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tv   David Rubenstein on 1787 Constitutional Convention  CSPAN  October 9, 2017 9:00am-10:01am EDT

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so they can move forward and produce meaningful research studies from it. >> you can watch this and other american history programs on our website, where all our video is archived. that's next, philanthropist david rubenstein discusses what he thinks americans should know about the 1787 constitutional convention. he's later joined for a conversation with national constitution center president jeffrey rosen. this event from philadelphia is just under an hour.
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[ applause ] ladies and gentlemen, welcome to the national constitution center, and happy constitution day! [ applause ] it is so exciting to welcome you here on the 230th birthday of the u.s. constitution, and we've had such an exciting morning. we've heard from ken burns and lynn novak, interviewed by david rubenstein about their new vietnam documentary. we heard from the plaintiffs in the brown versus board of education korematsu and tinker cases. their descendants came to talk about their experiences in those crucial cases. and now we're going to hear about what every american should know about the constitutional convention and the founding documents from the person in america who's done more to increase public awareness of those documents than anyone else. david rubenstein has had an
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extraordinary career. early on in washington, he worked as chief counsel for the senate judiciary committee under senator birch bah, and i want to take a moment to honor senator bey, who's about to turn 90. he was the only living american who was central to the framing of two constitutional amendments, the 25th amendment involving presidential disability, and the 26th amendment giving 18-year-olds the right to vote. so, if you would, please join me in expressing appreciation for senator bey. david went on to a distinguished career in the carter white house. he is head of the carlyle group, and he's carved out this unique niche as america's leading patriotic philanthropist. and just to help you understand the depths of what he's doing
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for america, the documents here at the constitution center, that stone declaration of independence, those rare copies of the bill of rights are lent by david, just as he's lent them to institutions around america from the library of congress to the smithsonian. but he is also a public educator who's really committed to the founders' vision of bringing together citizens of different perspectives so that they can educate themselves and other citizens about the constitution. he's bringing together members of congress. he interviews former presidents. you have seen his tv show where he's interviewed presidents bush and clinton. he is a convener and an educator and a philanthropist who's just committed to sustaining the founders' values and making them alive today. he is now going to tell us about the founding documents, which he has studied and collected and describe what we all should know about the constitutional convention and the founding documents, and then i'll ask him some questions and you can ask
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him questions as well. please join me in welcoming david rubenstein. [ applause ] >> there is no greater pleasure in life than being introduced by jeff rosen. he always exaggerates. my mother would love to hear everything he says, and she would be the person to believe everything he says. how many people here are from philadelphia? i'm just curious. okay, anybody from outside philadelphia? okay. how many people here really knew this was constitution day before you -- okay. how many people here took civics when you were in junior high school? wow. okay. how many people are naturalized american citizens, anyone? oh, wow. okay. so, here's what i'd like to do, i'd like to spend a little time before we have this session with jeff answering a couple questions that i often think about myself and i'm asked about relating to the constitution. so, let's start with the first one -- why do we need a constitution? what's the point of having a constitution? when our country was created,
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roughly in 1776 when we began to fight the war against the british in the revolutionary war, no country in the world had a constitution. there were no constitutions. people had kings or they had common law. they didn't really have constitutions. so, why do we actually need a constitution? well, when the constitutional convention began, it began in a situation where the country was not doing very well. let me describe. we won the war against the british. starting in 1776, as you know, independence hall, now called independence hall, was where the declaration of independence was drafted or approved, and ultimately it took us a number of years to win that war. when the war was over in 1781, it took two more years to actually come out with a peace agreement called the treaty of paris. so, between 1776 and 1783, the time we fought the war and the time we ended the war, we were operating under something called the articles of confederation. and the way that worked was there were 13 colonies.
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each colony would come together in the articles of confederation congress and each had one vote. therefore, the big states and small states were exactly the same. the big states obviously didn't think that was fair, small states loved it. problem was, in those days you couldn't get anything done under the articles of confederation. it wasn't really an executive or a president. there was a president of congress, but there was really just a congress, and the articles of confederation did not allow this congress to tax the states without their permission. and of course, the states didn't want to be taxed. they also didn't allow the states to have an army or to really bring an army together. there was no power to bring an army together. so, without the power to tax, without the power to bring an army together, the articles of confederation made the 13 colonies relatively weak. in fact, at some point it was thought foreign countries would do alliances with some of the states and the states would become parts of different countries and the articles of confederation states would fall apart. it wasn't clear after we won the
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war in 1783 and it was resolved that this country would actually really survive. so, from 1783 to roughly 1787, the country was not doing very well. we were afraid of additional attacks from other foreign countries. turns out, as you know, it wasn't that easy for these states to get together. to go from, let's say georgia, up to massachusetts could take a month or two to get there if you didn't go by water. it'd take a long time. communications are very weak. the states really had very little in common. in fact, when the original continental congress was convened in philadelphia in 1774, at that time, people came to philadelphia. more people who came to that meeting actually had been to london than had been to philadelphia. in other words, of the people who came here for that gathering, very few of them had actually ever been to philadelphia before because people didn't travel between the states that much. they basically had their relationships with england. so, we had a very weak system of
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government. we were afraid that the country wasn't going to survive. and the man who was really the most interested in this country surviving had almost given his life for it was george washington. george washington, after he had won the war on behalf of the americans, he retired to mt. vernon. at that time, he never intended to go back into public life, and he was worried, though, that the country was falling apart and what he had fought for so hard and so many men had given their lives for would actually not come to pass and the country would disintegrate, and actual leac ly, the great war we won would be for nothing. so, alexander hamilton, james madison and others tried to figure out a way whether they could bring together the country to have a better form of government. so, what happened was there was a meeting in annapolis, and it was designed to theoretically amend the articles of confederation, but it was really a bit of a subterfuge and james madison and others were looking for a way to create a whole new set of government. and to do that, they needed to have george washington present.
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so what they decided to do was convince him to come to the group, ultimately known as the constitutional convention. and george washington went back and forth, wasn't sure whether he should come or not, because if he came and it failed, it would hurt his prestige. if it didn't come and the articles of confederation continued, the country might fall apart and what he fought for so hard might disintegrate. ultimately, he decided he would come. and ultimately, each of the states were asked to send people to the constitutional convention in philadelphia. it was to begin in may of 1787. so, the first question is why did we need a constitution? well, we needed something different because the articles of confederation wasn't working and the country was likely going to disintegrate. the second question is what was the constitutional convention and how did it work and succeed in coming up with something that's now lasted 230 years? think about this, it was yesterday 230 years ago that the framers agreed to the constitutional convention, 230 years ago, and it's basically still in existence. so, how did that happen? each of the states were asked to
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send people. there were 13 colonies. rhode island said we don't want any part of this, we're not going to send anybody, so rhode island never sent anybody to the constitutional convention. they didn't really want to change the articles of confederation. as a small state, they were actually pretty happy because a small state had equal vote to the big states. the most important states in those days were virginia, which was the most -- probably the biggest state in terms of population, pennsylvania, and massachusetts. so, delegates were sent. ultimately, 75 people were appointed by the 13 colonies. only about 55 actually ever showed up. they came to philadelphia in may. and when they came here, they didn't know what they were going to do. many of them didn't know each other. almost all of them were people with public backgrounds. everyone had served in public office before. many of them were lawyers, almost all of them reasonably wealthy. they were all male, they were all white, they were all christian, and virtually all were protestant. only two were catholic. nobody jewish, obviously, no blacks, and there were no muslims, nobody else. it was all white, male
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protestant. and that's not unusual at that time. and of course, the idea that having women never occurred to anybody. so, they came together and they were trying to set up rules of how to operate. and the first thing they did was they said we need to operate in secre secrecy, because if people know what we're doing, it will get out and ultimately people will find what we're talking about offensive before we can come to a final agreement, it won't come to pass. so one of the rules was it had to be secret. second rule was nothing is decided until everything is decided. in other words, we'll have lots of debates, we'll agree on something, but until everything is decided, nothing is decided. that way, they could have free-wheeling debates and they might agree on something, but later if something else was decided a different way, they might have to change what they already decided on. they also wanted to make sure that everybody had a chance to be heard. and so, everyone was allowed to talk as freely as they wanted. george washington was selected as the head of the constitutional convention, although he actually almost
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never talked. he presided, but never actually said anything. most of the discussions were off the record, and perhaps we don't actually know what he said. the person who kept most of the records was james madison, who, right there, james madison. now, james madison, you're a descendant of his, i guess, right? >> i am james madison. >> you are james madison, okay. james madison was a person who was often called the father of the constitution. i think in many ways he should be, though i want to clarify later what he did and didn't do. so, when they came together, they agreed to spend some time getting to know each other. one of these people didn't know each other. george washington was the great man. he was going to house with the others in a boarding house, but ultimately, the wealthiest man in the city and one of the wealthiest men in the country, robert morris, gave him his house to live at and that's where he lived. so, when they came together, they began to have conversations, and the great debate was over one issue, how do we have a congress and how
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it's to be represented. and all of you probably remember from grade school or high school the great debate was how should we have a congress that's dependent on the size of the state or the number of states. in other words, should we have a congressional body that every state gets one vote or two votes or that's proportional to the population? james madison came in with what was called the virginia plan, and he formulated it. everybody else presented it, but the essence of it was he believed that everybody in the congress should be proportional. in other words, there should be two houses of congress, and it was why two houses of congress? well, most of the state legislatures that existed under the colonial days had two legislative bodies, and that was because the british system had a house of lords, a house of commons. and so, most of the colonial legislatures had two houses. one was the so-called upper house, generally smaller, and a lower house, somewhat bigger, and that was always taken there were probably two houses of
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congress. james madison's view under the virginia plan was that each house should be proportional. there shouldn't be each state having the same number of votes. so, rhode island, let's say if they were involved, shouldn't have the same number of votes in one of the bodies as virginia or massachusetts. and that was the big debate. now, obviously, madison being from a large state, biggest state in terms of population, that was not surprising. that didn't go over well with the small states, and so, that was a major debate for quite some time. ultimately, it was resolved in what we now know as the connecticut plan. and under that plan, it was decided to have two houses where one would be proportional, the house of representatives, and one would be depending on the number of states you have, each state would have the same number of senators, and it was decided to have two. so, that was the greatest debate that they had throughout the entire constitutional convention. there were many other debates, but that was the most important single debate probably that they had. once that was resolved, they could go on to other issues, and
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that debate actually took almost four months. the constitutional convention went from may to september. one of the other debates was who should be the executive and what is the executive? it wasn't really clear what an executive was. none of them really wanted to have a king. they had gotten rid of king george. they didn't really want somebody that was heredity king. they were thinking they should have an executive, but there was no strong executive under the articles of confederation, so they weren't quite sure what to do. and they were thinking for a long time they would have a committee that would be the executive and sometimes they weren't sure who should pick the committee. should it be the legislature, the senate, the state legislatures? ultimately, they came up with the idea of calling this leader a president, and they ultimately decided to have just one person do it. they were going to have the person serve one 7-year term. ultimately, towards the end they came up with no limit on how many times you could serve as president and four-year term. and it wasn't clear exactly what the president would do, but it was pretty much known that george washington would likely be the first president, and that's probably why they gave him the title as well commander
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in chief, because it was recognized that george washington would likely be the first president, and he obviously had the capabilities of being the commander in chief as well. one of the other big debates was what to do with slavery. slavery had become a very big part of the united states. at the time of the revolution and the time of the constitutional convention, roughly 20% of all americans were slaves. only about 2% in the north but about 40% of people living in the south were slaves. and the southern states cared very much to not change that system. the northern states weren't i would say abolitionists. they didn't think slavery was a good system, didn't want to be part of it, thought it would be good to get rid of slavery, but they didn't work hard to get rid of slavery. they just didn't want it to encroach in their system, so there were very few moral debates in the constitutional convention about getting rid of slavery. it was recognized that the southern states wouldn't participate in the country and wouldn't be part of the constitution if we got rid of slavery, so the issue was how to
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address it. and ultimately, it was decided that slavery would be allowed in existing states. no slaves could be imported after 1808, so they give another 20 years or so before slavery importation would end, and it was thought at the time that probably the southern states would actually be happy with that because the fewer slaves that were coming in, that would increase the value of the slaves they already had in terms of the value of them. the debate was over how do you regard these slaves for purposes of proportional representation. if you're going to have proportion of representation in the house of representatives, do you count slaves as people or do you not count them as people? well, of course, the southerners argued for purposes of proportional representation in the house of representatives each slave would count as one person. but for purposes of taxing and if the federal government was to tax states based on their wealth, the wealth that was attributed to slavery was not to be counted, southerners would say. so, ultimately there was an
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inconsistency, but it was resolved this way. in the end, they used a formula they used in the articles of confederation for taxing purposes and slaves were counted as three-fifths of a white person. so all of the slaves in the southern states were counted as three-fifths of one person. it wasn't thought at the time realisic to get rid of slavery. after back and forth, back and forth, they basically came ready to come up with a proposal. they had a committee that resolved many of their disagreements. they had a committee to kind of put things together, write it up in one form. james madison was not on that final committee. the committee was actually led by agouverneur morris, who drafted it in his language and his writing that we actually have the constitution. but right before the end, as they had agreed to everything, and they wanted to go home -- remember, there was no air conditioning in philadelphia in those days, and they had agreed everything was to be secret. so, they couldn't keep the
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windows open. so, on the first floor of independence hall, they had to keep the windows closed and they also had to kind of cover it up so nobody could see it or hear what they were doing. sometimes they'd go to the second floor where they could keep the windows open, people probably couldn't hear them, they thought, but they were ready to go home. they were tired of the big flies coming in. they had to swat them away. they were here for four months, many of them didn't like each other and they had other businesses, other jobs to do, so they couldn't wait to go home. but about five days before the end, they had just about reached agreement on everything, one man, george mason from virginia, said, well, where's the bill of rights? we have no bill of rights in this. how can we have a constitution without a bill of rights? and they said, well, geez, we don't have time for that, and besides, we don't need a bill of rights. let the state constitutions give a bill of rights. and besides, we're not taking any rights away from anybody, so we don't need a bill of rights. there with a debate over that, but in the end, it was unanimously agreed, with the exception of george mason and two other people, that there would be no bill of rights. so the constitution was agreed to on september the 17th of
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1787, and then they had to get it ratified. the agreement on ratification was very interesting. remember, the whole process of the constitutional convention was originally theoretically to be an amendment of the articles of confederation. they were really doing an unfriendly takeover of the articles of confederation government. the articles of confederation government didn't say have a new constitution to replace us. that wasn't the intent. originally, the constitutional convention was really supposed to modify the articles of confederation, but of course, it got bigger than that. ultimately, though, when they agreed to the constitution, they had to go back to the articles of confederation congress and say, guess what, we have a new constitution. and the articles of confederation members of congress would say, wait a second, we're not going out of business. we're here and we're in control. you can't just amend the constitution that way or our articles of confederation. but ultimately, the articles of confederation congress recognizing that the system was weak, they took the constitution that had been sent to them and they sent it out to each of the states for ratification, so they basically went along with it. and each of the states was to
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put a separate convention together to ratify. it wasn't so clear that it would be ratified, because many people didn't like the idea that the federal government was going to be more powerful than it was under the articles of confederation, there was proportional representation. some people didn't like that slaveway was going to stay in the system and some people didn't like the fact that the president had the powers he had, not as much as we've seen today, but the president had many powers. a lot of things weren't popular, but one of the most unpopular thing was there was no bill of rights. and it became clear that one of the people who most fought against the bill of rights being included recognized it had to be changed, and that was james madison. james madison, who was often called the father of the constitution, he did draft much of the things that are in the constitution. a lot of it was his ideas, and he kept the records. there wasn't a official record-keeper, but james madison did a much better job and kept meticulous notes every day and at night he would return to his boarding house and write them up, and those are the most thorough notes we have of what
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happened at the constitutional convention. he said he would not make it public until the last member of the constitutional convention died. and the last person at the constitutional convention who died was james madison. so, upon his death, it ultimately came public, and that's how we really know what we believe went on. he was pretty good -- we don't think he was making himself look good by the notes he was taking but accurately coming up with things. but he thought at the end, we don't need a bill of rights, thought it would slow down getting the constitutional convention approved, but ultimately as it went through ratification it became clear that without a bill of rights, many of the states would not ratify it. so, promises were more or less made that there would be a bill of rights in the new congress, and that's why virginia probably went along with it among other states. so, the constitutional convention was pretty successful, came up with a document we're still living with 230 years later. what were the two biggest mistakes or the biggest mistakes they made in the constitutional convention? well, i think there were two. one was they allowed slavery to continue. i don't know that they could
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have ever eliminated slavery, but you could call it a birth defect, and it was so serious a birth defect, it led to the civil war. i think if the founding fathers recognized slavery was morally wrong, at least the northerners recognized it, maybe the southerners recognized it, but they didn't really know how to get out of slavery, so they ultimately continued it recognizing it would in their view die out at some point, but probably didn't think it would lead to a civil war. the other mistake was the bill of rights. they didn't actually have one, and as i said, they had to get to a bill of rights later. in the first congress of the united states, james madison followed through on his promise. he drafted up a bill of rights. he was a member of the house of representatives. he drafted it up, went back to the senate, back and forth. ultimately, 12 amendments were agreed to by the congress. they went out to the public, went out to the state legislatures, and ten of them became the bill of rights. 2 of the 12 were not approved, but one of them was subsequentally approved. and one of the ones that was not originally approved of the 12
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was what's now called the madison amendment, known as the 27th amendment, the last of the constitution. it's interesting. that amendment said that members of congress could not increase their salary during the term of which they were elected. so let's say a member of congress couldn't say i've just been elected, now i want to increase my salary by ten times. why? well, they thought it was appropriate that if you would increase your salaries as a member of congress, you should at least go through an election so that people knew you would have your salary increased in the next congress, and therefore, you might be voted in or you might be voted out, but people would know your salary was going to increase. it couldn't increase in the congress in which you were serving. okay, so, why would that get voted down? well, it was thought by most people in the country that members of congress should never have a salary increase, so they didn't want to have a salary increase at any point, so the idea of having a salary increase is really why they voted it down, but subsequently, a few years ago, it became an amendment to the constitution.
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so, why did we need a constitution? because the articles of confederation was not working. it worked in secrecy. 39 people signed it. three of them did not because they didn't have a bill of rights. george mason was one of them. and edmond randolph of virginia didn't sign it because it lacked a bill of rights. ultimately, bill of rights became part of it, and so the two major defects i think in the constitution were the lack of a bill of rights initially, which was corrected, and the continuation of slavery, which ultimately was dealt with in the civil war and subsequent amendments. today, if the constitutional convention founding fathers were to come back, what would they think of the system that they now see? i think they would think -- they would be shocked that something they drafted 230 years ago is still in effect. i think they would be shocked that the president has become so powerful relative to what they anticipated. i think they would be shocked that the courts have become so powerful in interpreting the constitution. i don't think they ever anticipated that. i think they would be probably surprised that the electoral
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college method that they came up with the system to elect a president, they didn't know whether they should be direct election or through other means, but that means, more or less, is still operating. i think they would probably be surprised about that. and probably they would be surprised that something that's survived over 230 months that they crafted in four months has not only made our country so successful in the way we operate in many ways but has become a model for constitutions around the world. so, what is the last question i'd like to address before jeff and i have a conversation is, why is it so important that people know something about the constitution and how can we do a better job of letting people know about it? well, i think it's important for all citizens to know about the country in which they live and how it's governed because you know what rights and obligations you have as a citizen, what your responsibilities are. it's a sad situation that actually very few people do know as much as we'd like them to know. today many of you may have been educated about this, but most people in the country today don't receive civics education. civics used to be taught in
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junior high school. it's not taught anymore. american history's not taught very much. in fact, you can become a major in history in almost any college in the united states and graduate as a major in history and not have a course in american history. and of course, in almost every college in this country, you can graduate and not take any course in history, let alone in american history. so we don't really have as many people knowing about our history as much as they should. recently, annenberg ten days ago released a study, the annenberg center at the university of pennsylvania, indicated that, hard to believe, but 75% of americans when asked to name a branch of the u.s. government couldn't name all three branches. 75% of americans cannot name the three branches of government. only 25% of americans can name the three branches of government. and in fact, it's hard to believe as well, but one-third of americans when asked could not name a single branch of government. so, obviously, we haven't done as good a job as we should in
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educating people about our constitution. so, one of the things about the constitution center and the constitution day is to try to remind people of this extraordinary document. when you think about it, you've had 55 white males came together, they created a document that has lived 230 years with 27 amendments, 10 of which are the bill of rights, and some of the amendments have gone away. prohibition was one amendment we abolished, so basically relatively modest amendments. and the idea that you can have such an incredible document help to create such a country makes the document worth studying. i don't know whether this country would have become the most powerful country in the world, the most desirable country in the world in which to live -- more immigrants come into this country every year than any other country, by far -- if we had a different document. maybe if we had a different constitution, maybe we would still be powerful, maybe we would have still been successful, but i'm not sure. the constitution had a lot of things in there that we should be very proud of, particularly the bill of rights. and so, i think all of us should be proud of the country in which
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we live that has a document that is the envy of the world. now, there are imperfections, for sure, and we are often trying to figure out how we can make the constitution better and occasionally amending it, and clearly, the slavery issue was one that was a terrible birth defect in our initial constitution. but today, given where we are, where there are imperfections in our society, the constitution is the living and breathing part of our society that we should know more about. final point. we don't have in our constitution in our country an official religion. we don't have an official religion. now, that's great. it's in the first amendment that no government really -- the government should not impose a religion, people have religious freedom. but in some ways, we do have religion, and the religion is the constitution. the constitution is like the biblical toga in many ways and the founding fathers are like ancient prophets. and so, we idolize them a bit, maybe more than we should, but i don't think, because i think george washington, george madison, john adams, alexander
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hamilton, among many others, did a great service for our country and all of us in helping create a document that we're still living with many, many years later that gives us the rights and the freedoms and the opportunities that we all have. many of us have come from very modest circumstances, as i have, and we might not have been able to rise to where we are today if we didn't have a country which allowed us to have these rights and these opportunities. so i think all of us should be proud of the country we have and the constitution. and today i hope you'll take some time in thinking about the constitution, how it came together, how it works, how it's a living and breathing document, and how it's almost like a civic religion for all of us, because we really trust the constitution. we believe the constitution is the ultimate source of power, the ultimate source of what is right and wrong in our country, and i think all of us should be proud to be citizens in a country that has a constitution that is the envy of the world. thank you. [ applause ] >> thank you so much, david, for that superb and inspiring
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speech! you have distilled for us with meaning and intensity what all of us should know about the constitution on constitution day, and you have told us why the constitutional convention was called and what the rules of procedure were and what the main debates about the presidency in congress were and the two mistakes of slavery and the bill of rights, which were eventually remedie remedied. and ladies and gentlemen, listen closely to what david said, and if there are any areas of those learnings that are unfamiliar to you, go back and learn more about them, because you must master this as part of your duty of civic education. david, i want to pick up first on your last thought experiment, which is what would the founders make of our democracy today, and i want to go through each of the four branches of government and just ask you to say a little bit more, channeling the founders on what they would make of our current presidency, courts and media. we have a new madisonian mission
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at the constitution center, co-chaired by senators in congress, people from both parties designed to answer that question over the next two ye s years, and it's crucially important. so, let's begin with the presidency. you said the founders debated how strong to make the president. madison wanted the president-elected by the legislature and the compromise was the electoral college. what would the founders make of our presidency today? >> i think they would be stunned that the president has become the center of u.s. government. the representative of the u.s. government around the world is not the u.s. congress, but it's the president of the united states. we now are on our 45th president, and i think they have taken a life of their own and they have the power that no founding father really envisioned. even george washington who they all idolized didn't have the power that i think current presidents have in many ways, so i think they would be most surprised the president has bottom the embodiment, really, the symbol of u.s. government. obviously, we have branches of government and a separation of powers. i think the presidency has taken
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on up such a great power that as we discussed, the president has been able to send troops into war without declarations of war. the vietnam war, we lost 58,000 americans and 200,000-some wounded. we never had a official declaration of war. in iraq, we never had official declaration of war. i think the founding fathers would be surprised that we've sent troops overseas and had so many americans killed in overseas wars without declarations of war being declared by congress. that was something that i think they would have been surprised about. >> in federalist ten, madison said that the worst vice to be avoided in democracy was for presidents and representatives to communicate directly with their constituents. so, this is asked in a truly non-partisan spirit, but what would the founders have made of tweeting presidents? >> well, for those who don't know what the federalists were. let me answer that. when the ratification process was going forward, it wasn't really clear that this document which was going to give so much power to some states and maybe
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take away power from other states and give the power to tax to a federal government and to give the power to raise an army to a federal government, that this was going to be approved. and so, three individuals really led by alexander hamilton, the others were james madison and john jay, they in trying to help new york ratify, they wrote under pseudonym the so-called federalist papers. they were published in newspapers, ultimately combined in books, and there were 85 of them, and they are the best statement about what our constitution was really supposed to be in the view of the people that created it. and so, in the federalist papers, if you go back and read them, you really have the best survey of what the founders really thought the constitution was going to be, and i think it was probably helpful in the ratification process in new york, and i think while it wasn't intended to help the ratification process in other states, some of the federalist papers did go to other states and i think it was important. i think george washington read a number of them and he circulated some of them to the legislators who were improving the constitution in virginia. i think in terms of tweeting, i
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don't know that they would be able to have a comment on that. i just i guess don't know what they would think. but i do think that the congress was thought to be the embodiment of the country at the time, and the congress was really where all the power was supposed to be. and over the years, we've obviously seen power go away from congress and towards the president. i think they would probably think that the dysfunction of congress -- they can't pass very much, is something they didn't anticipate. and also, they didn't anticipate political parties. there were no political parties at the time, and it was a feeling that we didn't want to have political parties. there were political parties in edge lien and there was a feeling that it really didn't work. so when the constitution was drafted, the idea of political parties didn't really exist, and i think they would be shocked to see how politically divisive the congress has become. >> so, two crucial points david has made. first, as he said, the founders fear the congress, not the president, will be the most dangerous branch, and madison is determined to limit congress' power to avoid tyranny, and also didn't anticipate the rise of political parties. it wasn't until the election of 1800 that madison, ironically,
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having foresworn parties, presides over the establishment of the republican democratic party, which they couldn't have anticipated. >> real quick, let me make a point. the reason they didn't want a strong president was they had had a king that they didn't think was very good, they had had governors in states that were appointed by the king or the parliament, and they didn't like these people who they thought were violating their rights, so they really feared an executive, they feared an aristocrat, they feared a hereditary kind of leader, and so they really wanted to make the presidency one where somebody had the job for a short period of time, but he and not she was not to be so powerful. and i didn't mention earlier, i should have mentioned that one of the problems with the constitution at the convention was it didn't address slavery, but another thing they didn't address, there was another one word of debate in the entire constitutional convention about giving rights to women. not one word. the idea that women would be eligible to be in government just didn't exist in their
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minds. it wasn't even discussed for a second. there was no idea that women would be participating. that's why it is amazing when you think about it. the people who were putting this constitutional convention together, they were not really representative of the country. 85% of the people living in this country of 3 million people, 85% of the people worked on small farms. about 5% worked on bigger farms. very few people lived in cities. at the time, philadelphia had -- it was a population i think of about 40,000 people. that was about it. there were only two cities bigger than 25,000. the other was new york. these were very small cities in many ways. most people were living on farms. the founding fathers were not really representative. they were all educated, all served in government before, all were reasonably wealthy, all, as i said, white, male, and protestant with the exception of two catholics. so, it wasn't very representative. and one point i'd just digress for one more moment. think about this today. suppose we said we're going to get rid of the constitutional convention -- and we can -- the
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constitution. under the constitution, there are two ways to amend it. you can amend it by getting two-thirds of each house to agree to something and then three-quarters of the states. you can amend the constitution that way. or there's one other way that's never been used. you can have a new constitutional convention convened, which can be approved by, i believe it's three-quarters of the members of each house. three-quarters of the members of each house, you can have a new constitutional convention. suppose we had that. suppose three-quarters of the members of each house said you know, the system is 230 years old and cell phones don't last for more than a year, why should a constitution last for 230 years? let's try something different. so, how would you have a new constitution and would it be center think about this, we had 55 people in the constitutional convention. there were 3 million people. proportional proportionally, if you had the same proportion, you'd have 5,500 people in a constitutional convention because we have about 1,000 times as many people. but let's assume we had a reasonable number of people, 100 people in a new constitutional convention as approved by the
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congress. who would those people be? who would be the next madisons, washingtons, franklins, hamiltons? do we know who these people are? do we see them? well, they may be hidden somewhere. we don't see them as much as we'd like to, and what would they come up with? i think it would be a wonderful study. maybe some foundation some day can find 100 very talented people, put them together for two months and figure out what government they would come up with and whether it would be better than what we have now. i suspect it wouldn't be much better, even though we had an unrepresented group come up with the constitution. it's a pretty good system and it's the envy of the world, as i said earlier, so we have to marvel in how they came up with something in four months that we're still living with 230 years later. >> this question of why are deliberative bodies today seem less enlightened thap the time of the framing, at least to the second question, what would the framers make of congress. and you talked about the polarization and the rise of parties, but why has it become dysfunctional and undeliberative
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in the way the framers didn't anticipate? we talked earlier about the ryan lizza, "the new yorker," who in one of the first meetings of this commission said the problem is transparency. the fact that all congressional deliberations are done in realtime makes compromise impossible. and david's second point about the procedures of the convention were that no vote was final until everyone had had a chance to talk and that it was in secret. so, do you agree with ryan that transparency is an issue? and what are other structural changes that have made our congress today less deliberative than they had hoped? >> you know, there are certain words that in today's society everybody loves. so, who's against the word diversity? nobody. who's against the word equitable? nobody. who's against the word infrastructure? nobody. who's against the word transparency? nobody. but the truth is, transparency isn't always perfect. so, all of you probably have conversations in your business or your personal lives. you wouldn't want them to be on the front page of newspapers the next day because they're very private. you say certain things in private that you don't really
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want public. and the same thing is true in congress. because everything is so transparent now, members are afraid of saying anything that might be criticized by somebody on the far right if they're a republican or far left if they're a democrat. and so, members of congress are very skittish about doing very much, and they're very afraid of not getting re-elected. it's an interesting thing. members of congress -- there are 535 members of congress. 98% of the people in the house of representatives who run for re-election in a general election win. sometimes they lose in a primary, but mostly they get re-elected, and most senators, probably 85% of them who run for re-election win. so it's not a great danger that they're going to lose, but they're so deathly afraid of it. now when you talk to members of congress after they lose an election or they retire, they say i wish i had retired earlier, i wish i had lost my election earlier because i'm never as happy as i am now that they're doing something else, but they're deathly afraid of losing this position. so, as a result of that, they have a very sad life, in my view. they have to have two homes. they have a very modest salary. the salary for a member of
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congress is modest by my standards, maybe not by everybody's standards. it's about $175,000. they have to support a family and they also have two homes, typically. so as a result of that, most members of congress are either extremely wealthy or they are really poor. and if they're really poor, they don't have wealth, they live in the house of representatives. 75 members of the house of representatives -- there are 435 members -- 75 have to live in their offices because they can't afford a second apartment. is that a good system? probably not, though they get to exercise a lot more in the gym where they shower in the mornings, but other than that, it's probably not a good system. so, i think members of congress are afraid of losing, they're afraid of retiring, and right now they're just afraid that everything they do will be on the internet, everything will be on talk radio, and as a result, members of congress i don't think really know each other very much and are afraid of getting together. when i worked for senator birch bayh, they talked together and
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got deals done. today you rarely see them socializing or voting for each other's bills. they try to do things with one party and it doesn't work very well. the founding fathers would be astounded if they saw how divisive the congress is. >> that idea of both parties talking together has definitely changed. our new chair, vice president joe biden, told an amazing story about how when he came to congress, john stennis, the southern segregationist told him, just go sit at the end of the lunch table and listen to the conversations. and he heard republicans and segregationists talking about their families and their health problems, and they bonded and they became friends. and he said now no one has lunch together. >> well, they also -- generally, congress is a tuesday-to-thursday type of thing. generally, now, you don't have votes except tuesday to thursdays. so they go home thursday night, meeting with constituents, raising money, dealing with their families, whatever they're doing. so on thursday night, friday, saturday, sunday, monday, they're basically home and maybe should be meeting their constituents, but they're only spending a limited amount of
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time together and as a result don't know each other well, don't trust each other much. i've created some programs in congress where i try to get members to come together for dinners and so forth and ask them to sit with people from the opposite party. and they tell me this is one of the rare occasions where they talk to people from the opposite party because they're not allowed to do it very much publicly anymore. >> replicating the constitutional convention where people of different perspectives were locked in a room together and forced to be in secret. all right, the judiciary. you said it's become much stronger than the founders would have anticipated. because it's constitution day, one other important bit of wonkery or learning -- why is this that the courts have the power to strike down laws? where does the power of judicial review come from? hamilton says that when there's a conflict between the will of the people represented by the constitution and the will of their servants represented by the legislature, you prefer the master to the servant, the principal to the agent. so that's the whole thing. the constitution represents the will of the people more than those ordinary laws do, and that's why judges can strike
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down laws in the name of the constitution. but what would they have made of a world where the supreme court is deciding all of our political questions? is it an appropriate response to the fact that the powers of the president and congress have grown? should the courts grow accordingly, or have things gotten out of balance? >> well, the courts were not really envisioned as being that important when the constitutional convention was set up. they dealt with it in just a few short discussions in their constitutional convention. and think about this. the first chief justice of the united states was named john jay. he had been a new york person who was involved in helping in the revolutionary war. he was well respected, from a very proper family. as chief justice of the united states, appointed by george washington, he was asked by george washington to go over to england to negotiate a treaty. so he was gone for six months negotiating a treaty. so in other words, the chief justice was not thought to be so independent, he was negotiating a treaty on behalf of the administration.
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another time, robert jackson was a justice on the supreme court. he went and became the prosecutor under the nuremberg trials. so obviously, that was an unusual kind of situation. earl warren became head of the warren commission to investigate the kennedy assassination. so, we have changed our view in what judges and justices should do. we used to think they could have other side jobs. abe for theis apparently advised president johnson as an adviser when he was on the supreme court, probably not something he was supposed to do, but our standards have changed. today the supreme court is elevated at a certain level beyond what anybody i think in the founding fathers would have thought would be the case. the justices are very respected. there are many reasons for that. they would say maybe because they're not televised. we don't televise the supreme court hearings and that's not going to happen anytime soon. maybe that's because if you see somebody up close, you may not think as well of them. i think they have very good reasons not to do it. i don't think they will do it anytime soon. but for whatever reason, the justices of the supreme court
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are really highly regarded people. they have really independent views on things that are not viewed as favoring one party or another necessarily or one economic interest over another. and that is not probably what the founding fathers envisioned. in those days, you could be a judge and also you could have a practice on the side. you could be a judge in federal courts and you could also still practice law, which is hard to believe, but it was a different system. today i think the courts are much different than they used to be, and i think it's probably better for the country. and for those who don't know the constitutional history, when the constitution was written, it wasn't actually decided at that time that the courts could decide that an act of congress was unconstitutional. but in the famous marbury versus madison case in 1803, that was the first time where the supreme court said this action is unconstitutional and you can't do it. and from that point on, the courts have been able to determine that something that congress is doing or other parts of the government are doing is unconstitutional, and that's really given the supreme court the power they have when they
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can declare something unconstitutional and the other branches of government respect it. in some other countries, they might say we don't care what your court says, we have the army, we'll do what we want. but in this country, what the court says is actually honored by the rest of the government. >> your point about the tv cameras looks different for the first time in light of our discussion of transparency in congress, and you may be right, that the lack of transparency has increased the court's authority. is judicial independence under threat today, or are the american courts well insolated from political pressures? >> well, the supreme court is transparent in the sense that they write very detailed opinions. they're very transparent. just in federal courts we don't have television, but it is transparent. we do have the audio of what they're saying. they get that out right away. the biggest worry i have about the judiciary's independence is this. we pay our judges very modest salaries. they're paid roughly the the same as members of congress.
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and because we're afraid of increasing our salaries of members of congress or members of congress are afraid of increasing their salaries and the justices are basically paid roughly the same, you have to ask a person to serve on the court, supreme court of the united states, for example, for $170,000, or roughly $180,000. the chief justice may get a little bit more. if you are a clerk on the supreme court, let's suppose you're a top law student and you go to law school as you did or harvard law school or university of chicago law school where i went and you're a top student, you can clerk on the supreme court. you clerk on the supreme court, i believe the salary is roughly, i think it's like $200,000 a year today as a clerk. is that right? >> sounds like a clerk in the audience -- >> how much? it's not probably much more than a justice, but it's around what a justice is paid. let's suppose it's $170,000, pretty much what a justice is paid. when you leave the court, you go practice law, you get a signing bonus typically at law firms of $250,000, plus a salary of let's say $200,000. so you're probably getting paid,
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maybe a clerk gets paid $150,000 or something like that. they are paid immediately when they go work maybe $500,000. the justices for whom they're working are still working for the justices they are working for are working for $70,000. we can get talented people to serve at relatively modest salaries compared to what they could make and we have so little corruption in the federal system. may be corruption in state and local systems you hear about time to time but you hardly ever see or hear about, because it doesn't exist, corruption in the federal system. think about it. you're asking judges to basically work for life at a modest salary compared to what they could otherwise make. i worry if we don't increase justices salaries you won't get good people, people of lesser qualities. getting the best people to serve as judges and justices. i think we're diminishing that. >> the media. hugely important question to
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james madison who at the end of his life is worried new media technologies like broadside press won't sufficiently unite people of different interest from farmers to manufacturers to bangers this is a media revolution, debate is happening fast. we have twitter mobs and brexit polls rather than long debates. what would they think of our media today and is it promoting thoughtful deliberation, slowing down passions in the wake of what is necessary. >> i often wonder if thomas jefferson, who was just a couple blocks away in an apartment he rented, he was writing declaration of independence. he was doing that like most of us, given 17 days to write the declaration of independence before he turned it in. what did he do? he waited to the last several days. he was busy, busy. he sat down and wrote it out. suppose he had to respond to
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e-mails. if you don't respond to an e-mail in an hour, somebody thinks you don't like them anymore. suppose he has to do tweets during writing declaration of independence. would it be as clear if the person writing it had it to do tweets and e-mails. obviously it's somewhat facetious to say that. today we value attention deficit disorder more than thoughtful, deliberate-of-thought processes. it's unfortunate today that all of us have to respond to e-mails and tweets. if you have attention deficit disorder you might be seen as actually being able to survive better in this world than if you're a thoughtful person. could beethoven have brichb those sim phones if he had to respond to tweets. could mozart if he had to respond to tweets or be tweeting or respond to e-mails. i don't have the answer to it. i'm glad i don't have to know the answer toyota. today we have a world where the media is taking so much time and attention and everybody feels
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they have to be so connected, that if you're unconnected you're not full felg your job as a citizen. for example, how many of you here will wait 24 hours before responding to an e-mail? okay. how many of you wait 48 hours? how many of you get upset if somebody doesn't respond to your e-mail within 24 hours. how many get upset if they don't respond in an hour? okay. how many have been tweeting? how many of you follow people? okay. how many of you feel today that the world is better off because we have tweeting. okay? how many of you wish we didn't have tweeting? okay. so i think it's a different phenomenon that we have today than founding fathers had to deal with. it was a completely different world in terms of communication. i do think the communication revolution which benefited all of us in many ways has had some down sides. i think some down sides we don't allow people to think as
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deliberatively as possible. madison as much as he worried about media, if he came back today, here, he would say this is far worse than anything i ever anticipated. >> maybe this very large macroquestion is nearly the end. madison sees tension between populism and he's studied failed republics. he thinks direct democracy fails into demagogues and a mob. he wants to set up filtering direct expression of popular will to slow things down and ensure best representatives come up with the best policies. all of the things we've been talking about cut against that madisonian vision and from tweeting and facebook to direct polls, direct democracy is rampant. how can we resurrect some of the filters on the direct expression of the popular will that madison thought was necessary for the whole system to survive.
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>> there were no real agrarian reformers at the convention. they were worried about democracy. remember they represented upper 1% of the 1%. they didn't pretend they were representing 85% small farmers and didn't care to do that much. they were worried those people if allowed to vote would do something dangerous. that's why they had filters like electoral college. they weren't interested in seeing true democracy. madison's studies of ancient dprooes made him think if you have too big a group it won't work. today we have a balance where people can vote in elections, electoral college which doesn't allow direct election. we've seen that twice in our lifetime where the president wasn't elected by popular vote. if founding fathers came back today and saw that system, i don't know if they would have changed it. they probably would have been happy with the system they have.
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generally we have to be thankful for madison who came up with a system that while imperfect still works today. how many other things that are 130 years old are still working today? very few things. very few things 20 years old still working. this system has had very modest amendments. some have constitutions and they have been modified hundreds of times, hundreds of times. we've had relatively modest modifications of this constitution. so i don't know whether it was by divine inspiration or what it was that enabled 55 people, 39 who signed it to come up with something that works 230 years later but i think we should be thankful for it and we should learn as much as we can about the constitution. try to read the constitution if you can once a year. remind your self what's in it. very few people do that, very few people know what's in it. those citizens that do will benefit and be better citizens. >> not once a year but once a week or once a day pick a different provision learn about it, read interactive constitution, listen to arguments on both sides as you
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approach issues in the news think about them from constitutional not political perspective and recognize that your political and constitutional views may sometimes diverge. in order to do that we have to do it with what we've been doing now learning about constitution and history and educating americans about constitution on constitution day. please join me in thanking david rubenstein. [ applause ]
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next sunday join us at 7:00 p.m. and 11:00 p.m. eastern as we continue our series featuring oral history interviews with nationally organized pho photojournali photojournalists. watch our programs any time on our website you're watching american history tv all weekend every weekend on c-span3. american history tv on espn2-of-weekend museum, ar kifl films and programs on presidency, the civil war and more. here is a clip from a recent program. >> all should pay whatever taxes necessary to improve or expand any essential service. but with our present tax load, we should avoid pressuring government for any new services that aren't absolutely necessary, because we all know
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