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tv   James Madison and the Constitution  CSPAN  November 5, 2014 6:25pm-8:01pm EST

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interaction and dynamic and nuances and the reality, for instance, that post-traumatic stress disorder can climb up and can be resolved if you continue to try various interventions. >> i think american history tv on c-span is one of the best programs available. i wish we could do it more than once a week. >> and continue to let us know what you think about the programs you're watching. call us 202-626-3400, e-mail us at comments@c-span.org or tweet us @cspan. like us on facebook, follow us on twitter. the 2015 c-span student cam
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video competition is under way. open to all middle and high school students to create a five to seven-minute documentary on the theme "the three branches and you county "showing how a policy by the legislative executive or judicial branch of the government has affected you or your community. there's 2 hu00 cash prizes totag $100,000. go to studentcam.org. at the white house today president obama held a news conference to answer questions about the republican takeover of the u.s. senate and republican gains in the house of representatives. here's a bit of what the president had to say. >> obviously republicans had a good night, and they deserve credit for running good campaigns. beyond that i'll leave it to all of you and the professional pundits to pick through yesterday's results. what stands out to me, though, is that the american people sent a message, one that they've sent
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for several elections now. they expect the people they elect to work as hard as they do. they expect us to focus on their ambitions and not ours. they want us to get the job done. all of us in both parties have a responsibility to address that sentiment. still, as president, i have a unique responsibility to try and make this town work. so to everyone who voted, i want you to know that i hear you. to the two-thirds of voters who chose not to participate in the process yesterday, i hear you, too. >> and house speaker john boehner released a statement about his party's increased majority in the congress. he said in part, quote, we're humbled by the responsibility the american people have placed with us. it's time for the government to start getting results and implementing solutions to the challenges facing our country, starting with our still-struggling economy.
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>> here are just a fuf tew of t comments we recently received. >> calling to comment on a debate i saw between bruce fein and a man named john hu regarding the declaration of war and the war powers act. it was quite interesting to watch the legal debate and it also demonstrated some of the ineptitude of the neo con proposition that in the beginning of any war the president is the ultimate hearsay of the country's ability to go to war. >> i would like to commend c-span2 for airing the information from the writers on
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grief and the military. it was excellent information that gave depth level interaction and dynamic and nuances and the reality, for instance, that post-traumatic stress disorder can climb up and can be resolved if you continue to try various interventions. >> i think american history tv on c-span is one of the best programs available. i wish we could do it more than once a week. >> continue to let us know what you think about the programs you're watching. call us at 202-626-3400. e-mail us at comments@c-span.org or send us a tweet@cspan #
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comments. like us on facebook, follow us on twitter. next on american history tv, stanford university history professor jake rakove talks about james madison's role in the creation of the constitution. he also explors madison's arguments in the federalist papers co-published with alexander hamilton and john jay. st. john's college in annapolis hosted this event as part of their great issues forum. this is 90 minutes. i am chris nelson, the president of st. john's college, and it's my great pleasure to welcome you to the college for this great issues forum sponsored by the friends of st. john's. we have a rich tradition at the college of encouraging lifelong learning and inviting our friends, neighbors and greater community to join us for programs such as today's
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lecture. we gather as fellow learners to seek a greater understanding of enduring and challenging questions. for the past two decades, the great issues forum has brought to campus noted leaders and thinkers. elliott richardson, the former attorney general, known to many as a hero of watergate. political commentator and presidential adviser david gergen. retired associate justice of the u.s. supreme court sandra day o'connor. tennis icon and humanitarian arthur ashe. thomas keane, of new jersey. so jack, you've got a lot to live up to here. today i have the privilege of introducing our noted speaker, jack rakove, an exceptional student, pulitzer prize winning author. he'll share his insights on james madison's ticklish experiment at constitution making and no doubt will prompt us to question and reflect on
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the concept of polity, something we cherish at st. john's college. he's the co-professor of history and american studies and professor of political science and law at stanford university where he's taught since 1980. he's also taught at colgate university from 1975 to '80 and has been visiting professor at nyu school of law. he's a visionary, scholar and author. his book "original meanings: politics and ideas and the making of the constitution county "won the pulitzer prize in history in 1996. he continues to research, write and speak prolivically. his principal areas of research include the constitution the political practice and theory of james madison and the role of historical knowledge in constitutional litigation. he's the author of six books most recently revolutionaries a
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new history of the invention of america, which was the finalist for the george washington prize. his other publications include "james madison and the creation of the american republic" and "declaring rights: a brief history with documents" among others. he's a member of the mesh academy of arts and sciences, the american philosophical society and a past president of the society for the history of the early american republic. he earned his b.a. from haverford college, his ph.d. from harvard university. now, following his remarks, at approximately 3:00, i'll come back up to welcome questions, which dr. rakove will then take from audience. as you're thinking about those, you'll also want to be thinking about making your way to the microphones as this lecture and the questions are being filmed for c-span. please join me in welcoming jack rakove.
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>> well, it's great pleasure for me to be able to speak in annapolis. i pent the night sleeping around the corner from the site of what used to be george mann's tavern, which means a lot to me because that's where madison, alexander hamilton, randolph, john dickinson and eight other guys met in mid-september, more or less at this time in 1786 and mostly because they were really going to proceed with their business, they hit upon the idea of calling for a second convention to meet in philadelphia in may 1787. so sleeping around the corner is a bit of a treat for me. it's also nice to be here at st. john's. because i have a university of chicago connection and there's a
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major university of chicago link to the history of st. john's. i was actually born at the ufc and i learned a lot about the curriculum half a century ago when i was applying to college, st. john's was a school i thought of although not the one i chose to pursue. it is also in a sense nifty because the main text at the seminarians who were here this morning discussing that i want to spend a little time talking about and referring to this afternoon was, of course, the federalist, the 85 sas that alexander hamilton and jay johnson wrote to support the ratification of the constitution. so that work is part of the, you know, the whole great books curriculum here at st. john's. i've been thinking about the federalists for a long time. my first paper at grad school was about it.
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it will come out we hope in a few years. first we've got to get the contract. and so this is -- these are subjects that are important to me individually but have a connection to both the institution and the city where we're meeting today. let me start by saying something about -- so i'm actually going the start by saying something about the title. james madison's ticklish experiment for those of you who weren't here this morning is essentially the problem of constitution making or alternatively, the role of the people in constitutional revision. and so what i want to spend this lecture discussing is the nature of constitution making as a process in a mad isisonian ligh. i'll refer to a couple of federalists that you should have discussed this morning. i bet you the federalists in audience, what one would usually expect is if you've had any acquaintance with it at all, the
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essays you would know or remember maybe from ap u.s. history or let's say introductory class on american government in college, you probably know federalist ten, which is -- let's get the -- this is actually the original version of federalist ten as it appeared in the new york independent of november 22nd 1787. it was madison's first contribution. if you go to the bottom of the second column from the left, that's where federalist ten begins to appear. we're not going to bother to decipher the text. like a lot of of the slights they'll be whole he indecipherable. that's the federalist which, for exactly the haas century going back to 1913 has dominated american discussion of the origins of the constitution. where madison makes his famous arguments about the benefits of having a multiplicity of
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factions, if we want to preserve liberty, we can't do it by ascribing the same set of motives and purposes and characteristics to every member of society, we have to assume that americans, like other people, are going to come in all shapes and sizes with a variety of interests and commitments and attachments. and what we really want to do is figure out a way in which we can make republican government secure from the mischiefs of faction. by taking advantage of that diversity. and the basic argument is it would be easier to do that in a large republic like the prospective united states would be than in a small republic as maryland was, for example, in 1787. so there would be a real benefit to nationalism. but you thing about federalist ten, it's not really an analysis of the oogs. it makes some suggestions that maybe we can get a better class of lawmakers in a large republic, in large districts, maybe the local demagogues would somehow cancel each other out.
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it would be possible for men and madison was thinking of men, we can say persons of a more patriotic, disposition to get elected but it is not a constitutional text. it doesn't discuss the discussion. in a sense it's a prologue. st. john's we can say a pronomogon of the coalition itself. to talk about madison as a constitutionalist, how he thought about constitution making, the process of adopting a constitution, however important federalist ten is, we have to move on to other texts. this morning, although i gather there was a lot of that going back and forth from past to present, maybe a lot of times the present in the sessions, but i think there are a couple other places in the federalists that someone has to look to get a better sebs of how madison thought about the process of constitution making. the place where i'd want to start is actually with another
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federalist which is not federalist 37, which is not read nearly as often or as closely as federalist ten has been. it's a curious fact about this essay that it forms -- i didn't know this in fact until a few years ago, it forms in effect a second introduction to the federalists, in the sense that when the federalist was published in hard copy as a book in 1788 and the famous mclean edition, federalist one was obviously the first federalist for volume one, federalist 37 was the introductory essay for volume two. in a sense that's right because in federalist 37 madison shifts the discussion of constitutionalism, i should say the discussion of the federalist was putting forth from the general advantages of union, which had been alexander hamilton's big subject in the spreeding essays to the specific dimensions of the constitution itself. and so madison wants to do here is to kind of refocus the
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attention of his audience, originally obviously readers of the time but those of us who still suddeny it can find this constructive as well. madison wants to restate the problem. wants to get his audience, whether his own contemporaries reading the federalist for illumination to think more seriously about the business of constitution making. so what he does here is actually quite interesting. let me say a few words about it. it's going to relate to things i'm going to talk about as we move on. so madison says, introductory remark, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. in other words, what he wants citizens at the time, those ourself reading it later to think about, he doesn't want us judging the constitution on the basis of any set or fixed axioms which we might be committed as a
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matter of principal. if you want to judge the constitution fairly and accurately or to use the phrase that ian hamilton would have liked, with moderation, being a moderate in the 18th century didn't mean being just at the midpoint of some debate. so you're open to both sides. it really means adopting a reasonable attitude. thinking openly and critically and objectively and fairly. doesn't mean being at the midpoint. you can reach conclusions, be a moderate and reach the wrong conclusions on one side or the other, but you have to reason with moderation. so for madison reasoning with moderation in this context means if you want to judge the constitution fairly and accurately, you have to take into account the real difficulties that its framers would have faced. he identifies four. so he starts with, you know, kind of obvious historical one. there's a lack of precedence. there was no real experience. there was experience at the state level but no experience
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for creating a national republic on the dimensions through a written constitution under dimension or the powers that the framers were thinking. there were negative examples. madison could identify a lot of those. but the number of successful cases not few and far between it's essentially a null set. there's nothing there really you can look at. you have to take into account the lack of precedence. these guys weren't making it up, but they were on their own. they were innovative, point number one. point number two, combining the requisite stability and energy in government with the attention to liberty and to the republican forum. the very interprovides of constitution making in the american public involved reconciling two main goals which are not entirely compatible. there's a desire for security and efficiency, a zur for strong
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effective government, the desire to have government that's capable of meeting the needs of a modern nation state, which is going to have to compete in the world of nations with powers like france and britain and spain, then as always in a state of decline. and you know, for the americans to compete, we needed to have an effective government, that's the big lesson to be drawn from the wartime experience. certainly the people around george washington felt very acutely. yet at the same time americans were deeply committed to principles of liberty. so this is a great lesson to have in mind for our own time. think of all the debates withy have about out of balance liberty and security. we don't want another 9/11 for lots of obvious reasons, but beer not sure how far we want nsa to go, for example, in terms of how much information they're going to collect on us and what use they can make. so basically the very use of constitution making involves reconciling principles that are not themselves entirely compatible.
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that pull us in different directions. we're committed to both and we may come down on different sides. you remember the aclu, as i have been, although i wax and wane, i was once employed by them back in 1969. i'm not crazy about having snowden as one of the aclu's current, you know, you know, mascots or whatever phrase is appropriate. i have somewhat mixed feelings about that. so we're committed to liberty, we're committed to security. and the framers have to work out some unsteady balance between the two of them. the third point is actually the most important. it's the most difficult. i won't tire the audience. making a proper line of petition between levels of branches of governance. those who read the seminar materials for this morning remember the he goes off on a long reflection about the very difficult of dividing powers and responsibilities both among
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levels of government, nation and state and among branchs of government. and he does this in a really interesting way, xars it to moral philosophy and study of things we find in nature. the divisions of nature are perfectly accurate but we lack the means to observe them fully. what happens when we talk about human institutions. i wish i had more time to explain it. just have to take my word for it. but madison reflects on the very uncertainty which is inherent in political discussion. then he draws some -- very concise, draws in some lessons from lot, particularly lot's writings on language, why language is so immutable that we can't really -- language itself is a problem we have to deal with. so there's a third problem there. then the fourth problem he mentions is the interfering pretensions of different interests. free states, slave state, large states and small states on the
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basis of where you live that's going to affect how you think about political issues. you have precommitments on the basis of who you are or to take this in terms of modern and social philosophy, there's no john walsy and veil of ignorance behind which you can step. so you won't know what your future condition will be when you try to think about what a just order will be. we all know who we are, what our states are and we'll act on that basis. for all these reasons constitution making is necessarily an imperfect process. and it's a -- when you think about it, a very powerful essay. there's nothing like it in the 30-so vol uumes we have. the inherent difficulties of constitution making. so that's my first point here. the second has to do with the passage from federalist 49 and 50. again i'll summarize this
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quickly both for those who were here this morning and those who are newcomers this afternoon. so these two essays, this is a long passage, which i better read. kind of fine print as you guys are seeing it. it's a very curious part of the federalist where madison does something kind of funny. its in the process of discussing the separation of power, how what the framers have done is going to vary from what many americans thought mont es cue has said, how they ought to act, in terms of separating lgsive, executive and judicial power. he has two essays, how should we think about the sprigs of powers. then he has this curious diversion where he talks about jefferson's proposed division of the constitution. jefferson's idea was that if you have big constitutional
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controversies between the departments, the best way to solve them would be to call a convention representing the people as the sovereign source of political authority and those at the convention would come together and would work out the issue and maybe they'd reformulate the role of institutions. it's to say the people themselves, to use the phrase the framers like, the people themselves would become the constitutional mediators. nobody was talking about this. nobody was thinking about this. nobody other than jefferson had proposed it, nobody other than madison was really concerned about it. so kind of curious question here, why would madison go out of his way to discuss it? and what important did he attach to it? i think the general is he went out of his way to discuss it because he wanted to say we can't rely on the people to perform the roles that jefferson wants. with need to have some separation of powers to make
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this work. we can't ask the people to be actively involved in the process of constitutional revision. as important as the people are and as much as the outcomes of elections matter, we can't expect the people to play a mediating role in proposed. and in the course of doing this, madison writes what i think is a fascinating passage. i like it because it provides me with my title. let me read this out loud. notwithstanding the success which attended the revisions of our established forms of government, meaning the governments of americans created in 1776 and 1777, in which does so much honor to the virtue and intelligence of the people of america. it must be confessed that the experiments are of too ticklish of nature to be unnecessarily multiplied. then he gives us a set of reasons for appreciating this thought. he says, we are to recollect all the existing constitutions were formed in the midst of a danger which were oppressed passions
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most unfriendly to order and conquer. enthusiastic of the people and patriotic leaders which stifled opinions on great national questions. the universal ardor for new and opposite forms, meaning opposite for monarchy. produced by universal resentment and indignation against the ancient government. whilst no spirit of party connected to the changes to be made or abuses to be reformed could mingle with levin in the operation. so, very powerful reflection on how americans had thought about their right to alter -- their lacking right to alter and abolish governments a decade earlier. back then as madison was saying, we had a lot of success in creating new constitutions. of which we should be -- we're justifiably proud but we should not be too arrogant or too confident about the achievement we made then. why? because we also have to appreciate that a number of exceptional circumstances were
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operating, that were conducive to a positive result. you know, it was the midst of a revolution. we're all patriots. we were reacting against monarchy. we had great confidence in our leaders and so on. those conditions fit the atmosphere of the revolution a decade earlier. you cannot assume they would be the ordinary stuff of american politics hereafter. if you actually tried to have a procedure of constitutional revision where some issue was deeply contested, we may not have the same set of circumstances prevailing in the future. so, it might be better, it might make more sense operationally to rely on the separation of powers. so, these are, i think, two wonderful ways to kind of think about the essays, some you have guys read and discussed this morning. as, you know, introduction to, you know, the larger problem of thinking about how well our constitution is operating today. two deep reflections. one, think about the inherent problems, inherent, in any process of constitutional
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decision-making. you know, before we reach strong judgments you have to think about the issues the decision-makers have to deal with and they're quite serious. and then, two, think about the dangers of invoking -- you know, invoking popular authority, whether might not be destructive but the overall authority of the regime in that way. so, that's a long introduction. what i want to do now is since the day is presenting the vices of american politics in madison, i'm going to throw out a few suggestions on my own. none of you has to take any of them very seriously, about what i think might be wrong with contemporary politics, where i might start as the law-giver, if i had that power. then i want to come back and talk more in detail about madison as a constitution-maker. chris, by the way, when you want to give me the hook, i don't have a watch up here, let me know. i often depend on the kindness of strangers in this respect.
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so, if i were identifying -- you know, i understand a whole array of topics came up in this morning's seminars. if i were to identify three that really drive me nuts, that i would want to change, let's say in the period of two weeks, if i had the authority, here are my favorites. one is i would absolutely get rid of the filibuster. which i think is unconstitutional. [ applause ] and -- well, i'm not running for office. it's just -- but let me make a quick argument about this. so, the filibuster might be acceptable, might -- or let's say some more open-ended rules of debate might be accepted in the senate if you really thought it was about rules of deliberation. senate does not have to have the same rules of the house. indeed, it should have somewhat different rules from the house. you can make a fairly good argument what's happened in the
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modern senate with the 60 vote requirement is that rule of deliberation and the rule of decision have converged. what's not only a rule of deliberation that the senators should be able to debate as long as they can, it's no longer about debate. it's if you can't get closure on a motion, you can't really bring it -- you can't bring it to a vote. that's a rule of decision. it's no longer about deliberation. it's not being done to promote deliberation. it's being done to prevent decision until you reach a certain margin. the constitution is specific about when we need super majorities. you need two-thirds members in both houses. make sure i get this right. for constitutional amendments. two-thirds in the senate for the ratification of treaties. two-thirds in the senate for conviction of a president or somebody else on impeachment. three-quarters of the states to approve constitutional amendments. it's a very well-known rule of legal interpretation when it
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says the expression of one is the exclusion of others. when it is explicit about when super majorities are required, it's excluding other cases. on the face of it, notwithstanding the fact that each house has independent authority to set its own rules, this is deeply unconstitutional about that requirement. of course, if you worry about going in the minority, there's advantages to saying, hold on in practice. we deserve majority government. so if i had to identify -- then you pay the price at elections. if you get a majority, you have the right to rule. then you deal with the consequences. if the consequence is good, people re-elect you. if not, you will be turned down and some other party will come to power. that's a serious problem. i think we have the right to a democratic government. the senate is bad enough as it
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is because of the equal state vote, which madison was against. makes no sense at all. there's no reason why wyoming should have two senators. i said this to a republican senator from wyoming a couple months ago. i felt good about that. he was a little surprised. but i felt good. in a sense, what's happened is the equal state vote rule, which madison -- that's as far as we ought to go to protect minority interest is the basis for creating additional protection for minorities. it has been squared in the process. that's one thing i would do away with. i would have a national popular vote for the president in which one vote, wherever it was cast, would have the same vote as a vote in any other state. the states would have no actual role in the conduct of presidential elections. a vote would be a vote, would be a vote. for a long time i think particularly since the 2000 election, i thought about this. it's a one person, one vote rule, that a vote should be the same wherever it is cast.
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last couple years i thought there might be another reason, perhaps a better reason for making this change. it seems if you look at the current american presidency, let's go back to george w. bush -- let's go back to bill clinton and then george w. bush and then obama. all three presidents for different reasons have come to office with the kind of cloud of illegitimacy over them. i think clinton because republicans believed they were going to control the presidency forever after. and because ross perot ran and republicans felt he messed up the election, george bush senior should have won re-election. clinton had a cloud to begin with. bush, of course, had the problem of florida and bush v. gore which was problematic. obama i think the problem may have to do with the kind of persistence of racism in american political culture and other factors. in any case, it seems to be the last few presidents have had
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serious issues maintaining the legitimacy of their elections. and i think the very way in which our elections are conducted with red states, blue states and battleground states has complicated that. it taught us to think about the election of a president as an exercise in a political map where the big majority state goes to one side or the other and there is between an eight or dozen or 15 battleground states contested. the idea we contest on a state by state basis is -- it might be the presidency would be a legitimate institution with less controversy if it was elected by a national popular. i would get rid of life tenure for supreme court justices. maybe not for federal. but we know -- one thing we know about the supreme court is the politics of appointment have been highly politicized,
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probably going back to 1969, probably for the last 49 years. let's go back to when fortis was knocked out and warren burger became chief justice. a curious situation we have is we know how deeply partisan the appointment process has been. not in every case. we know strong political motives operate. we see cases in which the votes are predictable in terms of the party affiliations, loyalties, commitments of the justices. it's strange they should be able to time their appointments to affect -- the conditions under which they will be replaced. justices have an incentive to stay in office to make sure they will be replaced in a sympathetic way. not clear to me that's the best way to do it. having some system of rotation, give them 18 years, 20, that's a fair amount to do your jurisprudence.
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then mandate retirement so the system can't be manipulated the same way might not be a bad thing. so those are three vices i just turned out just to be a little provocative and meet the assignment, show you i'm not just an 18th century guy. i do think about the present. let's go back to my alter ego, james madison. these are my two favorite portraits. one done by charles wilson field who did a lot of work around here. this is madison in the early 1790s on the left when he is 40 years old, give or take a year. to me, i like it because it shows madison did not always dress in black as people said during his presidency. he had a certain eye for color. got a bit of pumpkin there or whatever. and then the portrait was done in 1829.
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done in monday -- montpelier. i want to urge everybody to visit a great historic site. we trimmed the property back to what it looked like in madison's time. it's a great -- it's a fabulous view of the blue ridge from the front porch. you can do montpelier and monticello in one day and feel the better for it. this is done in 1829. i love it for the deep seriousness. sometimes i want to say the brooding intelligence. i don't like to use the term brooding. he was brooding about where the union was going. i love the residual power that we see in madison in this portrait. madison the animated young man, the member in the early federal congress. madison the aging statesman reflecting deeply on what he had done. it's a place to start. let me say something about madison's mind, subject which
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interests me a lot. i have quotations from two of my graduate school professors. one who is a political theorist at harvard. he said this and if you are a historian it's a great quote to use. he had a historian's mind, which was a great intellectual advantage. i happen to agree by 120%. when you meet people who are historically ill informed, you wonder where did they come from. why don't they know? i like to say, everybody knows that. i'm told, no, that's not the case. i had a historian's mind, which was a great intellectual advantage. it enabled him to penetrate to the logic of collective action, even when on the surface there seemed to be nothing but random irrationality in partisan wrangling. he looked below the noise. to try to identify the source of
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the noise. by reflecting upon previous occasions and experiences, he was always able to see a pattern. i think that's a perfectly apt way to think about madison. he was trying to think about the underlying patterns of american politics, not just to be upset about the dicy -- diccidense. maryland figures prominently because of its debates over paper money. so madison had a historian's intelligence. this is history. not just random fact checking. history is what we do -- we try to explain why things happen, what are the causes of events. that's one great passage. second comes from my own mentor, bernard bayland. he says payne was an ignoramus.
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payne was an ignoramus both in ideas and in the practice of politics, next to adams, jefferson, madison or james wilson. and then the sentence i really love. because it's so apt of the challenge of constitution making. he had none of the hard, quizzical, grainy quality of mind that led madison to probe the deepest questions of republicanism not as an ideal contrast to corruption, that was a traditional motif, but as an operating, practical every day process of government, capable of containing within it the explosive forces of society. that's a great contrast that he sets up. there was a long history of thinking about republicanism in opposition to monarchy. in some practices in italy of what republican government might mean. republicanism was seen as a contrast to the existing regime.
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that's not all madison thinks about. monarchy is over. we have to think about republicanism as a serious process. those are a couple points of departure, two portraits and two sketches. i want to focus on the document that i know that best illustrates what madison's mind and madison's way of thinking was about. this is a document that historians know as the vices. the vices of the political system of the united states. it was written mostly or comprehensively in april 1787. i will say more about this in a few minutes. madison at that point was in new york city. congress could rarely muster a quorum. he had a lot of time free. to start planning his agenda for
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philadelphia. this is a document which -- it took me a long time to look at it. this is done from the microfilm. i want to go back and look at the hard copy at the library of congress which i thought i was going to do on thursday. so basically, madison has a set of observations. titles are on the left-hand side. you scroll through and without belaboring, you see it's what i think of as a working paper madison has written for himself. madison did not like to write for public audiences. writing the federalist was an accident. had he gone back to virginia, he never would have written the federalist. just the fact he stays in new york and is available that leads hamilton to recruit him. you see madison, there's corrections. madison leaves places for further expansion. item seven, we will talk about in a minute, and then item nine which starts -- item 11 which starts here.
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i have to point this out. you see on the right-hand side you see a big gap. right between the top seven or eight lines and the bottom. i have a young colleague at boston college of law school who is a legal historian. she is finishing a book, which mostly about how madison compiled his notes of debate. she has an interesting theory which i find provocative but don't accept. madison wrote the second part beginning midway on the page in the summer of 1787 when he was at the convention. this is important to us because it's from this part on that madison develops the argument that we know from federalist ten, the whole argument about faction. this is its first draft here. the question of did madison work this out before the convention or during the convention, if you are a working historian, it's an interesting question. say more about this as we go on. in any case, this is kind of an example of madison thinking, 12
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items, the last of them impotence in the laws of the states has no text. i asked my students to write a madisonian paragraph as to what that might have been. i want to talk about two of the items here. they really illustrate what i think was the kind of critical facets of madison's character as a constitution maker. i want to think about what i said this morning. constitution making is a difficult enterprise for all the reasons madison laid out. what makes madison so interesting to me is that i think he was the one member -- not the only member but the one member of the convention who thought most completely and comprehensively about what the whole process would entail. from framing an agenda of deliberation to figuring out the best way in which a constitution could be ratified and everything that would take place in between. to call him the greatest law giver is a title i feel fairly good about. i want to call attention to a couple of the things he does
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here which indicates the depth of his thinking. this is the paragraph that madison -- the opening of the paragraph he calls want of sanctions to the laws of coercion in the government of confederacy. basic thing you have to know here is that under the articles of confederation, the original federal constitution, before 1787 to '89, for national government to work, congress required compliance of the states. congress would issue recommendations, requisitions, resolutions. the states were expected to implement them. they weren't expected to judge and rejudge them to say we like this one or not that one. it's not state sovereignty. they were thought to be obliged to carry things out but in the way most appropriate to their situation. this is what washington and all the military guys around him came to really dislike.
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it's a federalism of voluntary compliance. there's no coercive mechanism behind it. congress can't act legally binding on citizens in an ordinary way. no authority to coerce the states. madison takes this up in what is i think -- i could go back to -- flip back if i can do this. nope. wrong way. this is item seven, left-hand up to the upper right-hand side. so this is -- it's a single paragraph of analysis addressed to this question. this is the opening part. it says a sanction is essential to the idea of law as coercion is to that of government. the federal system being desperate for both wants the great vital principals of a political constitution. under the form of such a
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constitution, it's nothing more than an alliance, but between so many independent and sovereign states. then madison asks the question, when madison asks a question, it's a question. it's analytical. from what cause could so fatal an omission have happened in the articles of confederation? from this point on in the space of six sentences, madison does the most concise and brilliant political analysis i think i have ever seen by anyone in a compressed space. he makes five points. if you look at how he is reasoning. you see the way in which his mind worked and what made him such a leading constitution maker. he starts with two observations. well, what did the framers get wrong? why did they not anticipate that this would be a problem? and the short answer is that when they wrote the constitutions back in 1776, the earlier passage we looked at from federalist 49, back then we were all republicans, lower case r, and we all believed in
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government by the virtue as we all -- we believed in the patriotic impulses that were moving up. we deferred to our leaders. we reunited. we rejected monarchy. and so on. we didn't think that it would be necessary to have some enforcement mechanism behind it. madison was reasoning like a historian. he is saying, the reason they got it wrong wasn't just some random decision they made. the real fact was that this actually fit the underlying assumptions of the period. a second historical lesson follows. what lessons have we learned since? even during wartime, the system didn't work. when we had an external threat that should have motivated us, the system didn't work very well. in peace time, it's working less well. that's not a surprise. then he asks a question, one of madison's questions, it's really a question.
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he says, how could it be otherwise? and at this point he shifts gears intellectually. i have fun with my students getting to ask the question, tell me in what way or discipline -- i know disciplines aren't popular at st. john's. at stanford they count for a lot. in what discipline is he reasoning now? madison comes up with three answers. states have different interests. so they are not equally committed to any given outcome. states are differently situated. they have different characteristics. you can't expect the same compliance with every state. second, within every state you will find what he calls popularity to use our vernacular say running against washington, the city, not the president. running against washington. within every state you find politicians who will want to criticize compliance with what the national government wants for their own powers and motives. third, what's best he says even when we have -- even when we have a latent disposition to agree on measures, we have
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doubts about each other's compliance. even when we may actually agree in principal, if we aren't certain if virginia will comply or virginia is not sure maryland will comply, they actually probably maryland and virginia, remember where i am. if you are not sure what your neighbor is going to do, why should you go first? if you think about this, and you have any background in economics or political science, you realize when madison is doing in engaging in game theoretic reasoning. game theoretic reasoning. meaning exactly what the economists and political scientists do now. he is trying -- assuming that federalism -- federalism of voluntary compliance is a game. it's cooperation. everyone should agree to support congress. that way we will have effective national government. but strategically, state by state, there will be different incentives to comply and to shirk.
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if you think about the factors, this will never fail to render federal measures of -- if we rely on a system of federals and based upon voluntary compliance, it's going to be prone to break down. these are structural conditions. it's not just the lessons of history that madison has spoken about. these are structural conditions that will always exist. therefore, if they always exist, the federal system is not going to work effectively. what's the alternative? the alternative is that we need a national government operating by law not on the states but on the population directly. you have to cut the states out of the loop. it's the major transformation i think which sets up the agenda for the federal convention. we're not going to think about a system of compliance of the states with federal measures. we will think about empowering the federal government to act sufficiently for its own purposes.
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then have the legal authority to do so. think about that because i need a short break. this is where i like to say, thanks, i needed that. that's point number one. point number two that i want to discuss comes up in item 11. that's the long item i say where the professor and i disagree as to exactly when it was composed. if she's right, it has really interesting implications for the origins of federalist 10 which is the major text for interpreting the federalist. this is where madison -- going into the convention, madison has -- a second major agenda item. the first is we have to change the very nature of federalism. we need a different system. it has to be based on law not voluntary compliance.
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if it's based on law, then we need a new set of institutions. we need a separate legislature, executive, the whole architecture of government question comes out of that. madison introduces with item nine and continuing through 11 and 12, introduces a new item. he starts complaining about the states, not as federal units, not in terms of their performance of national duties. he starts criticizing them in terms of their own internal government. he says there are three things wrong with them. the first two are kind of right up there in the first passage. the states enacting too many laws. madison was a libertarian in some ways. he sees laws, passage of laws as the expense of liberty. too many laws being passed, maybe because there are too many being passed, they are being changed too often.
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he starts with two very specific complaints. items nine and ten. their injustice betrays a defect still more alarming. more alarming not because it's a greater evil in itself, but because it brings more into question the fundamental principal for a republic government. the majority rule in such government are the safest guardians both of public good and of private rights. public good and private rights are madison's two big criteria. public good means the collective welfare of the whole. private rights is what are we committed to as individual liberal citizens. then he asked one of his questions, to what causes is this evil to be ascribed. the first is to talk about institutions. the second cause, which may have been compiled later, is the people themselves and about the problem of faction within the larger society.
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this is a great passage because it quietly but powerfully the ground of constitutional thinking had shifted. the problem with constitutionalism for the framers of the constitution going into the convention was essentially a matter of giving the national government adequate authority to do what it was supposed to do. in a lot of ways this say national security question, it's also a matter of commerce and revenue. need not have required a large open-ended grant of legislative power. madison is adding a new element. there's a second set of problems here. that has to do with what is going on individually within government within the states. here he has two concerns. one is he is concerned that states will continue to enact legislation that will try to interfere with national policies.
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but his second concern, the radical breakthrough is he says we need to protect the rights of individuals and minorities within the states taken individually against the rule of faction majorities. meaning madison wants to say it should be a purpose of national government from this point on not merely to be sufficient for its own purposes, we want a national government capable protecting individual minorities within the states against misrule. there's good emphasis to think he cared about his own class, the wealthy, the propertied, those with the largest estates like his father, the largest landowner in orange county, virginia. people like the carrolls of annapolis, charles, father and son, people of that stature. that's fine. but i think madison writing and extends to slavery in an interesting way.
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he was never very public in his feelings about slavery. there's an interesting passage where he discusses it and links it up to the problem of libertarianism. the key thing is that there's a vision of national constitution making which is not just about the open overt, obvious purposes of national government. there's a vision here which i think anticipates the 14th amendment from the civil war period. the key proposal that comes out of this discussion for madison going into the convention was to give the national government a veto, but a negative on state laws. meaning madison felt that for the union to be secure or to resolve what he called the disgusts against a government, what you wanted was to give congress and perhaps the senate the right to negative legislation. that would help the national government protect itself against the states should the states want to interfere.
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since we're in maryland, a great case here is mccullock versus maryland. it's the classic example of a state interfering with national policy. another example could well be brown v. board of education. could well be issues whereby minorities were permanently -- the ability of minorities to exercise their liberty just rights would be permanently impacted because they were the oppressed minority within a state. there's a very expansive vision here of the possibilities of national government. so all this goes i think to a kind of lead to the general set of conclusions that i would like to reach. let's get our portrait up here so you are suitably inspired by the gravity of the moment. i spent a lot of time thinking about madison. i spent the last 40-some years doing it. actually, i've been working on the vices of the political system since the early '70s. the nixon years, as i like to
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say. brings to mind his maryland -- for a while his vice president whose name will not be mentioned here. i've come to see the analysis i gave you, i've come to see recently, it took me a long time to reach that. i spent a lot of time thinking about the genius of constitution making as madison embodies it. i have a number of colleagues who say, not without reason, that madison lost a lot of the things he cared about most. there was no congressional negative on state laws. eventually we get the 14th amendment which plays that role. madison lost that. he lost the equal state vote. he was deeply depressed by the idea that rhode island not to mention wyoming later reputed wyoming would have two members -- the same members of the senate of pennsylvania or massachusetts or whatever.
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he lost another proposal which he was deeply attached was the idea of a council revision, a joint executive judicial council that review legislation. he felt it would be better to improve legislation before it's enacted than to deal with consequences later. he didn't like the idea of remedying things by post litigation. if you could improve litigation -- improve legislation before it's enacted. he loses those points. look at madison's batting average. his rbi, his on-base percentage. his slugging percentage. whatever data point you want to think about. let's be careful about the father of the constitution stuff. perhaps he was overrated. i don't really agree with that. constitution making is not like baseball. it's an entirely -- it's a bad analogy. it's a different kind of enterprise. what i find really impressive
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about madison is when you think seriously about his role at every point in the process of constitution revision -- back to 1780s. he didn't sit in congress because of jefferson he knew what was going on here. if you think about his role in the early congress, virginia assembly, at annapolis, looking ahead to philadelphia, framing the agenda for philadelphia, at philadelphia, in the ratification debates, enforcing his colleagues to take up the project of amendments, the bill of rights. he's involved in every phase of the whole project. the whole experiment, he was involved in every phase of it. every point his contribution is a major contribution. which is why we're still reading him. i think reading madison is great because he was a powerful -- i still do this in my own writings. he's a powerful thinker. it's interesting because he didn't see himself writing for audiences.
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i think he did his best thinking for himself. some of his best statements when you read them they come in letters, memoranda, like the vices. they are one or two sentence expressions, why couldn't he give us a couple pages on this to expand on this. sometimes madison scholars have to pick up on the odd sentence and run with it a long way. i think we're justified in doing so. i wish he had spent 20 years of his retirement writing memoirs instead of letters and a few odd memoranda to make life easier for us. there's this kind of -- this sense of engagement and commitment and deep analysis of what's going on. i find him an impressive character. let's come back to our general subject. i started this on a cautious note. i think we also -- we face what
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i would call a madisonian dilemma. if i were the constitution maker, if i were the law giver, think about federalist 38 for those of you who read that this morning, remember madison says the aging confederacies, they had to be formed by a single law giver that had to skip down once his work was done. we have a process of collective deliberation. that's an interesting comparison. if i were the law giver, i could get rid of the senate or the filibuster rule tomorrow and have a national popular vote the week after and put the supreme court on 18 or 20-year terms. then i could go back to california where there's no humidity. i'm not sure about the humility side but i know there's no humidity. it's a great place to spend my career. in any case, there is what i like to call a madisonian dilemma. here is my last thought. then we will open this up to questions. no one better illustrates the promise of the american
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revolution than i think madison, maybe a side kick jefferson. these are guys who had a deep confidence in the capacity of human reason to think about how you might go about altering and abolishing and reforming governments. so we owe a lot to them. if we look around the world today with the countless tales of misery and failed transitions to democratic rule in so many other states, i don't think we should take the success of the american founding period for granted. it was destined or divined from on high by the powers that be. i think -- i don't thinki we should under value the significance of what took place here in a comparative perspective. it relied on having a lot of smart people engage in a committed way in framing a government however much i may dislike wyoming having two senators, that's not a crucial part of the story. on the other hand, there's that madison, who was deeply -- both
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the kind of a reformer but also deeply conservative. worried about the down side risks, who was not confident about the capacity of ordinary citizens to exercise sophisticated judgment. he was no democrat with a lower case d. he was founder of the modern democratic party along with jefferson. he was no democrat, at least initially, with a lower case d. he believed people had a right to rule, that elections were consequential, people should have authority. but he was very diffident on a lot of the particular applications. so we have a kind of madisonian dilemma. we should be confident in our ability to improve the rule of government but we have to be nervous about the consequences. that's the madisonian dilemma. i thank you for the patience you have shown me and listening to me. thank you. [ applause ]
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>> thank you, jack rakove. a very fine talk. an occasion for questions. just a reminder for people to come forward on either side of the auditorium where there are microphones. i will step out of the way. >> thank you. i was struck by your recommendation, if you were rewriting the constitution or amending it, about supreme court justices, that you would limit their term to 20 years, let's say. my question is really in three parts. one, i will give it to you hard. >> say again. >> one, i don't always agree
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with the supreme court's decisions. certainly, i think in the last ten years in particular, i think they are becoming politicized. but if you limit their terms, would they not become more politicized if that's the reason that you are advocating a limit? if you have other reasons, i'd like to hear them. number two, would you extend the term limits to all of the federal judiciary down to the appellate courts and to the district courts? and number three, i'd like to hear you discuss putting term limits on senators and congressmen. >> right. well, three good questions. you know, i'm being arbitrary here, i suppose.
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i don't think they would become more politicized. it seems to me that's the point about how the appointment process operates now and has i think for last couple decades. certainly going back to the mid '80s. if you go back further, think about eisenhower appointing a republican -- a democrat and so on. i think have i that right. what's the biggest change that's taken place in the supreme court in the last short period of years? you can make a perfectly -- this is the case made by journalists. the replacement of sandra day o'connor, a stanford grad, whose son was my student, of which i am proud, basically replacement of justice o'connor by justice alito. that's changed what's possible in the court. that's what made it possible.
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i'm not sure how important i think citizens united is. that's a more complicated decision than we appreciate. but the addition of alito to the court shifted the balance. previously, there were two swing justices, kennedy and o'connor. now there's one, although, roberts for his own reasons stepped in in the affordable care -- we don't know his reasons, what they were, but took that function of the affordable care act. but alito is -- was a well nurtured conservative. and as soon as he was on the court, the new majority -- the emerging majority could act on what might really be its agenda. there's a long body of decisions relating to campaign finance regulations and so on that suggested more or less legitimate, some issues, but more or less legitimate. once the vote shifted, the court
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began fishing. the court indicated it was open for business. on these issues. i'm not sure it would make that much of a difference. seems to me those are the circumstances of what we have now. it's very hard to imagine how you get out of it. i was thinking of giving a deeper thought on this, which is to say, maybe we shouldn't take constitutional law so seriously. maybe the supreme court has just become a continuation of politicians by other means. i don't think that would be a bad answer. if you look at the position of the four minority justices on the affordable care act, which i think the majority of -- there's no constitutional objection to the affordable care act, the new deal agriculture case from the 1940s, cleared the way for that in terms of the authority of congress. and yet four justices prepared to strike the act down, even though the act is a reform from
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existing system. i don't know. i'm skeptical about that. i'm not sure there's an age benefit factor in terms of politicization. term limits for all judges? i'm not sure about that. i think a lot of judges at the district and appellate court level like the tenure consideration they are giving up more profitable practices often to have that position. they are not the ultimate decision makers. one worries less about their responsibility. it's important that they be conscientious. that's secondary to the supremes. as justice jackson said, we're not -- have to make sure i get this right. we're not supreme because we're infallible, we're infallible because we're supreme. we're not infallible because we're -- i'm going to get this mangled.
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you get the key point. i hope. term limits on others, that's a more complicated question. i was very -- i'm very much against term limits for members of congress. i wrote about this a long time ago back in the '90s when it was a live issue. we're happy re-electing our own members of congress. we want term limits for congress in general, but rarely for the people who elect us who we are individually happy to re-elect. americans have the right to elect whoever they want to be re-elected. the first victim of term limits in american history, legislatively by the way, was -- anybody know? it's a trick question. we just heard a lot about it. it's madison. madison was term limited out of the congress. that's why it doesn't show up in annapolis when congress moves there because he is term limited out.
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he served three years. so if it's bad for madison, i'm not sure it's good for the rest of us. that might be my principal. i don't know. it's not -- there's so many concerns about the extent of congressional corruption. i don't mean that in the narrow literal sense. if you talk to people like my former colleague larry lessig, people worry about the congressional workweek, which is short. now it's about three, three and a half days, if you want to be generous, the amount of time -- it's fine that they go back to the states. it would be nice if they spent more time on their proper business and worked out their problems in washington as well. that one is tougher. about citizens united, so long as it's mentioned, is that it's not clear -- one thing we don't know -- i'm against ideas of a corporation of having rights freedom of speech or religion. that's problematic to me.
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it's not clear you can spend lots of money on advertising, unlimited amounts and not get what you want. the koch brothers wasted hundreds of millions of dollars so far. that's one of the main outcomes of the last election. i learned this from a colleague, the lifespan of most ads is very short. they don't have much bite at all. you could have that kind of open-ended market for free speech and advertising and not really affect very much. the decision may be bad on the merits. it's not clear how much damage it has done. >> you are arguing against faction as an evil in itself. and then you are saying we should abolish the electoral college and simply have a majority vote decide who is the president. >> right. >> as i understand it, the electoral college ensures that the president is in effect the president of the whole country
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and not just a region of the country. this doesn't look like a problem right now, since we have two strong parties. but it's conceivabe we could have four or five parties running in which case a party which was a very radical and active faction could end up securing the presidency with, say, 25% of the vote. >> right. i mean, for starters, you have a national popular vote, what rules do you want to pertain? i assume you want to get to minimus 40% to 45%. if you want a runoff, to take non-trivial cases, have a runoff election in two to three weeks, i don't think that would strap us. i'm not proposing a scheme that would allow a small -- a small faction with a narrow plurality to be elected.
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there's aspects of that -- i think a big part of the development of the two party system -- it's not clear if we would have had a two party system without the presidency. if we had -- the model of parliamentary democracy in the modern form was not available to us in the 18th century. that's something we don't fully appreciate. the king still played a major role in determining who would be the chief minister. if you were to be the chief minister, you had to be able to command majority of the house of commons but also have the favor of the king and the favor of the king could be erratic. nobody in britain in the 18th century thought elections would determine who would be able to form a government. elections were a lot of rottenboros. they don't change very much. the leaders of different factions start negotiating and start with each other and then also with the king.
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so the americans in 1887, they didn't have the full model that we look at and sometimes envy able to them. i think historically, once we adopted the presidency -- had we not adopted the presidency, we could well have developed a party system that would look much different from what we wound up with. we had a party system from the late 18th century to civil war era which is very mutable. first party system, second party system, third party strict. parties forming, collapsing, reforming. the one thing that made them work was to gain the presidency. you had to cooperate on a party basis. i tend to think if we had national popular vote, those factors would work. the coalition forces to require -- would lead to two parties. i think third parties would have the lackluster history they have had the kind of interesting
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occasionally they might have some marginal effect on the outcome but they have never really -- they haven't had any lasting existence that's amounted to anything. >> just one quick follow-up. if we had a runoff election, madison is worried about tyranny. he says that if the government is the hands of a self-anointed group, if we have a runoff election, those of us who are worried about the influence of money and politics, wouldn't that even further enhance the influence of money in politics by forcing more money to come forward within three to four weeks to be raised very quickly and that would -- it would seem to be privilege the person who is the most favored by the wealthy. >> i think that comes back to my remarks on citizen united. we need to have more information.
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i know this is what my political science colleagues work on. we need more information about what effect does money actually have on the attitudes of ordinary voters. i'm not convinced that the enormous sums of -- i think it remains to be demonstrated, that the expenditure of enormous funds of money in presidential elections, that karl rove was rounding up, it's not clear how much of an effect it had. americans know who they want to vote for for president. those attitudes, those impressions with deeply embedded in the body politic. i wonder if money is more important at the primary level where -- for a variety of reasons. i think it's -- i would be careful about over generalizing. i'm not in favor of the flood of money into american politics. it's a bad thing. it does have all kinds of corrupting effects. but i think its impact on elections is more complicated.
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i think actually in a national runoff election, i don't think it would be very important. by the time you get to that point, the citizenry would be educated. people you have to worry about are the moderates. by and large, today when we talk about moderates, we mean people that don't know what they think. it's not madison's notion of 18th century moderation. it's not a way of reasoning with moderation about political phenomena. you are in the middle and you don't know what you think. [ laughter ] to be honest about it. who could be a moderate today? the differences between the republicans and democrats are so obvious. you would have to be an idiot to be a moderate. [ laughter ] maybe that goes too far. how could you not make up your mind when the choices are so blatant? you do worry that in some kinds of elections if you have to appeal to that part of the body politic, god help us. people say god looks after fools, drunkards and the united states of america.
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>> speaking about moderates, how do you and how would madison feel about measures to eliminate gerrymandering? >> well, i think he would be all in favor. again, you have to -- you get involved with political science debate where it's important to know what the effect actually is. a lot of political scientists would say it's easy to make fun of it and denounce it. it's not clear how much of an impact it has on overall outcomes. if we had a better system of designing districts, it's not clear it would make that much difference in the politics. having said that, madison -- there is in the constitution the time place and manner clause which gives congress the
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authority to override state legislatures in terms of kind of setting the basic rules for electing members of the house of representatives. congress used that authority in 1840 or 1842 to pass a districting act. down to that point, i think maryland may fit this. i'm not sure. a number of the small states still elected the members of the house at large, meaning not by district. i think maryland -- i think maryland had a system dividing into districts, but you would vote state wide for each district. there's a lot of experimentation in the beginning. madison says this is a good thing. maybe we ought to think about what's the best mode of election. i don't think he was in favor of state wide. virginia used districts from the beginning. pennsylvania was state wide. madison was in favor of having -- of allowing -- of having experimentation but also
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favored the idea that there should be a congressional right to override rules adopted at the state level. one of his concerns is -- he said this in a letter in '87 or '88 or maybe at the convention, i would have to check, is that state legislatures might well use their authority over districts to -- in a kind of we would say one person one vote way. meaning -- madison voted if you had districts, they should be of equal size. he didn't like the idea of what happened in american politics, particularly -- in the 20th century, the original case of -- it was a narrow case involving an odd-shaped district.
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the practice in america, the lead case comes out of tennessee where they required redistricting and for state legislative elections and was ignored. the farmers protecting themselves. i think madison liked the idea. it would be consistent with his criticism of -- madison's way of thinking, the state legislatures were the worst institutions in american politics, the ones he wanted to correct for a variety of reasons. electoral manipulation was something he opposed. i feel good about that one. >> that becomes kind of an appropriate lead-in then. i'm curious about what position you think states have both state legislatures and states as elements of the national government, especially given your recommendations of eliminating the two senators. >> that's just a personal thing. >> where do states fit into this government? >> i could speak for madison, not just because he's my alter
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ego. he discusses this, i think, in -- i have to check. maybe in the report of 1800 or elsewhere. it sounded like bill clinton. e. 6 it sounded like bill clinton but it all depnds on what you mean by estate. that's a serious question, because here are three definitions of madison, so we might say that a stage is a territorial unit. it has a geographic integrity, and that's one defining characteristic, we might say a state is defined as it's government and it's legislature. and a state legislature would be conceived as to help coordinate, in a general way, federal politics between state government and the national. not that that court ever really
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did all that much. i think madison would say this is the logic of federalists too. a state is nothing more than the conglomeration of interests that it contains. a state is a society which is initially defined by its boundaries. but to know what that state is, you have to know what kinds of social groupings, using that term very broadly, it embraces. it's one of the arguments i make against wyoming, anybody hear from wyoming? that, you know, the lodgic of te equal state vote says in effect that size should be a factor of representation, if you don't have it. meaning, small states must have a special interest that has to be protected. in terms of having equal say
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votes, small states don't have an equal state vote, then their basic interests are going to be dominated or overridden or whatever. the problem with that is if you ever ask the question, what are the interests of small states, you can't come up with an answer. don't look so skeptical, let's go across the chesapeake to the eastern shore, where there are three states, right, delaware, maryland and virginia. and i had a funny conversation about this once. i said, i don't think there are that many differences of opinion, you know, so the 18th century, one would have been a large state, virginia, the largest one would have been a moderate state, delaware of course was kind of a mistake that was detached from pennsylvania, three counties detached became a state for no obvious reason, it doesn't make much sense. i would assume that on the
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eastern shore, they all have a common interest in chicken farmers, or whatever goes there. the problem is, i was once on an airplane coming back from a conference, and two people who taught at the university of maryland on the eastern shore or something. they said, no, actually, they're very different parts of the eastern shore. i'm still not convinced, but at least i had to take their position. into account. i still think they're wrong. size does not determine, so let's imagine you're a enthusiast, do you own a weapon? do you pack? >> not currently. >> not currently. very carefully. let's say you have a strong stake in hunting, i once heard the phrase used the venison
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belt. so as you come from western pennsylvania, you come from wyoming, and the second amendment is your issue. or you're obama and you want your second amendment rights to go down the tubes. size is not a factor there. i don't care what variable you pick. those are the interests that determine how we vote. there's never a question, what's good for is small states and what's good for the large states? that was discussed in 1787. massachusetts, it's about fish, pennsylvania, it's about wheat, virginia, it's about tobacco and then other factors like slavery and not slavery, and which is also not trivial. the only time the size of the state really matters is whether
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you're voting on whether the size of the state should matter. so then you know what the outcome is, so you have a natural incentive. >> so you're taking land area versus population? >> it actually has to do with population. >> so massachusetts is big. but nobody lives there. >> we have a washington monument, and a jefferson memorial and a lincoln memorial and we put in ulysses s. grant and alexander hamilton on our money.
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>> there is, actually, we stayed in a hotel that's right krothsz from the madison building, the library of congress. so there is a madison building which appropriately houses the man scripts, you know the library of congress madison's collection. you might say that madison's commitment to learning and the higher education is embodied in that building and it may not be a statue or a monument, but it's not inappropriate tribute to who he was and what he was doing. i think the larger question you're asking is really it's biographical, i think madison's problem is, his secretary, he actually had a very charming personality. in his old age, he was a great storyteller, he loved to reflect on history. but he was very much a public
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man. if you compare him to those around him, you know, you could write a book called jefferson and, and the number of places you fill in the and. franklin like jefferson, was a great cosmopolitan and john adams was a raving egomaniac, they all had these distinctive personalities. i think madison in some ways is more the embodiment of a recent 18th century gentleman.
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so far i'm not related to any of them. nobody had better experience with the liberal government, i think, before 1787 than madison did. so the idea that the outcome of a particular debate would upset him, i mean he was frustrated by some overall tendencies, but they didn't have the mercurial definition. if you u know real politicians, the good ones, they learn how to cope and they learn what politics is like, they win a few, they lose a few and some are rained out. it's very hard to distinguish him from his public role. all the other -- the others are what we call the big six, the other five guys. they all have other attributes of their personality. madison, you really have to love the ideas. i find him a great guy to work with.
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and i want to figure out how he came to these ideas. his politically active and deeply reflective about it. >> what do you think madison and yourself think about the solution of california so gerrymandering where the two types of voters go to the election regardless of party? >> right. i don't have a strong opinion on this, i don't think we know enough about the results, because it's only operated for i think a couple of election cycles now. there's not much evidence it's had much effect. the number of districts -- actually what has to happen is you need to have a -- for the system to work, arguably what
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you have to have happen is one that's ideological that's -- the one in california.

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