about being a particular race. It's about being, having a particular heritage. And so if you say this, if you see America as a creed and a belief in equality and all the sort of aspirational nature of it as defining America, you might run up against people who say that's not true, that it is m- America is not just an ideal, it is not a creed through the Declaration, and that tension has always been there from the very, very beginning.

and it's still here now. So I could say these things, I could put forth the Declaration as a creed and something that could help make us, take us to the, into the future, but there'd be a lot of pushback against that. So I'm at a moment right now where I'm not sure what that actually would mean to people, given the kind of divisiveness, the way we're, at each other at this moment.

I interviewed Lonnie Bunch, the secretary of the Smithsonian, the first African American secretary, and he said, in many ways, the bicentennial celebration was also a celebration of white ethnic America.

The children and grandchildren of the people in the 1920s who were considered infestations are now claiming the revolution as their own.

How did they do that?

Give you an example, the anti-busing movement. This is happening in Boston. So judge issues a ruling trying to desegregate Boston schools.

Many of the communities in South Boston and the feel the judge's decision is an affront to their liberty, shipping these Black kids into their schools and shipping their kids away from their neighborhood into these other schools. There's this really serious protest, and this 1975 wonderful piece in The New York Times, "Who Owns 1776?"

You read these men and women who are anti-busing claiming the revolution. They are suffering the tyranny of King George. The judge, of course, is King George. These are the children of the children who were considered a pollution of the Nordic stock. The irony of history, my God.

Sociologist Robert Bellah believed that America reflected commonly shared religious beliefs, which informed and shaped political debate.

He referred to this as America's civil religion.

Yeah. John Winthrop, as they were making their way from the old world to the new, declared the North American continent as the city on the hill, saying that this was a bounty that God had given. Reagan would add an adjective and call this the shining city on the hill.

But this is also about the sacrality of the Declaration of Independence, of the Constitution, the Founding Fathers kind of being mapped onto the apostles with our own version of Judas, Benedict Arnold. The American project gets read as divinely sanctioned because animating our sacred documents are enduring metaphysical principles.

Bella says that these enduring principles provide an underlying cohesion to the country, and what I'm suggesting in the book is that wherever you hear talk of cohesion, wherever you see this burning desire for consensus, usually it's hiding the roiling chaos underneath.

But those conflicts roiling beneath, television was now firmly established in people's homes in 1976.

They couldn't hide quite as well as they had before.

Oh, absolutely. I was seven years old. My mother had me in red, white, and blue pants. it was such a kitschy kind of celebration because corporate America was everywhere. you even had red, white, and blue whoopee cushions. I remember trying to figure out what kind of music was the Mormon Tabernacle Choir singing.

I'm from the coast of Mississippi, right? So this was piping in, and I thought- Is that where you

grew

up? I grew up on the coast of Mississippi, So television meant that you didn't have to have the celebration in one place, so this is the first time in the milestone anniversaries that the celebration isn't in Philadelphia.

But it also generates a kind of de-centered story. You still had the flotilla coming into New York City, the freedom wagons, and all of this other stuff, but, the conflicts, the tension was there. So even as people are talking about union, unity, and cohesion, you get the image in Boston outside of City Hall of a young teenager attacking Ted Landsmark, a Yale-trained Black lawyer, with the American flag.

I remember Martin Luther King observing, and this is by no means an exact quote, that white people could be moved by the cruelty of fire hoses and vicious dogs wielded by Southern sheriffs to make changes, but they were never really eager to change the system to allow genuine equality. What I'm reflecting on is the white tears, the sentimentality- There you go

referred to in the earlier segment.

You got it. That's the argument.

Yeah. With no willingness to sacrifice behind it, because you have to change a system rigged to deprive a chunk of Americans equal rights, equal access to generational wealth.

Yeah, that's it. because the book is not just simply directed to loud racists.

That's too easy. It's really addressed to those people who think that they are, at the heart, decent five years, six years ago, we were all in the midst of a racial reckoning.

After George Floyd.

We were in our homes. We all, we watched it over and over again. People risked their lives. I was on television crying.

It was a moment, a horrible moment of unity.

And then in a blink of an eye- Yeah ... we find ourselves here, and the only thing I can conclude is that folk were lying. They weren't telling the truth, or maybe they didn't have any place to land, and they just went back to their regular lives and let the status quo return.

But here we are in a moment of the great capitulation. Universities have bent the knee. The Voting Rights Act is gone. They're redistricting right now. They have gutted the infrastructure of the mid-20th century and what that moment produced. They have ripped it out.

Which brings us to the present day.

Yeah.

So in 1826, we were still a baby nation. By 1876, we were tapping into a deep wellspring of violence to kill off reconstruction after the Civil War. In '26, we'd won a war but lost the narrative as the Klan surged, progressive politics embraced immigrants and the white working class while ignoring the systemic practices arrayed against America's Black citizens.

By 1976, we had shed some innocence, but not enough to kill off the powerful idea of white supremacy, and I'm reminded of that opening line from, Samuel Beckett's novel Murphy, "The sun shone, having no alternative on the nothing new." So- Oh. ... where are we now?

That's just pitch perfect. Here we are doubling down on the ugliness that has haunted us since the beginning.

JD Vance, on July 5th, 2025, at the Claremont Institute-

...

delivered a speech where he said, "America, it can't just simply be an idea. That's not enough." He put forward an argument that the country was based on blood and soil.

Blood and soil, another phrase taken up by the Klan, along with America first.

Ugh. They're not that ahistorical. The people who come up with these terms must know where they came from.

the echo in some instances is purposeful. I think it's really important for us to understand that in this moment, white nationalists have seized control over the government, and they're gonna tell a story of the country's beginnings that will reflect those commitments.

What's so fascinating about the end of the 19th century and the turn of the 20th century was you had the Gilded Age, the rich oligarchs who seized control of government. You had the consolidation of Jim Crow, and you had American empire. All of that was happening at once, and here we are in a moment where hatred, greed, and selfishness is eating the lining of our bellies.

And we will see what we will do on this 250th in response.

So how's our celebration looking to you?

Oh, my God. I was actually interviewed not too long ago by a younger reporter who was asking me this question: "Is it the case that if we celebrate the flag, we are going to be read as MAGA?" And the question revealed, at least to me, and I think it was certainly what motivated her, that the celebration of the nation has been hijacked by MAGA.

I never claimed possession of the flag. Usually, patriotism to my ear sounds like a rebel yell. It makes me worry who's saying it. But in this moment, I think it's our task to render the vast and vibrant diversity of this country as a rich counter to the nonsense we're going to hear come July 4th.

Towards the end of the book, you write, "I cannot help but think that Donald Trump and his supporters believe in some way that his election amounts to the end of American history."

Yeah.

What do you mean?

Because America's salvation was secured in its beginnings.

Assured by God.

They hate more perfect union talk.

They can't stand it because more perfect union talk requires, even in its own kind of Pollyanna-ish way, a confrontation with our failures. Now, Barack Obama, you got a contrast with the opening of the presidential center and the UFC fight, right? You got the contrast between these two stories. To me, both of them trade in fantasy.

We need to get rid of this talk that we're somehow this exceptional nation chosen by God. We need a more blues-soaked sensibility. We need to grow up. We can't grow up if you don't admit who and what you are. I think the power of the country resides in the phrase "we the people." It's just we've never been clear on who the people are.

Now, Section C, PRESENT CRISIS

So this case came to the court, the manufacturers have asked the court to basically stay the Fifth Circuit's ruling on mifepristone, which was issued last Friday.

Justice Alito, who got this emergency petition, issued a one-week stay. so basically, the status quo before the Fifth Circuit's decision is now back in place, but only for a week, and there'll of course be briefing and whatnot on this question as it goes before the court. But Steve Vladeck, a friend of Strict Scrutiny, who has a terrific Substack, One First Street, noted, to me, that he thought this was unusual, the one-week stay, because as a general matter, Justice Alito, who issues a fair number of stays in his capacity as a circuit justice, often issues indefinite stays.

The stays that are of finite duration, like this one, which is only for a week, typically tend to be in the cases where he doesn't agree with the underlying claim. So not surprising, that he might issue, under that logic, a s- very short stay in a case dealing with abortion, because I think we know where he will be on this question when it does come before the court.

A bigger question will be where are the other justices when it comes before the court? Justice Kavanaugh is someone who wrote in his concurrence in Dobbs that, states should be free to do as they like with regard to abortion. This whole question of federalism and state sovereignty, that obviously has implications for Louisiana, which says that it cannot enforce its law and protect the unborn as it wishes to do if mifepristone can be sent into the state by telemedicine or by mail.

But- That leaves a lot of room for the court to make a decision that says, "Okay, Louisiana, you can enforce this and you can't send mifepristone to Louisiana," but what about the other states? the Fifth Circuit made this a nationwide ban, so even states that have more permissive laws with regard to reproductive rights would not be able to access mifepristone through telemedicine.

it would only be available through in-person dispensation, and obviously that makes it a lot harder for certain people who work, who can't get to a pharmacy, whatever, will make it harder for them to get access to this. So I think that'll be a real question before the court, who's here truly for federalism.

But I think that goes to actually uh, something I was thinking about reading your book, which is that sending the issue back to the states, relying on federalism sounds great, but it's also far more complicated than people tend to think it's going to be, because- Yeah ... states interact with each other.

Something that struck me was that you write that the Framers wanted an active president, quote, "Heavily involved in the day-to-day administration of the United States." You write about this in reference to the original design of the State of the Union address. But we have seen a massive expansion of executive power.

How do you think that design from the Founders has impacted the expansion of presidential power we see today?

So first of all, let's just talk about what the Framers wanted. They did imagine an energetic and, nimble executive who could get things done, especially in the context of foreign affairs.

And they contrasted the imagined, nimble, agile president with Congress, which was a multi-member deliberative body that was just going to be more sclerotic. I don't think, though, they imagined that Congress would be as sclerotic as our Congress is. I think they imagined a Congress that was getting things done and would be an effective check on a president that was perhaps too agile and too nimble.

But they were essentially meant to balance each other out. I don't think that they would have contemplated or approved of a president who had such a muscular understanding of executive authority, because I think they very much understood Congress to have very muscular powers, like enumerated certainly and limited in other respects, but also quite muscular, and muscular in order to be able to check the president and the judiciary if that was necessary.

The thing that they feared above all when they were writing the Constitution, and they were very clear about it, they were writing this in a state of trauma. This is a trauma-informed document. They had just come through the colonial period where the British Parliament and the British king had literally been on their necks incessantly, and then they just fought a revolutionary war against the greatest global superpower in the world, and they had done it with a government that was basically held together with, friendship bracelets and daisy chains.

And they were like, "Okay, we've gotta thread the needle somehow. We need a government that's strong enough to get things done, like wage a war, but not so strong that they're going to be on our necks all of the time." And so their whole concept was that they needed limited government. They needed every branch to have their own lane and to be able to do its own thing, and no branch could be so powerful because they feared that the consolidation of government power would lead to tyranny, would lead to the oppression of the people, and that's what they didn't want.

So they structured a government that divided power horizontally between these three branches and then vertically between the federal government and the states, and they hoped that initial structure would be enough to prevent the consolidation of government power, but they wanted limited government.

But why weren't there... I can't go back. I'm not a Founding Father. I wouldn't have been allowed to be one. No. But why weren't there stronger protections against that kind of muscular presidency? This is, Trump is a recent and very bad example, but we've seen that with Woodrow Wilson, and we saw that even with Andrew Jackson.

You mention Andrew Johnson in your book. And I keep thinking about the court's findings with regard to presidential immunity. Yeah. Did they just not think that a president would try this shit?

there's a really interesting quote. I think it's from Hamilton. they contemplated the idea that, there might be someone so intemperate that, maybe he would seize more power than was necessary.

But on the whole, they were pretty elitist, and they believed, for the most part, that the governing classes would be pulled from the classes of the educated elite from whence they came, right? So if you look in the Constitution, and I urge you to take a look at it, they're really distrustful of the prospect of popular rule.

They're really distrustful of ordinary people, the ordinary people. it's why we have an electoral college. The president's not elected by the people, it is instead elected by a subset of people who are selected by state legislatures who are then empowered to vote on behalf of the people of the state, but it's not by the people themselves.

I don't think they had the kind of imagination that would have contemplated someone like the president we have now a- and those who follow him. I think they always thought there would be this class of people from whom the government would be drawn, and that those people and their values would guide the country going forward.

And to be clear, I don't know that their judgment was that great. A lot of these people own people. that's never great. But they believed that these people had the best interests of the country in mind, and that they would going forward.

Last year, there was a lot of discussion about whether or not this country was in a constitutional crisis, or about to be in one, or has been in one.

But recently, I feel like I haven't heard anything about that. So after all of the time you've spent with the United States Constitution writing this book, are we in a constitutional crisis?

I think we are. The dog is looking at you, Jane, "Jane doesn't think there's a constitutional crisis?" I am- Come on, Jane.

I know.

I think we are. I think we have become so anesthetized to the excesses of this administration that maybe we've become just inured to it. but I do think there is a kind of constitutional crisis, in part because, and I felt this writing the book, there were so many times when I was like, "When can I lock this book down?

When can I send this to the publisher?" Because every day it was like, oh, there's a new war. Venezuela, is that a... can he do that? y- can he send the National Guard in to do that? there are so many moments where I was like, "I've gotta, really think about whether this can be squared with the Constitution, whether this is permissible."

And I think any time you're in that space where you're looking at your government and wondering, "Can they do that? Can they do that to me?" You might be in a constitutional crisis. you probably are in something of a constitutional crisis, because the whole point of a constitution is that everyone knows the terms of engagement, everyone's playing by the rules, and you don't have to ask those questions quite as frequently.

But I feel like we ask those questions every day. That seems to me the definition of a constitutional crisis.

People like to use the phrase, and it's very soaring and inspirational, but the way that we often distinguish the United States of America from other nations is not necessarily our prosperity or the thing I'll mention people say is what leads to our prosperity. and there, there are various formulations of it, and I'm gonna give you three of them.

The, all of which I've heard recently. America is an idea. America is an argument. America is an experiment Which of those do you pick? And if it's all of them, explain what those mean when people use them.

for sure it was seen as an experiment, 'cause the rest of the world was monarchies, and these crazy people in the new United States, "We're gonna do something different.

We're gonna create a republic. It's gonna be grounded on public opinion in a way that no monarchy is. Will it work? We don't know." This is part of what I love in studying the time period, is they all the time are trying to decide if it's gonna work, and are anxious, and they think one stupid mistake is gonna take it all down, and it's the improv of it that I find really fascinating.

So definitely they conceived of it as an experiment. They also understood... So this goes along with what you said. The United States was not a kind of blood and soil country. It was grounded on ideas and debate and compromise, and not on warfare and coincidence. That's the first paragraph of the first Federalist essay by Alexander Hamilton.

All my courses I read this out loud, because what it essentially says is, and it gives you a sense of the, what they thought of as the significance of the moment. Hamilton says essentially, and this'll be a paraphrase, "We're deciding for all time if you can create a government based on debate and compromise, or whether nations are forever to be created based on accident and force.

And a wrong part, if we act incorrectly, a wrong resolution of the part we shall act may deserve to be considered as the general misfortune of mankind. We're deciding for all time if you can do this." Essentially, if you can create this kind of experimental government grounded on ideas about how government should work, and not grounded on the fact that we're all a sort of united ethnicity, or the end of one war and another war and the winner takes all.

It's grounded on an idea, and it's an experimental government grounded on the fact that a government based on debate and compromise can actually work.

But then both of those things cause and foment. That's a pejorative word, but I'll use it anyway. Foment the third thing that I mentioned, which is argument, and democracies can only tolerate so much argument.

w- one of the things that the f- the founders did not anticipate and would have been horrified about, and we take for granted, and we talk about every day, and that's parties and party affiliation What do you think the founders would say? I've heard other people talk about this. The proliferation and the rise of parties, how does that jive with our democracy?

they could not conceive of what we take to be the norm, which is that there are two national parties. The idea that the whole nation would join-

Fall into one or, one or the other ...

yeah, was bonkers, was something that they never imagined. They imagined faction, they imagined parties, all kinds of, factions bouncing against each other, that they assumed.

But the idea of two national parties was not something that they thought could possibly happen, and when, in the Revolution, what becomes known as the Revolution of 1800, the presidential election of 1800, it seemed as though the nation divided into two. Many people responded to that really fraught election by saying, "We can't elect presidents that way anymore, because look what it did.

It seemed to divide the people into two parties, and that's no good." So they understood and expected. They weren't naive. They thought that there would be factions and conflict and clashing, but the idea of two established, networked, professionalized parties, that they didn't foresee.

But what's interesting to me about that is w- we talk a lot about how polarized we are.

we're polarized, we're polarized. My question to you is, the very fact that most of the co- and there are independents, I know, but the very fact that 330 million people, and, lesser amounts along the way, can basically organize themselves into two big political parties, does the fact of that undermine the allegation and the observation that we're so polarized?

No, because, yeah, no, I understand what you're saying. But there's a some-

in other countries that you- you've got, 15 parties and the ones all the way on the left and all the way on the right, they're really far apart. And here what people get most annoyed about is when somebody says that Hillary Clinton is the same as a Republican.

So what's polarizing about the parties?

it is very useful to people within the party to be cohered and organized in the way that a party is. you can see... So parties, organized parties don't exist in the first 10, 15 years of the government. When Andrew Jackson comes along later, Jackson's the guy who says, if we network and organize, if we make it so that nationally there's a network and there are people responsible to other people, and think how handy that will be in winning elections.

Think how handy that will be in maintaining power." Party politics, yes, is part of democracy, but it's also really handy for people who want to get and maintain power. There's a practical component of it, which is why it ends up being, on the one hand, a useful tool and also a useful weapon.

I

guess all I'm saying is that, I hear the polarization language, and I feel it, and people feel very strongly about being MAGA or establishment Republican or Democrat. And then you go down a list of questions, issues, and there are many questions on which in America, I think more so than many other countries, absolute consensus.

Absolute consensus on, on a number of things. And then maybe this is the point you were getting at. There's a manufactured polarization, and maybe parties are to blame for that because that's how you get elected and you get into power. I want to talk about the frailty of democracy. So that makes a lot of sense to me in 1776, in 1789, also given the track record up until that point.

Now, there, there have been, periods of ebb and periods of flow with democracies around the country. There are organizations who track them, right? Are, are they receding? Are they growing? W-we don't have as many as we would like, but we have a lot of democracies in the world, and we have now been around for, checks notes, two hundred and fifty.

This is an easy one. I didn't do any math at all. Two hundred and fifty, two hundred and fifty years. And we talk about the fragility of democracy two hundred and fifty years on with traditions and structures and institutions. We are much closer to, to, to believing and to living in a society where these truths are self-evident, right?

When people talk about f-- the fragility of democracy, are they overstating it compare-- and is this a moment to think about wh-whether we're either overstating it or, boy, the nature of that kind of government is always going to be significantly fragile

Democracies are fragile. They are, and we have ignored that fact and taken democracy for granted.

Certainly throughout my lifetime when I, I probably like most Americans took it for granted. Democracy works, and we're a democracy, and l- everything's good, and, American exceptionalism. Democracy is fragile. it... They knew that from the beginning. There were many people who were not particularly keen on things being extremely democratic.

It's fragile because it's grounded on us. It's fragile because we, public opinion, we the people, ultimately should have and do have the power, which means we can be pushed or pulled in bad directions, and then bad things can happen. So yeah, democracies are fragile, and we... It doesn't feel like that because we see things, we see our country and don't think about the rest of the world in this way.

We're a really young country.

Right.

So on the one hand, we're all saying- But we're an old

democracy. But we're an old democracy

We- It's- We have lasted a good amount of time for a democracy. This

is true. Now, when you talk about democracy being fragile, I just wanna make sure that we're clear about this and I think what you're saying is, and I think this is my view, that's not a flaw, that's the design.

Yes.

Correct?

That is correct because-

So it's not sol- so it's not solvable.

No, it is not solvable. it is the, to me, a glory of democracy-

Yeah ...

is that it is grounded on us and we can shape it. And we, I think about this a lot, surprise, these days because Americans have forgotten. They have forgotten that public opinion governs in a democratic republic.

They have forgotten that public opinion rules. They have forgotten the power that, that we the people have when we come together, and that's a positive thing. It can lead to positive change. It means even in this moment of hyper contingency where we really don't know what the hell's gonna happen next, bad things can happen depending on the choices we make.

Good things can happen depending on the choices we make. So it's, it makes it fragile. It means that we can move things in a good direction as a people. It means that we should be able to come together and join on some... And you said it a moment ago that when you talk to people, there's a lot of consensus underneath- Yeah

the, ways in which people are being pulled apart. There is a lot of consensus, and I, I, I think about public opinion all the time because I honestly think Americans have forgotten the power of we, the power of we the people, and that when we the people decide something, come together and decide to do something, there's a power to it.

the great American State Fair, you stayed up for this last night- ... because you're a glutton for punishment. and- plus also it was an assignment

Jeffrey Goldberg has you in, as, , has you in some reins, and he's got a whip. Yes. He's "Yes, Nichols, you're staying up for the great American State Fair speech." No, I

think-

And so you did ...

I think it was m- I think it was more like, "Yeah, I'm gonna need you to be staying up. That'd be great."

God.

yeah.

I am the- Could you- Yeah ... have a t- cover sheet-

You could just- ... on your draft?

Yeah. If you could just file that'd be great. no, I'm the designated night owl, for a lot of stuff because I am a night owl. And, I said, "Sure, I'm happy to do it." And also, I have this long history.

I pride myself on being a Trump watcher, you know this. I u- I used to live tweet all of his press conferences. so I stayed up and watched it, and it was, it was trashy. the whole business was trashy, and I know that sounds, oh, that's snooty and elitist, but no, it was, it was just trashy.

and his speech was small. that's a thing. He- that's what I wrote about, last night. He took this thing that could have been grandiose, I started with a quote from George Washington. Actually, it wasn't a quote, it was an, it was from George Washington's last will and testament- and I think it's really important as the fourth approaches for people to know this, that George Washington in his last, he said, "I, George Washington," and he didn't say, "Oh, father of our country, great guy."

He said, "A citizen of the United States, and lately president of the same." For him, that was the most important thing, to be this, to be a citizen, And he understood, that we were all sharers in this great adventure, this great experiment, and Trump just doesn't understand any of that. He made it all about me, me, and I got no tax on tips, and, everybody was laughing at us two years ago, and now we're hot, and I totally trashed the Iranians even though that yesterday the Iranians told us to go, suck, go suck an egg about, n- nuclear inspections.

I'm gonna get the vandals who hurt the re- reflecting pool. it just went on and on, Tim. And the few times that he tried... Now, I don't wanna accuse Stephen Miller of writing this speech. As, as little as I think of Stephen Miller, I don't wanna tag him with this speech if it wasn't him, because whoever wrote this, it was a real achievement in crap.

i- but, the few times that Trump tried to be elevated or that he tried to, be presidential, he said things like the one that jumped out couple, at a couple of sp- "From the storied alleys of Boston to the streets of Philadelphia." Okay, first of all- Anybody who's lived in Bo- there's no such thing as the storied alleys of Boston.

Wow. they have some stories, and we won't tell them. Yeah.

I don't know.

But to the streets of Philadelphia. Yeah. I'm sorry, wasn't that a Bruce Springsteen song about a movie about a guy with AIDS? y- it just went on and on. skyscrapers and railroads and Normandy and Saratoga and...

But then he would go right back to the really petty, small, "Look at me, look what I did." and I'll finish with w- with one serious comment, which is that it shows that Trump and his people, they don't understand the difference between patriotism and nationalism, that patriotism is love of one's country n- for itself, for what it is, for its eternal characteristics.

Nationalism is my tribe is better than all other tribes. and that's the only way Trump can conceive of this. He kept saying, "We're better than everybody else. We're the hottest, we're the biggest, we're the best." He c- he can't just say, "America is worth our loyalty and our love because of the great thing that it is, that makes you so proud to simply say, 'I'm a citizen of the United States'" the way George Washington did.

I'm a sucker for that. I'll be cloying for a second. I- one of the first things I w- after I finished being a political hack and started, doing journalism and writing, one of the first things I wrote about, I wish I... I'm going from memory now, but it was about how there's, a disagreement between Washington and Adams.

Adams wanted him to be called something like His Excellency or something ridiculous. Your, it was

His Highness, I re- I, I remember. But it was something like His- His Highness ... it started with His Highness, Lord Pro- the protector of the American- Yeah ... people and their rights, blah, blah, blah, blah, blah.

Correct. And Washington's "No, Mr. President is what I want." Mr. President

will be

fine. And, uh, yeah. and there is something really moving about that, about what the country is supposed to be, and what we should be aspiring to, and what the office is supposed to be, that it goes without saying, our president has literally no respect for, interest in, or the opposite.

It's surprising to me that he hasn't tried to rename it, frankly. That might- I hate to give him that idea.

Yeah, let's not speak that one into reality. and, just to put in a nice word for Adams, and when Adams was beaten by his worst enemy, who got people to publish stuff about him like maybe he's a hermaphrodite, what did he do? He, like all good presidents, he packed up his stuff-

...

and he moved out of the White House, and he went back to his farm and said, "Okay, I'm done being president, thank you very much.

I'm gonna..." Trump, does not understand that. Trump thinks that America is great because he is great, and he made it great. I think, there, there's, a metaphor that I didn't want to use in the piece, but it's it's like marriage. a patriot, you look at your spouse and you say, "I love this person because of who he or she is, just because that, this is the only one for me.

This is, because this is a wonderful person that I know deeply and love." Trump's like the guy who says, "My wife's prettier than all those dogs." that, that lasts right up until, you put on a few pounds or you get a few wrinkles. but it's this very superficial love of country that says, "As long as, I'm making it great, then it's worth loving."

And when it's not, two years ago did you love your country? And, they're laughing at us. They're ju- one thing that patriots really understand is you don't care if they're, what other countries think of you. That's, you don't spend your day, chewing your nails and saying, "What did," "What does Russia think about us?"

Remind people what the Federalist Papers were and why they were extraordinary. and, and, and, 'cause, uh, people are gonna find this horrifically geeky, I've been rereading a few of them, which ones they should read as we get to July 4th.

Oh, boy. Okay. so the Federalists... And they actually, they aren't officially called the Federalist Papers.

Right.

That was a created, a title created in the 1960s. they're, they're essays.

That I didn't know. I just learned that today.

Yeah. They're the Federalist Essays- ... and they were a project by Alexander Hamilton.

He began them. He invited John Jay and James Madison to join him, and the idea was they were gonna write a series of essays defending what they hoped would become the new Constitution. It was for ratification, so every state had a ratification debate, a convention in each state, and the Federalist Essays were an attempt to explain to people why the new Constitution was a good thing and to explain away people's fears.

Now, one important thing about this, which I think particularly courts tend to forget is that the Federalist Essays were not intended to be objective. They were a commercial advertisement for the Constitution.

For one side, 'cause there was this other group, I believe they were very cleverly named-

the Anti-Federalists.

Anti-Federalists.

Yes, the Anti-Federalists.

Those clever people, yes. Yeah. And yeah, it was the Federalists saying, "This is a great kind of government. Please support it," and explaining away things that seemed threatening. They were a kind of advertisement for the Constitution. The idea was they were published in newspapers, and people could read them and see what they thought about the Constitution, and maybe the ideas could be used in ratification debates throughout- Yeah

the different states. So they were really important because they were essentially a series of newspaper essays so that the nation, and largely at that point it was a largely elite white male readership- Yeah ... could debate what this new Constitution was or might be.

Yeah, but what's extraordinary about them is, they're not that long.

Right.

It's embarrassing. Even though, even though they're, they are works of advocacy, and even though they don't necessarily make every argument they are thoughtful, reasoned, principled es- whether you call them essays or papers-

that were serious and serious-minded in favor of a political position and a political structure.

And maybe you could say it's the founding, so for the initial document. and then you think today In no circumstance would you have such a rendering of opinions and ideas, an articulation of public reason. There's a-- The famous philosopher John Rawls talks about public reason, which seems to have fallen by the wayside.

And what they could have done and what other people have done, particularly in more modern times, is you develop some stories and some anecdotes, and you have a stump speech, and you have some, boilerplate sloganeering. And if your society at that point has cars, you'll put them on a bumper sticker And you don't pay the public the respect of thoughtful argument, and that's what the Federalist Papers were.

When did we lose that?

But before we get to when we lost that, I wanna highlight that 'cause that's a really important point-

Yeah ...

is that the, they didn't have to have every state ratify the new Constitution. They took the people seriously, and they took the idea seriously that the American people, in one form or another, needed to buy into this for it to pass.

Same thing, most people don't know this about the Declaration of Independence, is that there were individual towns, particularly I think in Massachusetts, in Maryland. The Massachusetts government asked towns throughout Massachusetts to get together and debate independence, which they did, and they drew up their own declarations of independence and sent them to the Continental Congress saying, "We talked about this, and we actually like the idea of independence."

From the beginning, the idea was whatever was going on, and this is what I mean when I say grounded on the people, that wasn't just an idea. They were literally saying, "Okay, people, what do you think about independence? Okay, people, what do you think about this Constitution?" they created processes so that people would be able to sign on or not sign on to these major developments in nationhood.

Rhode Island did not initially say yes to the Constitution. When the government went underway, began, Rhode Island was not officially part of the union yet, and when George Washington made an early tour, kinda show his face in all of the new states and the new nation, he skipped Rhode Island because they weren't part of the United States yet.

So they took this seriously, the idea that Americans needed to, in some organized fashion, sign on to what was happening.

And they did it in a way that was thoughtful, respectful, dignified, and respected the intelligence of the voters. I'll give you an example of something that, that I'm reminded of that, that you have to do in law practice, right?

Not to use law practice as a model, but, the older I get and the more I practice law, the more I think that it might be as, odious as that might sound to lots of non-lawyers and laypeople. But generally, s- people-- speaking, people make-- People say, "Here's what we should do for X, Y, and Z."

And they don't say, here are the objections to my plan," and fairly lay out the obj- so I wanna do X, Y, Z, or I want, I wanna go into Iran, or wh- whatever the case may be. They say, "Here's what I'm gonna do," and they ignore, because they... I, I don't know if it's a, if it's a matter of lack of thoughtfulness or sharp practice or they don't really understand.

But they don't say what the Federalist Papers do, and other folks in time have done. The Lincoln-Douglas debates were like this, but that's also a century and a half ago. The objections to these are X, Y, and Z.

My response to X is this. My response to Y is this. My response to Z is this. So you look at a document, and maybe it elides, certain fundamental objections, but by and large you read the document and you get the sense that they're not only advocating a particular position, but they are fairly presenting, describing, defining the major objections and then overcoming those objections.

That seems like a simple thing in the public square, but it is really rare, and that's one thing that I think is important to celebrate, too.

I agree with you. And on a purely practical level, if you're creating and launching a government and you haven't done that, you haven't investigated and interrogated and explained things, you're starting out at a disadvantage.

there has to be, the starting point of a government, which is a s- a kind of weird thing to think about, but if you're starting a nation and you're starting a government, there has to be a starting point at which the people basically say, "Okay" I'm gonna sign on. I'm convinced. Let's see what happens.

there... In a democratic, any kind of democratic country, there has to be a starting point where, in one way or another, people at least willingly step up to that moment and say, let's give this a go." And that, I think that is an admirable and a distinctive thing about the founding of the American nation, is that they sincerely wanted Americans to understand what was being created and to essentially agree with the launching of it.

The fundamental weakness of democracy, or a fundamental weakness of democracy, and you've talked about this and written about this, and in my own niche, I think I have a parallel argument, that the best laws in the world, the best, most ably drafted constitution in the world, institutions, even if they have a long track record, don't do the trick, right?

it takes the people who are enforcing the law, interpreting the law, applying the law, running those institutions, and it's very difficult to legislate their personalities, their psychologies, their intellect, their mode of speaking. That requires civic virtue, and another word that you use is honor.

And I'm guessing for people who are outside of history and the political sciences, and who are physicists and mathematicians, honor is a pretty weak glue.

Yeah.

How do we make do with honor, Joanne, and what do you mean by it?

in the way that I've written about honor, it's not quite the way that you're talking about it.

So I've written about honor a lot as what gentlemen and politicians in the early years of the government of the nation believed was the fundamental aspect of who they were. They were men of honor, meaning they could be trusted, meaning that their reputations- were, could- were trustworthy.

They would

shoot you

in a duel.

And if you, if you say, "I'm dishonorable," I will shoot you in a duel.

Right.

so it was practical. It wasn't like... A- and I don't... When I say that honor mattered, I'm actually not saying these were all wonderfully honorable men. yeah. I'm saying their honor mattered because they needed it to be gentlemen and trusted and to have political power.

So that's what I mean by honor. But related to that, and along the lines I think of what you're asking, is the idea of good faith. The idea of, and it's what I think in essence a democracy is grounded on, that people come together. It's certainly ideally speaking, if you think about what's going on, for example, in Congress, in, in any Congress, but in a legislature, the idea is people come together and operate on a certain level of good faith, that they are gonna follow the rules, they're gonna have an equal playing field.

They're gonna come together, debate, compromise, fight, argue. in the case of the guys I write about in the 19th century, hit each other over the head. But in the end- Yeah ... they will be abiding by the system that they have put in place, and in good faith, allowing for these contests to happen and abiding by the result

And Finally, Section D, CAPTURE & RENOVATION

So I wanna note here that as Rhiannon, mentioned, this is a complicated opinion. It is a long opinion. It's so complicated that a lot of sources, if you research it, use charts to explain the holdings of this case. And so we're gonna hone in on a few particularly egregious aspects of it.

The opinion starts by essentially rejecting the idea that money and speech are different for First Amendment purposes. In short, the government had argued that regulating financial expenditures was not the same thing as regulating speech. It's just regulating someone's conduct and it implicates speech.

And the court says, no, spending and political speech are so closely intertwined that they should be treated as if they are the same thing. That's the heart of the argument made by the free speech crowd on this issue, that limiting spending on a communication amounts to restricting- the communication itself. So the fundamental problem with blurring this distinction between spending on speech and speech itself is that restrictions on political spending don't limit your ability to speak per se. They limit your ability to reach an audience. They're not controlling the content of the speech, right?

They're just creating a logistical impediment. And to really understand this, you need to understand how the First Amendment has been interpreted. Freedom of speech is not, and has never meant, that the government cannot put any restrictions whatsoever on speech. Instead, courts have interpreted it as dependent upon, the nature and context of the speech involved.

So all sorts of limitations are allowed. There are limitations on the use of obscenity or speech inciting violence, limitations on speech in schools and prisons- ... and in advertising. Yeah. All of that has been upheld. So it's a little strange here that the court draws a line in the sand and says that unfettered campaign spending or unfettered, spending by rich individuals is a line that it cannot cross, and it puts the right to free speech in a very weird place.

The most succinct way I can put it is, are you and Jeff Bezos both protected by the First Amendment?

I guess so, yeah. Sure.

But what does that actually mean? If political expenditures are protected speech, do you really enjoy the same freedom- Exactly ... of speech as Jeff Bezos? Of course you don't.

Your experience of that right is so distinct from his that to describe it as the same right would make the word lose all of its meaning. Anatole France famously said- ba, ba ... that the law. Yeah, we're doing a couple episodes straight of us showing off French pronunciation. that was my best effort. famously said that, quote, "The law forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread."

Yeah. This is the same idea, inverted. The law protects both your and Jeff Bezos'- to buy an election.

Right.

Whatever underlies Jeff Bezos' right to spend money on politics- ... it's a right that you and I don't have, in the sense that- ... you cannot do it and you cannot possibly dream of doing it.

So the court is, by equating money and speech, cementing into place a right that is only actually experienced by an extremely small percentage of people who happen to already be powerful and already have undue- Yes ... influence on the political process.

Right. I know we already said, people didn't understand it as well in the 1970s, but Anatole got this shit in the 1870s.

Yeah, good point. That's right. very frustrating. And especially for, third party candidates, this is, an unreal self-own. This is, a fucking- Yeah ... historic level of shooting- Yeah ... yourself in the dick. 'cause as it turns out, money tends to flow, surprisingly, to people already in power, like incumbents, or to people in position to actually exercise power- Yes

like the major parties. So in fact, even with contribution limits, it's incumbents in the major parties who benefit the most from big fundraising. Yep. It's not hard to figure out that between big money donors, bundlers who, gather together a bunch of big money donors-

...

and, corporate spending on independent expenditure committees, that, it's basically, or at least up until a few years ago, harder than ever for third parties to compete.

Yeah. The only thing that's really leveled the playing field was, like, Howard Dean and Obama and then Bernie- blazing the trail with online- Yeah ... small donors. And even with that, it's, a massive uphill battle. You have to have, real charisma and, like- Yeah ... a real audience. So yeah, and there are other results.

It's not just the elections themselves. Like politicians now, they spend several hours a day fundraising, which means that they spend more time attending to and talking to their donors than they do their constituents. house members, it's like immediately after their term starts, they're into their re-election since it's only a two-year term.

And so third party interests are just like- ... their god. Who gives a shit? if you're not giving me money and you're not voting in a primary, like I do not- Yeah ... fucking care. Yeah. At all.

yeah. and data collected over the course of the decades since Buckley, like it bears all this out.

The idea that big money spending doesn't have a profound effect on policy and politics, like that's just not true. And of course, it's been completely disproven that large donors are spread evenly across the political spectrum. Yes. We know that the wealthy minority in the United States have politics and policy preferences that are profoundly different from the average person, and we know that lawmakers also will rush to do their bidding rather than being beholden to the general public.

Right.

the court speaks about this as if the speech rights of the wealthy to spend money on political messaging are the only rights being implicated here. But limitations on their right to spend freely are also protecting your freedom of speech by ensuring that your voice is not drowned out by the wealthy and powerful.

Right.

So when you interpret the law without taking into account these preexisting power structures and disparities, what happens is you end up effectively codifying those power structures into law and insulating them from attack.

And this isn't just like a quirky, like weird bit of logic that the conservatives or the court engaged in here.

It's like endemic. The conservative project as it currently exists is about protecting existing power structures and, if anything, making sure power flows up- ... from the powerless to the powerful even more, and that's reflected in conservative jurisprudence as much as it is as in their policy and their politics.

And this sort of like dull reasoning that's completely divorced from reality, it's like characteristic of a lot of the worst decisions in Supreme Court history from striking down minimum wage and child labor laws in the 1920s premised on the idea that, a kid is- ... in equal bargaining position as like-

Right

his employer or her employer. Right. as it is today, like you see these sorts of blinkered decisions and these stupid arguments as well, and it's like- It's the same idea that animates- Yes ... all lives matter. Nobody who says Black Lives Matter like disputes that. The whole point is that our society does not- Exactly

actually treat all lives equally. But that's basically what this is. It's like the free speech version of all lives matter.

Right. Yeah, I think the bottom line on this point for me is a real and meaningful reading of the First Amendment needs to account for the fact that part of the purpose of the freedom of speech, according to both the founders and our courts, is to promote the diversity of ideas.

And in that sense, it's not just that allowing uncapped political spending is simply unnecessary to protect free speech. Yeah. It's that it's actively detrimental. Yeah. It results in rich people's voices being amplified, while everyone else is denied an equal platform.

Yeah, exactly, and that's really like what legal formalism gets you, rules that are divorced and completely separated- yeah.

Yeah ... from the purpose that they're serving. And, we've said it before, conservatives often weaponize that separateness to claim that the consequences of a legal rule just aren't relevant, and that what really matters is the maintenance of an internally consistent framework. But the consequences of the legal framework that they use, which they claim is neutral, just happen to align beautifully with the conservative political project.

So I think I want to, to now reflect on just a few cases of understanding how this institutional landscape, that is what becomes of the separation of powers, what becomes of civil society, how do we think about the overthrow of tyranny and that moment when they have a chance for democratic flourishing? Let me talk about one first of all that is near to my heart that just didn't work That would be the Russian Revolution. Not the Russian Revolution of 1917, we all understand why that didn't work, but the revolution of 1991. And there is a story, the Soviet Union collapses in December of 1991, and, Boris Yeltsin, a few months later is the president.

he's the president of Russia before the Soviet Union collapses, and then he becomes the president of the Russian Federation, which includes some other countries as well, some other former, former republics as well The general story that you hear about this is, they just didn't have the DNA, they just didn't have the tradition.

but I wanna suggest to you that this is actually an institutional story, and that institutional story is that you had too strong a pow-- a president, too strong an executive, who we all loved, Boris Yeltsin, we all loved him, but who failed to actually exercise power through institutions. At an early point in his presidency, he got sick and tired of the legislature, the Duma, as it was called, doing things that he didn't like, and so he just started ruling by decree.

What, in that circumstance, happens to the Duma? It becomes weaker and weaker because institutions have to be used, people have to see them succeed, and then they began to get this normative power. Interestingly, it would have maybe worked if it had just been Yeltsin or had he transferred the presidency to a man named Boris Nemtsov, who would later die, in, what was an assassination.

But Boris Nemtsov might have treated the strong presidency differently than did the man that he chose, Vladimir Putin. And so one way to think about institutions is, if they cannot constrain the worst, then they're not very powerful. It's not about constraining the best that is important for institutions and the separation of powers.

It's about constraining the worst, and I think Boris, Boris Yeltsin's decision to give that to Vladimir Putin is an example. Now, there's another one where it didn't work for the opposite reason. That would be Afghanistan. There, you had too little centralized power in a country that had s- twenty-five years of civil war, that had never really been an integrated country in Kabul, and we tried to make it an integrated, country in Kabul using the landscape that was there, who were the warlords, who actually each took responsibility for their part of the country.

And you were never able to get a strong enough government, central government in Kabul to control those circumstances, and therefore terrorism arises within them, some make their deals with terrorists, and so forth and so on. So this is an example of too weak a, an executive. So we have an example of too strong an executive and now too weak an example-- a too weak an executive.

✂ SUGGESTED CUT START — drop Tunisia/Poland/Kenya middle examples

Now, a couple of cases where I think you could argue that it did work The, transition from that moment at which the old is thrown over is one thing that we all will remember as the Arab Spring, where the old is thrown over and there are great hopes about whether or not the moment for democracy has arrived in the Middle East.

And probably the country that did best was Tunisia. There is an interesting institutional story in that almost all of these other cases, Egypt, Algeria, et cetera, were located in the capital, not in the country as a whole. But Tunisia had a nationwide union movement that became one of the sources of institutional stability outside.

Unfortunately, it did not last, and Tunisia is now moving, more and more toward too strong an executive and toward, and toward tyranny. another one where it did work, Poland. The story about Poland is often a story about the overthrow of Soviet power in Eastern Europe and the rise of solidarity.

But what is forgotten is that in 1981, when martial law was declared in Poland, Solidarity, which had been formed in 1979 under Lech Walesa at that shipyard in Gdansk, had to go underground They were sustained by a very odd troika, Ronald Reagan's CIA, the AFL-CIO, since they were after all a labor union, and the Vatican.

Pope John Paul II, a Pole, who had obviously a lot of contacts to village priests everywhere, and Solidarity was sustained with things that now seem a bit archaic, but printing presses, so they could continue to get their message out. And when communist power could no longer hold, the next moment of revolutionary possibility, Solidarity was already organized.

It was able to emerge very quickly to negotiate with the communists in what was called the Round Table Negotiations in January and February of 1989, and ultimately to take power in the fall of 1989. And then finally, one-- two others, one that I think people don't recognize, but I was myself intimately involved in.

In 2007, there was an absolutely horrible Kenyan election, contested election. Part of the problem for Kenya is that their parties are ethnically, isolated. So you have parties for each of the ethnic groups in Kenya. As you might imagine, this means that, any election is really very fraught. And this one in 2007 was particularly fraught.

A thousand people had died in tribal and ethnic violence. And I was asked by Kofi Annan to come and help him negotiate a government of national, r-reconciliation, which we did. Not very easy, but it came about. Fast-forward five years later, there was a contested election in, Kenya. But this time, they said, "We will take this to the electoral courts and let it be resolved there."

That is an interesting institutional evolution where people somehow decided we don't want to go that route of violence anymore. We will have this institution called the Electoral Commission, the Electoral Courts, to decide it. Every Kenyan election is, is a high wire act, but knock on wood, until now, there's been nothing that looks like 2007.

And so the lesson here is that institutions can start to evolve and get normative power.

✂ SUGGESTED CUT END — resume at Hungary case

And then finally, one that we've just seen, which is particularly interesting, and that's the fall of, Viktor Orbán in Hungary. everybody talked about the democratic recession and how Hungary was an example of the democratic recession.

But very interestingly, it looks as if some of the institutions survived during that, 25-plus years. It also looked as if one institutional intervention from the outside mattered perhaps more than others. Hungary was a member of the European Union. The European Union had begun to sanction Viktor Orbán about 15 years ago.

It was therefore not, the, the benefits of European Union membership were not, available to Hungary, and Hungary sunk to be the 27th economacy-- economy in the European Union. That is what Magyar used against Viktor Orbán in the elections, and Viktor Orbán is no more. Fortunately, he agreed to leave power, but it shows that institutions can sometimes be, inchoate or, even latent, but will come back to the fore.

Now, all of the stories that I've told you is, uh, are stories about the moment of revolutionary opening and then whether or not they move to that next stage of at least democratic resilience, if not consolidation. But they're institutional stories, and I want to close here. There is too much of a tendency to explain whether or not you get from the moment of revolution to democratic consolidation or resilience by reference to something that political scientists, when they don't know what else to call it, call Culture is a residual category that assumes that there are some people who just don't have the DNA for democracy, and you hear it in almost every case.

Or they don't have the traditions, or they don't have somehow the cultural traditions of democracy. This used to be said about Africans, by the way, because they were just too tribal. It used to s- be said about Asians, they were just too Confucian. It used to be said about Latin Americans, they just preferred men on horseback or caudillos.

And so we have to ask ourselves, do we underestimate the passion of people to live outside of tyranny, which is in fact universal? And instead of saying, they just don't have the DNA," to recognize that even in the history of the United States, this was a very difficult, long transition that is in fact still underway.

The Declaration of Independence declared a core value. Governments are instituted among men deriving their just powers from the consent of the governed. Exactly how to put that into practice is a very long road that continues to this day. So when tyranny is dissolved, the work has just begun to translate the moment of revolution into democratic flourishing, and we owe it to others who are trying to make that journey not to sell them short.

And I think what really gives the lie to the Court's reasoning here is how differently it treats different types of political spending in the decision.

So the Court says that you can cap campaign contributions because those can lead to corruption But you can't cap independent expenditures of money that are designed to help a candidate, but that don't actually go directly to a campaign.

Right.

So if you try to donate to, Joe Biden, you can only donate X amount, and they say, "Yeah, that's fine."

But if you decide to independently run some ads for Joe Biden, you can spend as much as you want. This is the creation of the loophole that was eventually- ... blown wide open in Citizens United. And we talked about it a bit there, but it's important to understand how fundamentally ridiculous it is.

'Cause the court is saying that a rich person could buy undue influence with politicians if they were able to donate unlimited amounts to a candidate directly. But if they just run their own campaign ads for that candidate, that's not going to lead to them buying undue influence. There's just no real sugarcoating this.

Yeah, it just doesn't make sense. It's just incoherent. It's a rule that ignores what corruption actually looks like. Yeah. You just can't say that campaign contribution limits are necessary for preventing corruption, but then insist that there can be- ... no caps on independent spending, which provides a simple path to the same exact outcome.

Right.

So a lot of this might raise the question of why unlimited independent expenditures favor rich people. Independent expenditures are, someone spending separately from a campaign. maybe I support Joe Biden and I put out an ad through a PAC probably that just says, "Joe Biden, cool guy.

Donald Trump, not cool." "Thank you." Yeah. that's my ad, and I spend, $50 million on

it. And it is better than about half the ads Democrats- ... tend to run.

There's an implied question here, which is why does this benefit rich people? And the answer is pretty simple. Rich people have access to the resources that they need to put together an effective political me- messaging, system.

Whereas your average person, yes, you could technically band together with thousands and thousands of people.

Right.

Try to piece together a few corporate entities that you could, use to create a PAC and get out a singular message. Yeah, you could do that. But-

Yeah ...

you obviously actually can't.

I, and I think that's- ... that's the bottom line there. You need an enormous amount of collaboration with other people. And The amendments to FECA in 1974 recognized that. Sure. And that's why they capped independent expenditures. Because it is something that rich people can take advantage of much more readily than you or I.

Right.

And there are independent expenditure committees that honestly you may have donated to.

Yeah.

They're like liberal activist groups like Priorities USA that, fundraises pretty well among Democratic activists, but also, Emily's List and Planned Parenthood. They have independent expenditure campaigns.

Yeah. And, and-

Sure ...

you may have kicked them a few dollars. It's not like the left doesn't take advantage of them. But Somebody who gets help from Planned Parenthood just because you kicked in $5 to their independent- ... expenditure campaign isn't gonna be, like, calling you up to, take your temperature on an upcoming vote.

Fucking Kirsten Gillibrand isn't gonna do that. Whereas, if you are a millionaire or a billionaire bankrolling one of these things, then yeah, you just might be getting those phone calls.

to put this in perspective, I think the final tally on Michael Bloomberg's, campaign spending, I'm not sure that I recall exactly what it was, but it was in excess of $500 million.

That would be one of the most successful d- Democratic-oriented PACs, in history were it to be a single PAC rather than Michael Bloomberg's campaign.

Right.

The ability of people like him to snap their fingers and make enormous volumes of money appear to impact the political process is just unparalleled.

there's no amount of collaboration across, the working class that can realistically match it.

Right.

So i- it's important to understand that this arbitrary and superficial distinction between contributions given directly to a campaign and independent spending in support of a campaign is the foundation upon which modern campaign finance law is built.

We're nearing half a century later, and the fundamental absurdity of this distinction is still what underpins- ... the majority of campaign finance law.

Right.

It doesn't take a genius to realize that the function of this ruling is that the most accessible method for the average person to help a campaign by giving the campaign some money is restricted, while the court gives the green light to unfettered spending in areas that are, in practice- Exactly

exclusively available to the rich.

So one thing we haven't really talked about, and it's so big that it, swallows this stuff, but also, ancillary with independent expenditures, the law had originally created, spending caps for campaigns. So the idea would be, like, it doesn't matter, like, how many people are willing to donate to you and whether or not you could raise $50 million, you could only spend $10 million on a presidential primary and you could only spend $20 million on a presidential election.

And there were other limits for, the Senate based on population in the state and things like that. And Again, like with independent expenditures being unlimited, it almost doesn't matter whether or not those campaign limits would exist. But it is amazing to imagine a world where independent expenditures are capped and campaign spending is capped, and it's so different from ours.

But where the campaigns effectively always have spending parity. They can only fundraise to a point, and then it doesn't matter anymore.

Right.

Then all they can care about is, talking to voters and, winning- Yeah ... voter approval. Candidates in office fundraise until they have enough for their next primary and general election, and then they can focus on legislating and- Right

paying attention at their fucking committee meetings and all that. It's so phenomenally different from the world we live in. It's, hard to wrap your head around. Yeah.

It really is imagining a world where a politician has no particular use for a rich person.

Right.

it would- completely flip on its head how politics operates right now.

It's also, because that is so far in the rear view mirror- Yeah ... that rule, it's not particularly relevant to today. At the same time, had it gone the other way, you can envision just a completely different political atmosphere.

Yeah, exactly.

So an important part of this decision is that it ruled that any caps on a candidate's ability to spend on their own campaign, to invest in their own campaign- ... were unconstitutional Paving the way for the modern presidential candidate, which is just some rich asshole. All you need to do to be a candidate in this country is to have a lot of money- Exactly

and bang, your infrastructure is there. Which is why our fucking president is just some guy who was rich, right? He could build on that wealth- ... to, and just turn it into a, political campaign. On the other side, you have these absolute losers, Bloomberg- Steyer ... Howard Schultz, Steyer.

Schultz. I forgot about Schultz. Yes. These fucking losers- Yes ... who are just like, I, I'm sitting on a whole bunch of money." You can turn that into a relatively- Yeah ... viable presidential campaign- Yeah ... in no time because of this fucking decision.

And, it's not nothing. Bloomberg crapped out.

Right.

And, there's, a sort of a savvy DC insider take that Elizabeth Warren crushed him in a debate, and it turns out he's not a very good candidate when he's on stage with a bunch of professionals. And, but he actually, in the states where he and Warren were both on the ballot, he beat her- Yeah

in a lot of them, and did very well. And that's just 'cause he could spend a lot of money on, like- Exactly ... good, sophisticated advertising. And a lot of people- ... didn't know that he wasn't a Democrat, and a lot of people thought that, Obama had endorsed him-

...

because of the way- ... he cut these ads.

I was in fucking Mexico on vacation and I was seeing- yeah ... Bloomberg ads. It was ridiculous.

Yeah. I think that a lot of those candidates, like Schultz, Bloomberg, get dismissed because they lost, right? Because, their campaigns eventually, lost steam. But you have to put in perspective what they were starting with, which was very little in every case.

No infrastructure, no coherent, clear message. No. They took that and turned it into Center stage- Right. Yeah ... Democratic primary campaigns. They didn't- ... have to do what Bernie did and build- ... a year's worth of infrastructure. They skipped over the step that Liz Warren failed to complete, which is getting that initial investment and turning it into infrastructure.

Right. They skipped over that entirely. that's why these losers with absolutely nothing interesting to say about the current state of American politics are nonetheless, driving its debate.

I always say, that really just, there's- lots we can learn from Thomas Jefferson, including how to get credit for things. his tombstone says, "Author, Declaration of Independence," and we've all bought that hook, line- ... and sinker, essentially. He wrote the first draft. He was the chair of the committee, but it was a group process. The first component of that group process was that in Continental Congress, they actually put ads in all the papers in the colonies asking people to write in to Philadelphia with their stories about what the king was doing wrong.

So they crowdsourced that list of grievances, in other words, and that kind of narrative, that diagnosis when they say, "When in the course of human events, it becomes necessary for one people." Then, that moment, that, again, diagnosis of the course of human events, they are bringing intelligence from all over their society into shaping that picture.

So that's the first thing. The second thing is, of course, how the committee operated. yes, Jefferson wrote the first draft. He had existing materials. John Adams had been writing materials. John Adams wrote essentially a first draft of the declaration for Massachusetts in January of 1776. A lot of its structure and argumentation ends up in the final declaration.

So you have multiple people who are contributing to the intellectual case- ... that's being made. And then, of course, in the actual month of June 1776, Jefferson gives his draft to John Adams- ... and Benjamin Franklin in particular as first readers. They make critical edits. The word creator comes in because of them, not because of Jefferson.

A few other kind of- ... critical changes and collectively as a group, they also have included a critique of, the slave trade. They call it a violation of the sacred rights of life and liberty of a distant people in Africa. Then they take that draft and they give it to Congress. Congress cuts it by 25%.

We lose that great condemnation- ... of slavery that was in the draft. Congress adds the phrase divine providence and the phrase supreme judge. In other words, somewhat increasing the religiosity of the text. It is a text that merges the secular vocabulary and a more religious vocabulary. It's a total merger, but that merger reflects the fact that there were many voices contributing, to the shape of the document.

So the final thing they vote on had voices coming in from all different parts of society. I'd like to point out, too, the way in which some of the language Abigail Adams uses in letters to John Adams actually echoes in the Declaration, too. John's own way of writing took a lot from Abigail.

So at any rate, that really is a broad network of people who are contributing, to what we get in the Declaration of Independence.

Yeah. Yeah, and then of course that, it's, it seems, I think the last time you were on the show, we talked about at least at that point in time, you felt like we were living in that period between 1776 and 1787- Yes ... because there were all of these different ideas bubbling and things happening, and it seems wild that there was, like, that 11-year period, of, I don't know, limbo maybe.

Stasis. yeah, realized things were still happening at, at the state level, but I guess time also moved much more slowly back then in some

ways. Time did move more slowly, actually. No, it really did. Yeah. and we can't underestimate actually how much difference that makes for us. So for example, during the Revolutionary War, it took six weeks for a letter to get back and forth across the ocean.

And when you try to write the history of this period, there can be, like, two-year chunks where I've started describing some of these two-year chunks as, a murmuration- ... which is, a formation of birds in the sky, how they sort of swirl for a while- ... before they, form into formation and start flying in the same direction.

And that was just a straightforward consequence of the technology of the era. It was a consequence of how communication worked at that time. Our world is so different. the idea that right now, here we are, we're watching a war in Iran, and every single day we're able to count every casualty precisely.

Every single day, the whole world knows-

...

precisely what the casualties were, where they were, how they were, caused, et cetera, changes utterly the dynamics of politics. I don't think we have got anywhere near full accounting of the consequences of that change of temporality, but it's a deeply real thing.

Yeah.

So it makes sense that five years ago feels like a lifetime ago. In terms of the amount that's happened, it probably is like a lifetime's worth of stuff that has

happened. Yeah, and is it... I know, there's also the kind of the cycles of renovation theory, where every two or three generations there is a, or a series of democratic reforms that happen.

We can think about the, obviously the, Reconstruction Era, the, the Progressive Era, the Civil Rights Era. It seems like we're due or maybe- Yeah ... past due for another cycle. Do you see- Yeah ... see evidence both from what you know of history and from what you're seeing on the ground today that we are close to entering one of those cycles?

Or, how would you think about that?

Yeah, I think we're in it. I think we're in it. I think, okay, so this is where the technology story comes in. I basically think we're in that period of, renovation of our institutions, except that right now it's being done secretly and quietly by private companies- that are fully embedding their technological capacity inside the government. At the same time, we have, we do have a genuinely building grassroots movement for reform of our traditional analog institutions

But that grassroots reform movement needs to embed the technology questions inside itself if it's gonna have a chance of addressing with competing, taking space back from, what private corporations have already achieved by way of transforming our governance structures.

Yeah. can you give an example of, of what that looks like?

Sure. I just was listening to somebody present a paper, which was essentially about how federalism has been completely reorganized because of data and data systems. So the federal government used to rely on states for data.

The federal government no longer relies on states for data. They've put Palantir in the center of government- ... and Palantir has built this incredible interoperable system that can suck up data from everywhere and turn it into a single unified functioning dataverse, essentially. And what y- this means is that because the federal government needed stuff from states, states could make claims on the federal government.

They could change and shape policy. There were choke points and the like. So that really important, element of the federal dynamic, is now gone. And also, relatedly, the federal government hasn't had a lot of enforcement manpower, and it has relied on states to enforce- ... federal policy. And again, same thing, that puts states in the driver's seat to shape that policy and create choke points.

Because of now how data operates, the federal government has much more extensive enforcement power than it did.

So

I think we are all have not noticed, how profoundly our federalist structure has changed in the last 10 years. and it really is, it's like that long kind of time mark.

It's not just the last three or four years. but it's a big deal that we need to- Yeah ... be able to name.

Yeah. No, that's helpful. Thank you for that. And so to bring the renovation back into this, how would you tie the technology piece to what you were saying before about increasing the size of the House and proportional representation?

Or about, redistricting efforts or, you can name whatever the specific reform is, but, how would you connect the technology piece to those things?

So the way we talk about this in my lab at the K- Kennedy School is, you have to think of the institutions of representation as something like a spine, right?

They have the job of moving information around and producing decision-making that results in action, the central nervous system, but the spine in particular. And it, the- A spine as a, as a, the backbone of democracy, representative, institutions, we know they should be flexible, agile, et cetera.

Instead, what we have is sclerotic spine. Some of the vertebrae are fractured, et cetera. So the question like, how do you, grow a healthy spine in that kind of context? There are three vertebrae to think about. First vertebra is citizen connection to our political institutions, to that spot of representation.

The second vertebra is how decision-makers make their decisions, that legislative process. And then the third vertebra is, the question of how that then all gets implemented.

whether that's delivery of services or enforcement of regulations, some of the judicial questions and so forth.

So every single one of those vertebrae can be upgraded, thanks to the assistive power of technology. Sure. Okay. and so we need to do that work for the spine at the same time that we are revisiting some of the analog mechanisms to make sure that the spine is truly connected to the whole people, not just part of the people.

and then, like, how we make sure that's true, sometimes we'll want, we'll wanna use technology to assist ourselves. so that's a kind of long-winded way of saying that I think that, where the democracy renovation movement is going to go ultimately is gonna require a fusion of analog reforms and technological upgrades for our institutions.

Yeah. so you touched, some ways back in our conversation about the need to, as part of rebuilding people's trust in institutions and making them responsive, it's perhaps not just about the institutions themselves, it's also about larger things like economic inequality and those kinds of things.

I know that is sometimes a point of tension within the renovator community. Like, how narrowly do you focus on the specific thing that you're trying to do versus if you do take a step back and try to address the broader issues, you run the risk of making, trying to solve every problem in the world, in which you end up solving none, right?

Yeah. So how do you think about that tension and striking that balance between making specific tangible changes, but also understanding that there are larger issues and factors at play here that go beyond any one reform or set of reforms?

there's gotta be a division of labor, right? So that's why this project is really a kind of collective impact project.

So you need different people biting off different parts of it. The question is there a common agenda?

And for me, that common agenda is the question of whether or not, our organizations and institutions can function where power is shared. So those of us who are working in a more narrow way on how do we run elections, how does Congress operate, those are fundamentally conversations about is power shared?

Can we empower people by making sure they have access to power, and is power shared? Can we protect people from arbitrary power? Those are the two kinds of questions that we have to ask in designing mechanisms. At the same time though, then those governance mechanisms are gonna be used for policymaking across all domains, economy, health, education, you name it.

If you're gonna invest all this time in building democratic governance, you sure wanna be sure that the policy you're making reinforces democracy

and doesn't undermine it. So that's where, it's where we need policymakers to learn how to do democracy-supportive public policy, to know the difference between an economic policy choice that will undermine democracy and one that will support it. you can sum that particular area up by saying what we all know, which is that a middle-class economy, is a much stronger foundation for preserving democracy over time.

so if you care about freedom, and therefore democracy, then you need an economic policy that's gonna steer in the direction of reinforcing the middle class, not eroding it.

this is a question actually that goes to our discussion about the health of civil society.

i- in your book on democracy a few years ago, and again here this after- this morning, you use the term the spirit of constitutionalism. What exactly do you mean by that?

▶ CLIP 2 START — Spirit of Constitutionalism & the Decline of Civil Society

Yeah. by the spirit of constitutionalism, I mean that it means that it's something more than what's on paper That somehow it is an animating part of your s- your existence, your citizenship, your relationship to your government, your relationship to your rights.

That somehow there's something more than just that is on paper. And I'm probably, David, influenced by this by having watched countries that are young in this process, where it's on paper, but it hasn't yet become a part of the spirit. And part of that is that if the constitutional, institutions are not allowed to work, it will never be the case.

Part of the reason I think the US has the spirit of constitutionalism is we've watched it work over a very long period of time, little by little, step by step, so that you do have, what happens with the civil rights movement. You do have, gay people being able to marry. we see that this constitution is more than something on paper.

I do wanna say just one thing about the civil society point too. One of the reasons that I talk the way that I do about the civil rights movement is exactly your example from Washington, that people somehow, particularly when you're young, I think this is all about protest. If I just protest it, then I'm changing things.

you may be setting, helping to set conditions for change, but actually protest in and of itself will rarely change anything. It has to somehow translate into institutional or legal or other change, and so your example is exactly the one. The other thing de Tocqueville said was, he talked about these, these associations, these voluntary associations just to do good.

And when I'm, feeling, despondent at all about American democracy, that's where I go, is to think about civil society not just as changing the political process, but civil society as the place where ex- Americans express their concern for and desire to help each other, where no individual will be l- will be left behind.

We would think of it today as Rotary Clubs and Boys & Girls Clubs and American Red Cross or whatever. And, I think that and the fact that we are not just Washington DC, but we are decentralized, so if you go to any community- Yeah ... you may see that spirit. it's a, there's an old, well-known fact in political science that people hate Congress they rarely hate their congressperson.

And I wonder sometimes if the we don't trust each other is an abstraction about trusting each other, because do I trust my neighbor? Do I trust the person that I sit next to in synagogue or in church? Do I trust the person that I work with? I've always thought it would be interesting to do that survey in a slightly different way, because I think we're picking up some of the abstraction.

If you asked, in the 1960s in Birmingham, 19- late 1950s in Birmingham, what about the rights of Black people, among the white population, you probably would have gotten, more segregationist views. I can tell you that it was breaking down among individuals. My father, was very well respected.

He was a Presbyterian minister, high school guidance counselor, and the head of guid- guidance counseling in Birmingham was a man named Clay Sheffield, who was white And Clay Sheffield really loved my father. So one, one day I learned that there was this thing called the circus, and I wanted to go. But it was segregated, you couldn't go.

So my father talked to Clay Sheffield and he said, my daughter..." I'm an only child, so you know, I was a little spoiled. "Can my daughter go to the circus?" So Mr. Sheffield got us into the circus. I realized about 10 minutes in that I didn't particularly like animals. And, so I was ready to leave.

My father said, "We're staying." Because he had called in chips. But, an- another little story about this. So my mother got a very bad case of bronchitis, and, again, Mr. Sheffield recommended a doctor, a white doctor. And, we went to see Dr. Carmichael, and, Blacks had to sit in a waiting room that was above the pharma- pharmacy that was all peeling and pretty awful, and there was a very nice waiting room up front for white patients.

And Dr. Carmichael said to my father, John, I'm gonna have to see Angelina weekly for a while, but why don't you come after 5:00?"

Right?

And so after 5:00, we... So I just-- sometimes when we talk about each other, knowing somebody actually helps. It's one reason that the work that we're trying to do here at Stanford, I see Josh Ober out there, where you actually encounter people who think differently.

You count- encounter people who are different because it tends to break down that abstraction about the group or the, or the ethnic group or the like.

But the very fact that we have to target and put together organized institutional- Yeah ... effort to have some kind of common conversation- Yeah

where we think that once upon a time, that sort of thing happened more or less organically. I agree. The very fact that it's now become a named problem that we have to address- ... institutionally, I think is very unsettling. And, and the kind of community spirit amongst people who actually knew each other and so on that you're describing, I think that's quite laudable.

But again, the polling data is so disagreeably consistent about this- Yeah ... that we have lost confidence in these communitarian or, or collective institutions- Yeah ... over the last two generations or so. You look at the work of Robert Putnam, for example. Yeah. Bowling Alone. Yeah. he's- Love him

the great, the voice about this. and there's, as he describes it in this book, The Upswing, there is a steady increase in what we might call collective or communitarian practices and institutional robustness and so on from roughly 1900 through some date in the 1960s, when then communitarian practices, beliefs, habits begin to erode.

Yeah. And we get to where we are today, where we just have less of that. Bowling Alone is the metaphor- Yeah ... for it all. one homely example that he gives, for those of you who read the book will be familiar with it- among many. he traces data across all kinds of domains: electoral behavior, movie titles, song titles, preferences for different forms of entertainment, so on and so on.

And one of them is naming practices, and it's one of the lines that he traces. Value, yes. And from roughly late 19th century through the 1960s, by and large, it's a big generalization, people named their children o- after family members. And beginning in the 1960s, and continuing down to this moment, people started naming their children after something else, either other people or things that weren't even animate.

So for example, my youngest grandson, born last year, one year old, is named River. Okay. So To- Toc- Tocqueville saw this coming- Yeah ... as he saw so many things coming. Yeah. He said, "In democratic societies, the warp and woof of time is every moment erased- Yeah ... and the face of generations, the trace of generations effaced."

So there's something depersonalizing about the- Yeah,

there

is ... society we live in.

Yeah. And, but David, I, look, I'm not a Neanderthal about social media. I use it, But there is something that is accelerating it by the way that we interact, which is, I can't get anybody to actually give me a phone call anymore.

I get a long text, and finally I say, "Can we just talk on the phone? it's, it would be a lot easier." But I do think this is one of the issues that we have. I remember when, Facebook first came out, and, I thought to myself, friend? I am going to friend somebody that I've never seen?"

friend is a

verb?

Friend is a... or people that I'm gonna declare friends but I don't actually know them or know anything about them. and so I do think that the depersonalization has been going on, for a while, but it's probably been accelerated over, recent years by the way we communicate.

Yeah. And even before that, by s- certain structural

⏹ CLIP 2 END

developments like suburbanization. yes. People are more spread out. They just have less common space that they habitually inhabit and interact with other people.

That's going to be it for today.

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The additional sections of the show included clips from;

Siena and Toast

We the People

Constitutional Chats

The Takeout

On the Media

What A Day

Stay Tuned with Preet

The Bulwark

5-4

Democracy Works

and Stanford Legal

Further details are in the show notes.

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