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Podcast: Does the Constitution Require Birthright Citizenship?

Jeffrey Rosen: [00:00:07] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is the only institution in America chartered by Congress to disseminate information about the Constitution on a nonpartisan basis. Recently President Trump proposed to end birthright citizenship through executive order. The proposal has set off vigorous commentary. Does the president have the authority under the Constitution to end birthright citizenship? Could Congress do it by statute if the president can't do it by executive order and what does the Constitution mean in the 14th Amendment it states - and We the People listeners I want you to bring out your interactive constitutions - all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Joining us to discuss this crucial constitutional question are two of America's leading commentators on it. Akhil Amar is Sterling Professor of Law and Political Science at Yale Law School and the author of many acclaimed books including most recently The Constitution Today. Akhil is the co author of the interactive constitution's explainer on the citizenship clause with John Harrison. And dear We the People listeners I want you to check out the common explainer right after the podcast. Akhil, it's so wonderful to have you back on We the People. And Edward Erler is senior fellow at the Claremont Institute and professor of political science emeritus at California State University San Bernardino. He is the co-author of the book The Founders on Citizenship and Immigration and has argued that birthright citizenship can and should be reformed without violating the Constitution. Professor Erler thank you so much for joining us.

Edward Erler: [00:02:01] My pleasure.

Rosen: [00:02:03] Professor Erler let's begin with you. What did the framers mean by the phrase subject to the jurisdiction thereof and why have you concluded that they did not believe to include the children of illegal aliens in the United States in their notion of birthright citizen?

Erler: [00:02:20] Well of course as you know that's the crucial question. The Citizenship Clause of the 14th amendment was introduced at a very late date and it was suggested that citizenship clause or a definition of citizenship was necessary because it had already been adopted - a provision had already been adopted that privileges and immunities of United States citizens would be guaranteed. So Senator Wade suggested that the definition of citizenship should be: all persons born or naturalized should be citizens of the United States. That suggestion went to the Joint Committee on Reconstruction and the committee took up the issue and came back with a provision that said: All persons born or naturalized and subject to the jurisdiction were citizens of the United States. The committee evidently put considerable weight on the provision "subject to the jurisdiction of the United States." The Citizenship Clause was introduced into the Senate by Jacob Howard. He said this was not an innovation and it was only a codification or a reaffirmation of the law of the land as that already existed. He was obviously referring to the Civil Rights Act of 1866 which had been passed over President Johnson's veto only six weeks earlier. The Civil Rights Act of 1866 was the first definition of citizenship, after the ratification of the 13th Amendment and remember this was passed by a two thirds majority of both houses of the Congress. So it enjoyed widespread support of the Congress. That definition of citizenship said all persons born or naturalized and not subject to a foreign power were citizens of the United States. So when Jacob Howard submitted the citizenship clause he knew that the Civil Rights Act of 1866 did not include persons who were subject to a foreign power. And so the citizenship clause that he introduced as you read at the outset was read to the floor of the Senate and someone objected immediately that this would include native persons. Howard said no it would not because they were considered to be foreign nations and they didn't owe allegiance to the United States but they owed allegiance to their tribes. They were considered to be foreign nations. In other words they're considered to be foreigners not owing allegiance to the United States. Senator Trumbull who had been the author of the Civil Rights Act of 1866 came to the support of Senator Howard and said yes subject to the jurisdiction meant owing allegiance to the United States and not owing allegiance to any other country, owing complete allegiance to the United States, subject to the complete jurisdiction of the United States. And that's what we take to mean to be the meaning of the jurisdiction clause of the 14th Amendment. It doesn't mean subject to the laws of the United States or merely subject to the courts of the United States. It means owing allegiance to the United States, being subject to complete jurisdiction of the United States and the exclusion of those who are not subject to birthright citizenship means those who owe allegiance to foreign nations who are subject to foreign nations - they are excluded. And I presume that means the children born to illegal aliens whose parents owe allegiance to other nations would be excluded from jurisdiction of the United States.

Rosen: [00:06:53] Professor Amar in your separate statement on the interactive constitution you strongly disagree with this interpretation and you say anyone born in America under the American flag is a citizen even if his parents are not citizens and indeed even if his parents are not here legally. Tell us why you believe that is the case.

Akhil Amar: [00:07:11] It's not just I who believe it it's basically I would say candidly I'd be very shocked if if that view were not held by every single member of the current United States Supreme Court and then that includes my student Brett Kavanaugh and many people that I work pretty closely with and it includes basically virtually every constitutional scholar who teaches constitutional law in a law school, left right and center who has weighed in on this, people who are law trained from Michael McConnell, a George W. Bush distinguished appointee to the bench now professor at Stanford, my collaborator in a recent op ed Steven Calabresi, the founder of the Federalist Society, other leading Federalist Society people like George Conway who is the spouse of Kellyanne Conway who works for President Trump. So this is actually the- the virtually every opinion issued by the executive branch of government, I can quote several, and leading Supreme Court opinions and so it's really the consensus view of lawyers left right and center. And by the way if the argument that we've just heard is that illegal aliens owe their allegiance to other countries well actually that would be true I guess of legal aliens too that they- and some of them may not be green card holders, they may be citizens, they may seem- they may be still students, they may be visitors on tourist visas, and other things. I myself was born in Ann Arbor Michigan and my parents at the time, they weren't here illegally but they also weren't United States citizens. So I've thought about this an awful lot and I've studied it a bit. So let me give your audience some general background and it's a mistake to start as late as 1866 or 1868. Let's start with that landmark opinion by the Court of Chancery of New York. And I'll tell you why we're starting there because Lincoln's attorney general thinks that this is the key passage and he, in 1862, Lincoln's Attorney General, Bates, in 1862 says people who are born in America of alien parents are citizens of the United States. That's in1862 responding to Dred Scott. And he cites, this is actually what he says in his opinion of the attorney general in 1862: I am quite clear in the opinion that children born in the United States of alien parents are citizens of the United States. And then he says I might sustain this principle by referring to longstanding principles of English common law that apply in modified form in the United States. But all this has been well done by assistant vice chancellor Stanford in the case of Lynch v Clark. And he cites this case of Lynch v. Clark. It's a new york opinion, 1844, and Lincoln's attorney general says this is the key decision. And here's what that decision says I'm quoting. Basically everyone born United States is a citizen with quote the exceptions are the children of ambassadors who are deemed to be born within the legions of a foreign country. Here's the bottom line payoff. Upon principle therefore - this is the judge in 1844 - I can entertain no doubt that by the law of the United States every person born within the United States whatever the situation of his parents is a natural born citizen. No one inquires further. No one asks whether his parents were citizens or were foreigners. It's enough that he was born here. Whatever the status of his parents and again he's made an exception for children of foreign ambassadors and he's also appealing to English rules that say, Oh when there's a foreign army that's occupying territory that might be different as well. So that's 1844 long before all of this. Dred Scott comes along and says oh blacks can't be citizens even if they're born in the United States, and Bates, and Lincoln thinks Dred Scott is a wrong decision. And he is elected president and he has his attorney general weigh in in 1862 10 opinions of the attorney general at 328 and it's just a one paragraph discussion by Bates. He follows it up later and the question is citizenship - this is the issue - quote citizenship of children born in the United States of alien parents. He says it's clear it's obvious - that's 1862 - and then he follows it up with a longer opinion later in 1862. But then the question is can the executive just do this on his own? The Supreme Court has said one thing can the executive on his own say something else? Remember that question audience because it's going to be the question for Trump because the Supreme Court will have weighed in on my side later in our conversation. And so that's why you get the statute in 1866 which as you've just heard says and I quote All persons born in the United States and not subject to any foreign power excluding Indians not taxed are hereby declared to be citizens of the United States. So that's an 1866 statute but by mere statute can you modify the rule of Dred Scott which seemed to say otherwise? That blacks can't be citizens. And so then you have the first sentence of the 14th Amendment. That's a codification of the Civil Rights Act of 1866 which is a codification of what Bates said which is a codification of what the New York Court of Chancery said in 1844 which goes back to all sorts of English principles that say as a general proposition even if you're a child of aliens you are a citizen. And then talk about the cases that are decided there after that confirm all of that, with two basic exceptions in America. One is children of diplomats and the other is tribal Indians who basically are in a quasi sovereign separate enclave in the 1860s. And then in England there was an exception that doesn't really matter to America at all that the cases talk about which is what happens if you have people born behind enemy lines when there's actually an occupying army the way the United States occupied Germany say after World War II. But that's not really relevant today. And that's what the cases are going to say. And no one in the reconstruction Congress clearly said anything otherwise. And the- and when I I emphasize all of this, this was the settled understanding by the Republican lawyers before the 14th Amendment was adopted. It's based on Bates, who was basing it on this 1844 case that he explicitly references.

Rosen: [00:14:34] Professor Erler, You have argued that the reconstruction Congresspeople did think differently and saw broader exceptions than just the children of diplomats and tribal Indians. And you have pointed to a statement by Senator Jacob Howard: This will not of course include persons born in the United States who are foreigners, aliens - I'm reading from the whole quote - who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. So that's the quotation from Senator Howard. Tell us why you think that that supports broader exceptions for birthright citizenship than Professor Amar suggested.

Erler: [00:15:14] Well I think it supports the broader restrictions because Senator Howard and Senator Trumble who is the chairman of the Senate Judiciary Committee and many others said so. No one in the reconstruction Congress said that the 14th Amendment adopted the English common law of citizenship. In fact it could not have adopted the English common law of citizenship for one very significant reason: the English common law of citizenship was rejected by the Declaration of Independence. Let us not forget in Blackstone there is no such thing as citizenship. Blackstone says that anyone born within the protection of the King owed perpetual allegiance, perpetual allegiance as a debt of gratitude to the king that was perpetual subjectship. There was no citizenship. Blackstone Does not use the word citizen in his four volume treatise on the English common law so that the Declaration of Independence says that the American people have absolved their allegiance to the British crown. This was a violation and a rejection of the English common law. It is impossible to believe that the American founders were adopting the English common law as the basis of American citizenship at the same time that they were foregoing or absolving themselves of allegiance to the British crown; in other words they were rejecting the English common law. They base American citizenship on consent. The consent of the governed and the declaration says that just powers of government are derived from the consent of the governed and no one could be ruled or become a citizen without his consent. I think it's very very very clear and the Framers took consent very very seriously, very seriously. Social contract basis of government was the idea that suffused the entire founding. The idea that the Dred Scott decision rejected jus solis as the basis of citizenship is simply wrong. The reason that Chief Justice Taney said that blacks of African descent could never be citizens was the fact that in his opinion the Declaration of Independence didn't include blacks of African descent and because they were not included in all men are created equal. He said they were not part of the people who framed and ratified the Constitution and he was mistaken in that regard because five states allowed free blacks to vote in the election that ratified the Constitution and the dissent in the Dred Scott case pointed this out, that an historical error that Taney made, that free blacks did in fact participate in the election that ratified the Constitution. So they were part of the people who ratified the Constitution. This was a massive error that Taney made but it wasn't the Dred Scott decision that repealed jus solis. It was the Declaration of Independence that rejected the common law basis for citizenship and no one in the reconstruction Congress ever suggested that the English common law was to be the basis of American citizenship. And this business about consensus - there have been consensus among lawyers and legislators from time to time for example that thought that separate but equal was the law of land and should be the law of the land. That doesn't make any difference. We believed that at one time when we no longer believe it. We see it was bad constitutional law at the time and it is still bad constitutional law. And I think birthright citizenship was never intended to be part of the 14th Amendment and it should not be part of the 14th amendment today. It was never intended by the framers to be part of the 14th Amendment. And I think it should be repealed. Most modern industrial nations have rejected birthright citizenship. England in 1981 stopped its birthright citizenship because Blackstone said birthright citizenship was a part of a feudal inheritance. It was the relation of master and servant. It was not suitable for a republican form of government and I think our framers realized that. By the way, Senator Trumbull who is the author again of the Civil Rights Act of 1866 said that he thought of using the word allegiance instead of- in the Civil Rights Act of 1866. But he found that it was a term of art under the English common law and that there was such a thing under the Common Law as temporary allegiance that we would- if he had used that word in the Civil Rights Act we would have had to have given birthright citizenship to those who were only temporary in the country. Under the English common law those who had temporary allegiance instead of perpetual allegiance, those who were born under the protection of the king had perpetual allegiance by the way which could never be put off or cancelled in any way without the permission of the king. But those who were in the country in the country temporarily had temporary allegiance and their children were not birthright subjects of the king. But if we had used that language in America in the civil rights act of 1866 those people who were temporarily in the country would have been given birthright citizenship. And Senator Trumbull said we had no right and we had no need to give those people birthright citizenship. And that's why he didn't use the word allegiance in the civil rights act. And that's the same reason that the framers of the 14th Amendment didn't use the word allegiance in the 14th Amendment. They chose the word jurisdiction and jurisdiction was the Republican substitute for the word allegiance which occurred in the common law. It was a rejection of birthright subjectship and a feudal relic that was rejected by the Declaration of Independence and the American framers. It should be recognized that birthright citizenship or birthright subjectship as it appears under the common law has to be gotten rid of.

Rosen: [00:22:57] Thank you so much for that. So just to review some of the terms the important terms we're talking about Professor Erler you've just argued that jus solis which is citizenship determined by place of birth as opposed to jus sanguinis which is citizenship determined by blood was embraced by the English common law and the idea of birthright citizenship or subjectship and you say that that notion was repudiated by the Declaration of Independence which instead based citizenship on the consent of We The People. Professor Amar your response to all of those arguments.

Amar: [00:23:30] Well there's some similarities, some overlap between us but I'll go through what they are but none of that comes close to establishing this utterly outlandish proposition that people born in America of alien parents are somehow not citizens. Here's some common ground: That the rules in England are a little different. In England basically they don't- at the time of the founding or even at the time of the Civil War they have an idea of being subjects to the king and not quite an American idea of citizenship. In England they have an idea of perpetual allegiance and the way you're born you can't change that. Just like you can't divorce your parents you can't you can't unilaterally dissolve a tie to that the king under whose protection you're born. We Americans I agree with the professor don't believe that we think that you actually can renounce your allegiance to the Crown and for example become Americans. So that's different. That's not the question though of whether there's birthright citizenship. It's whether you can renounce your birthright and whether you're born in the United States of American parents or born in the United States a foreign parent actually naturalized, and then later choose to to go to some other country, to go back to your original country, it's your right to be a citizen and you're allowed to repudiate that. And the English don't let you do that. So that's a difference. But that doesn't answer the question whether it's your birth right to be a citizen on the day you're born and asked to consent of the governed. Consent is given by the 14th Amendment itself, by the Civil Rights Act of 1866 itself, by repeated statutes thereafter including one in 1952 saying it is the policy of the United States that people born here under our flag are citizens whether their parents are aliens or not. In that way it's a little bit like the English rules although there are you can renounce it and it's citizenship not subjecthood. But then the question is Under what conditions did we the people grant that consent. And the answer is yes we have to look at those words subject to the jurisdiction. Now I'll come back to that in just a second. Here's a second area of agreement. Dred Scott said some preposterous things. And it was wrong. We're in agreement about that. Now let's go through actually again what Americans say on this. In 1844 this landmark New York decision says following the policy of our nation that America has been to bestow the right of citizenship freely and with a liberality unknown to the old world. We're going to be different than the old rule we're going to give citizenship more broadly and just to repeat no one - here's the sentence - I can entertain and no doubt, says the judge in 1844, that by the law of the United States every person born within the Dominion and allegiance to the United States whatever the situation of his parents is a natural born citizen. No one inquires further. No one asks whether his parents were citizens or foreigners. It's enough that he was born here. Whatever the status of his parents. And remember he had earlier made an exception for children of ambassadors. And in that he's borrowing from English law. But he's saying it's different from English law because its citizenship. And it is renouncable if you want it to be. That's 1844 then 1862 Bates says it's clear. He says I'm quite clear. I mean it's hard for the language to be, the English language to be more clear, that citizens born in United States of alien parents who've never been naturalized are native born citizens of the United States. There is nothing in 1866 that has been quoted on the other side that repudiates any of that. In fact that the quotations that are used are taken out of context. they're actually misrendered. A word is is stuck in, a word "or" that even the National Review actually published some of this stuff actually backed away from and repudiated. Show me a clear statement saying all of that's wrong. Bates is wrong. Lincoln's attorney general was wrong. 1844 was wrong. You will not find it. And then there are later cases, there are landmark opinions by the Supreme Court. Wong Kim Ark, Plyler vs. Doe that reaffirm that subject to the jurisdiction basically means alien armies and children and ambassadors and Native Americans living in tribes. Now I want to say two other points because they actually are key about the original intent. In the 1860s there are racists out there in the 1860s and they say now wait a minute this birthright citizenship. Do you mean that it's a child of a Chinese person who's not able himself to be a citizen but their kid if born in the United States is a citizen. The framers of the 14th Amendment say yes that's exactly what we mean. The status of the parent isn't communicate to the child. So even though the parent is not and cannot be a U.S. citizen the child born of that parent will be a U.S. citizen under the rule that we're proposing. So they try to play the race card about gypsies the Roma and Chinese and explicitly the Republicans say no we're with Bates. We're that 1844 ruling. Second there are people in the United States in the 1860s who actually are in effect illegal aliens. Dred Scott says it took Times about two things one whether free blacks can be citizens and I agree with Professor Erler that they can and that the dissent is right and Dred Scott and and blacks voted for the Constitution and fought it at places like bunker hill. But now let's talk about slaves not free blacks but slaves and slaves. The entire purpose of the 14th Amendment is to ensure the core purpose that children of slaves are American citizens. Dred Scott says if you're descended from slaves you can't be an American citizen. The 14th Amendment says and the civil rights act of 1866 says on the contrary whether you're born as slaves or not if you're born in America you're an American citizen. Now some of the slaves that they're talking about were technically here illegally. They were smuggled into the United States in violation of a congressional statute passed in 1807. It's the act of March 2nd 1807 that prohibits slave importation from Africa. And yet people were imported from Africa in violation, slaves, in violation of that. Conservative estimates put that number in the tens of thousands. There are tens of thousands of illegal aliens in America. There were slaves smuggled in and it's utterly clear that the children of those illegal aliens were citizens. By the Civil Rights Act of 1866 and by the 14th Amendment. And so now we have two different examples. And by the way some of the people who are illegally here in the United States today were actually the product of sex trafficking and international slavery regimes and the like. So even today there are unfortunately people in America who are here- they were brought here perhaps illegally but their children are every bit as much, if they're born in the United States, citizens of the United States, as children of slaves in the 1860s. So two different examples where they clearly understood that the status of the parent would not be visited upon the child and that's what Bates and the 1844 thing says: we don't ask about the parents. We may not even know who the parents are. A foundling born in Kansas with a- and you find the Foundling and it's one day old and there's the umbilical cord sticking out, you don't know who the person's parents are but you know they were born in United States. We don't ask about the status of the parent - whether they're gypsies and can't be U.S. citizens or Chinese people- Chinese aliens who can't be united states citizens - their children are citizens whether or not they're- unless they're the children of diplomats. And children of slaves some of whom were here illegally, it doesn't matter. If they're born in the United States they are citizens of the United States. This is these are core meanings of the 14th Amendment and the civil rights of 1866. And I promise you that that's exactly what the court says in great detail, the United States Supreme Court, in a case called Wong Kim Ark. It goes through and and maybe in the next go round I'll you know quote you passage after passage after passage from Wong Kim Ark basically saying subject to the jurisdiction just means basically alien armies, children of diplomats, and they appeal for all of that to English law. They say English law doesn't apply wholly but in these respects actually it's- we call them citizens not subjects, you can renounce not like Britain, but in other ways actually yes we are borrowing the law of the soil. If you're born in America you're a citizen; unless your parents were diplomats, you're born behind enemy lines in an occupying army or you're a member of an Indian tribe that's like its own separate nation within the United States. And that's what subject to the jurisdiction means as Wong Kim Ark- the more modern Supreme Court has endorsed this, Plyler vs. Doe. So the text of the Constitution is clear, the history of the Constitution is clear, the precedents are clear. They all point in the same direction. Oh and by the way even if all of that were wrong there are statutes more recent than 1866 that say the same thing; statutes passed for example in 1952 after Wong Kim Ark is on the books say, here's what subject to the jurisdiction means, saying that. And the idea that a president unilaterally could disregard these statutes and the Constitution. This is an extremely eccentric position bordering on the crackpot.

Rosen: [00:34:06] Thank you very much for that. Professor Erler of course your response to a number of points Akhil made including: he cited that the quotation from Senator Howard that you've relied on, also relied on by Michael Anton in the National Review. He's the spokesperson for the National Security Council on whom President Trump relied, and Akhil Amar, suggesting that there was an "or" inserted into the quote that changed its meaning, the quote is: this will not of course include persons born in the United States who are foreigners, aliens and then Mr. Anton inserted an "or", who belong to the families and ambassadors. And then Professor Amar also introduced the Wong Kim Ark case. So your thoughts about why that case which applied to the children of illegal aliens does not apply to the children of illegal aliens would be great.

Erler: [00:34:57] I'm the one who originally inserted the "or" in that quote because I thought it clarified it and I still think the bracketed "or" is justified. I wrote a response to the editors of National Review which they posted justifying the use of the "or," using Jacob Howard's own words because after all he said that the reason that he didn't repeat the language of the Civil Rights Act saying Indians not taxed are excluded was that he regarded Indians as foreigners. So in that statement that he made he resisted the Indians in the 14th Amendment language because he regarded them as foreigners inhabiting a foreign nation, he said. We've always thought of Indians as being members of foreign nations and so they were part of the foreigners that he included there. And I gave plenty of other evidence including the Civil Rights Act of 1866 which he said, those who are subject to a foreign power, we are not eligible for birthright citizenship. I don't see how you can get any clearer than that. But I think that Professor Amar sees the 14th Amendment as somehow repealing the Civil Rights Act of 1866. The Civil Rights Act of 1866 does in fact exclude those who are subject to a foreign power from birthright citizenship so that people who come here illegally are obviously subject to a foreign power and the Civil Rights Act excluded them from birthright citizenship, and now he would say that the 14th amendment includes them in birthright citizenship. So you have an incompatibility between the 14th Amendment and the Civil Rights Act of 1866. And I don't know of anyone who makes that argument. Now I don't know what statutes that the professor is referring to but I don't believe that there is any case on point that says except in dicta that says that children of illegal aliens are considered to be citizens of the United States. I don't think there is a case and I don't think that Plyler vs. Doe does say that. After all the children that were involved in that case were in fact illegal aliens. And so I don't think that case is on point. Let me just say something about Wong Kim Ark, the argument in Wong Kim Ark, we have to remember that his parents were legal aliens. They were in the country legally but they were not eligible- they could never become citizens of the United States. They were barred from citizenship by treaty and by statute and they professed allegiance to the Emperor of China. So Wong Kim Ark was born in the United States and the question was whether or not he was a citizen of the United States. Now Justice Gray who wrote the majority decision there said that the 14th Amendment was premised on the English common law. But his argument there was the perfect nonsequitur. He said this: that the framers of the Constitution were perfectly aware and had studied the English common law and of course everyone concedes that the legal education at the time largely consisted of studying the English common law, so that's no surprise, but because they had studied the English common law we must read the Constitution in the light of English common law and that of course that makes no sense. Madison himself had said that whatever, in the Declaration of Independence, whatever in the common law that contradicts the principles of the Declaration of Independence was repealed by the principles of the revolution. Havari argued that birthright subjectship is utterly incompatible with the principles of the Declaration of Independence. So there is no notion that birthright subjectship survived the principles of the Declaration of Independence. As a matter of fact, Chief Justice Fuller's dissent in Wong Kim Ark makes precisely that argument. In fact it used to be a principle of constitutional construction prior to Wong Kim Ark that the principles of the revolution repealed anything in the English common law that was inconsistent with those principles. I think that principle of constitutional construction should have prevailed in the Wong Kim Ark case. The idea for example Justice Gray noted that was in the English Common Law only talk about subjectship, but he said something utterly fantastic that for our purposes subject and citizen were convertible terms- subject and citizen were convertible terms- so that wherever we see subject in the common law we can read citizen. Now I submit that this kind of language, that citizen and subject are convertible terms, in previous years, in centuries long ago, might have been language that would have flattered kings but in a Republican form of government, this is simply outrageous to speak in those terms. Madison would never have said for example that there is no difference between a monarchy and a republic. Thomas Hobbs for example might have agreed that since a monarchy is sovereign and a republic is sovereign there is no essential difference between the two forms of government. But the framers of our Constitution knew well the difference between monarchies and republics. So the idea that citizens and subjects were convertible terms is an absolute outrage and that alone should give us pause and perhaps lead us to rethink whether Wong Kim Ark should be repealed, as I think it should be repealed, that Chief Justice Fuller in that case had by far the superior argument. It was a 6 to 2 opinion but the majority opinion was so fraught with difficulties that I think it needs to be revisited. And the idea that the 14th Amendment rests upon the English common law is an outrageous misreading not only of the debates, the reconstruction debates but the Constitution itself. I think this ought not to stand.

Rosen: [00:42:47] Professor Amar if you could tell us more about the Wong Kim Ark case, why you think that it covers the children of illegal aliens, and also tell us about the Supreme Court's other relevant case law including the Rios Panetta case from 1985 which assumed in dicta that the parents of two U.S. born children were U.S. citizens, Plyler and Doe, where all nine justices agreed that no plausible distinction with respect to the Fourteenth Amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful. And finally on the case law tell us why you began by saying that you think that all nine justices of the current court would hold that birthright citizenship extends to the children of illegal aliens.

Amar: [00:43:31] Thanks Jeff. So let me just- I think Professor Erler realizes that he has to basically say that the Supreme Court didn't know what it was talking about in Wong Kim Ark, and he's right. Sometimes the Supreme Court gets it wrong, but not here I think. Let me just read you one payoff passage and the reason it didn't get it wrong Jeff is because Wong Kim Ark is saying the exact same thing that the New York Chancery Court said in 1844, that Lincoln's attorney general said in 1862, and that the Republican Party- it's the same Lincoln's Republican Party- are saying in Congress in 1866 unless you misread their quotes OK? Bates and the Republican Party basically it's a pretty cohesive party back then and they they have a certain view. They understand that England is different from America in a couple of respects. But when they say citizens are the same as subjects they mean for the purpose of birthright citizenship, not for everything else. Yes citizens vote in a republic and subjects you know inherit a crown. Yes in Britain you can't basically divorce the King. You can't divorce Britain even if you want; in America you can leave. Those are key differences between the American republic and the Brits; irrelevant to the question at hand which is are we going to have in effect a law of the soil like Britain or law of blood like a lot of European countries? And what the judge in 1844 says is we're going to have citizenship, not subjecthood, but citizenship, and it's renouncable by soil and that's what Bates says in 1862 and that's what the Republicans say in their statute in 1866 and in the Constitution, they're saying the same thing, not different things, Professor Erler. I don't think they're saying different things. They're saying the same thing. And that's what Wong Kim Ark says as well. They're all of a piece. And to repeat, the two differences: you can renounce your citizenship. That's what makes America great. And you're a citizen and not a subject, but it's a birthright idea with the same exceptions as the English have for ambassadors and conquering armies, and America adds one more: we've got tribes within our country or quasi sovereign nations in a way that Britain doesn't. Here's what Wong Kim Ark says: After- I could quote a lot- the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory. So you see yes they are saying we are applying the English rules to the American context. And so it just says we're gonna have a new exception for Indians. We're going to call it citizenship and not subjecthood. We're going to make it renounceable. But in this deep point about law of the soil rather than law of the blood we're affirming the- the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territories including all children here born of resident aliens with the exceptions or qualifications as of the old rule itself of citizens of foreign sovereigns or their menace children of foreign sovereigns. That would be kings or their ministers or born on foreign public ships or of enemies within and during a hostile occupation as a part of our territory. So that's what all the Blackstone references and all the rest and with the additional thing, with the single additional exception, so just like the Brits you know, there it's the subject, here it's citizen. They're not renounceable, here it is, just like the Brits with the same exceptions for foreign diplomats and concrete armoured armies with the single additional exception of children of members of Indian tribes owing direct allegiance to their several tribes. The amendment in clear words and in manifest intent includes the children born within the territory, the United States, of all other persons of whatever race or color. Every citizen or subject of another country while domiciled here is within allegiance blah blah blah. So we don't distinguish between children of aliens and children of citizens. And that was asked in the 14th Amendment debates about the Chinese, you see, so Wong Kim Ark is saying the same thing as the Republicans were saying in 1866, unless you misinterpret what they're saying which is the same thing that Bates said which was the same thing that this 1844 case said building on English authorities. So, and then the Supreme Court of the United States has repeatedly reaffirmed this later on in cases like Plyler vs. Doe as you mentioned in the modern era. And the reason I feel so- Jeff you asked me why I feel so confident about the justices- is because I did go to law school. I'm law trained and I'm in regular conversations with the justices. I'm actually having a conversation tomorrow with one of them about something. I did testify for Brett Kavanaugh. I'm a Democrat. He's a Republican. Constitutional law is not partisan. I've co-authored with- clerked for one person who's on the Supreme Court now, Steve Breyer- my co-author in a recent piece in TIME magazine/ Calabresi who clerked for another Supreme Court Justice, Antonin Scalia. He's a Republican. I'm a Democrat, but I'm happy to give anyone- I'm happy to take any action you've got for me. We can place a nice big bet on this because the precedents are clear, the text is clear, the original intent is clear. The New York Times had an op ed by the pre eminent scholar of reconstruction two days ago on this topic. His name is Eric Foner. He wrote- a Columbia professor, former president of the organization of American Historians. He is by acclamation the pre-eminent scholar of reconstruction and he says this is clear. It's not ambiguous. It's clear. That's what Eric Foner says. That's what constitutional scholars who teach in law schools and are quoted by the Supreme Court, cited by the Supreme Court, followed by the justices, from Michael McConnell and Stephen Calabresi on the right to Larry Tribe and Walter Dellinger, a former solicitor general of the United States, on the left. I know of no constitutional law trained person regularly cited, in a law school, in a law school, because you know we actually- we do this thing called law day in and day out and we know we how to read cases and it's not a fair read in the case to say, because they say, you know, subjects and citizens are the same thing that they mean it for all purposes. They mean for the purpose at hand which is birthright entitlements; they don't mean it for Republicanism or for renounceability. So that's what we do. And all I'm saying is I'm about as confident about this as I've been about anything else. I have been cited 37 times by the United States Supreme Court, by justices across the spectrum, probably more by the Conservatives than by the Liberals. I I clerked for a liberal, Steve Breyer. So the precedents are clear. They're not in doubt, there are dissents but those are dissents. The text is clear. But what does it mean to be subject to the jurisdiction, it means actually you're born in the United States and if you misbehave, oh we're going to apply our laws against you. We may not even know what foreign country your parents came from, we may not even know who your parents are. You might be a foundling. You're not going to have DNA tests about who your real father is biologically or not but if, by the way, if we did, that would be a can of worms because all sorts of people aren't necessarily the biological children of the person that they think they are, of the father that they think they have. So it's a nice clean, clear rule: if you're born in the United States under the flag you're a citizen, with these two exceptions from England - conquering armies and foreign diplomats and a third one, to deal with a unique American situation which we don't have anymore which is tribal Indians. The text is clear. The original intent is clear. The history from 1844 on is clear and the precedents are clear.

Rosen: [00:52:34] Well in light of the Supreme Court decision that could lead states to legalize sports gambling, I don't know whether We the People can facilitate that. I'm not going to take that risk but I will say that at the end of this fascinating debate, it's time for closing arguments, and Professor Erler the first one is to you. In just a few sentences can you sum up for our audience why you believe that the president does have the authority by executive order to end birthright citizenship?

Erler: [00:53:02] Well I happen to be one who does not think that the president has authority to issue an executive order to end birthright citizenship. But I think he's imitating- trying to imitate President Obama who said, when Congress won't act, well I have a pen and a phone to act in their stead. But I don't think that President Obama ever acted constitutionally with his executive orders. And I don't think the president can act constitutionally here either. But I think Congress can act by statute to end birthright citizenship. And I think that they should. But I must say that Professor Amar's last argument was what Madison might call an ingenious sofism. Plenty of members of the reconstruction Congress wasted a lot of breath talking about allegiance when they talked in terms of jurisdiction. It's not enough to take up the latest edition of Black's law dictionary and look under the entry of jurisdiction to figure out what the framers of the 14th Amendment meant by jurisdiction. They said plainly what they meant by jurisdiction and it it's not what Professor Amar says they meant by jurisdiction. They meant something specific: not owing allegiance to any other country, being under the complete jurisdiction of the United States. And when Justice Gray said that the 14th Amendment adopted the way of the English common law on citizenship or subjectship, he said what no member of the reconstruction Congress ever said. I have read the debates, more than once, and there is not a single member of the Congress who ever said that we are simply adopting the English common law of subjects. We're drawing upon the ink well we're converting the English law subjects into the American law on citizenship. That was never the case and I don't think you could ever make the argument that that was the case. Justice Gray said look, Wong Kim Ark, he comes of age, if he wants to expatriate himself back to China, he is free to do so. Did he not understand that expatriation was against the English common law, that he was contradicting himself, and he contradicted himself many, many times in his opinion when he said that the 14th Amendment adopted the English common law? All we have to do is substitute citizen for subject and everything is going well. The opinion is simply absurd. It's as absurd as any opinion ever was, almost as absurd as Dred Scott. The Dred Scott opinion of course is too vicious to be merely described as absurd. But Wong Kim Ark is just as contradictory. I must say you can't simply rely on that opinion for any anything good and I disagree. The Wong Kim Ark opinion is expansive but it's not expansive enough to say that it is authoritative enough to include the children of illegal immigrants to be included as American citizens. I just do not believe that. There has been dicta, yes, but no case on point.

Rosen: [00:57:01] Thank you so much for that. Professor Amar, last word to you. Professor Erler helpfully made clear that he thinks that Congress could end birthright citizenship by statute, but the president could not do so by executive order. Tell us why you believe that in fact the Constitution compels recognition of birthright citizenship.

Amar: [00:57:19] Great so let's not lose track of that very important and helpful point that he did make: that what President Trump is proposing is flatly unconstitutional. That's actually the bottom line. Even though he and I disagree on other things and I actually think that some of this stuff is very very well settled, and, you know, it's kind of, you know, round earthers versus flat earthers, on some of this stuff. That's actually my view. And there are lots of things that are fairly debatable among constitutional scholars and judges, but this actually in general isn't that close. But even for that, ok, we are agreed that what President Trump is proposing, Professor Erler and I are in agreement that that's flatly unconstitutional at present, can't do this unilaterally. Good. Thank you for that. Very important. A note of agreement. Two final points: If you say subject to the jurisdiction, a kid of an illegal alien is possibly subject to the jurisdiction of some other country that he's never been to, never will be to, maybe. OK. But then that would be true of a legal alien too, not just an illegal alien. So if the test is somehow, is there any other country that could possibly regulate, are you born a dual citizen or something? And that makes you now not an American citizen, because let's imagine your parents are legal aliens. Let's imagine actually that they're permanent green- residents, they're green card holders. But you are on the day you're born not just born an American under the 14th Amendment but you also might inherit a dual citizenship from Canada or England or some other jurisdiction. So if he says are subject to jurisdiction means you can't- there has to be no other foreign government possibly in the picture. Wow. That's a radical proposition. That's true not just of children of illegal aliens, the children of legal aliens, not just people on student visas, not just people who are tourists, but actually permanent green card holders even. Wow wow wow. And now you see the clear contradiction between that and Wong Kim Ark on its facts. And he says oh the Supreme Court, they don't know what they're doing. He's right. Sometimes they don't. But I'm not sure that it's- that his- that Pandora's Box once you open it can be limited just to children of illegal aliens and it's a thin edge of a very big and dangerous wedge that I think runs squarely into Wong Kim Ark. And the third point, my final point is there is no- I've read the debates about the 14th Amendment too. I've written a bunch of books actually on the 14th Amendment and not just this one sentence, and I emphatically disagree with his account of actually what they say and don't say. And oh by the way Eric Foner is on my side. I'd rather have him than any other single person. And I actually think virtually all the reconstruction historians whom I know, and I know a lot of them, you know, would be on my side. Here's the point. Their conversation doesn't begin in 1866. They are building on what Bates has done in 1862, in their statutes in 1866 and their amendment, and Bates is building on an 1844 case that he explicitly references that is based on English rules of soil. So all this stuff about English rules of soil. You might not like it Professor Erler. You might think it collapses you know subjectship and citizenship, but on the relevant question actually which is not subjecthood versus citizenship, and it's not whether you can renounce your birthright or not, but on the question basically are we in America going to be a law of the soil place or law of the blood place? 1844 says we're a law of the soil place. 1862 Bates says we're a law of the soil place. That's what the framers of the 14th Amendment actually say again and again and again, even for children of Chinese people who themselves can't be citizens but the children if born in America can. And there are only three exceptions and two of them come from English law, all the way back in Blackstone: conquering armies and foreign diplomats and we add a third for American Indians in tribes because this is a different regime.

Rosen: [01:01:45] Thank you so much Akhil Amar and Edward Erler for an extremely vigorous but also extremely deep, specific and illuminating debate about this hotly contested constitutional topic. Dear We the People listeners you have been treated to what is indeed a deep dive into this important case and your homework is to take one of these statutes or cases that was discussed, read it and see if you agree with Professor Amar or Professor Erler and write to me to tell me what you think. Akhil Amar Edward Erler thank you so much for joining.

Amar: [01:02:21] Thank you.

Erler: [01:02:22] My pleasure.

Rosen: [01:02:27] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please listen and subscribe to our companion podcast Live at America's Town Hall. This is the audio feed of all of our phenomenal shows and public programs both in Philadelphia and around the country. They include scholars and thought leaders from Michael Beschloss and Doris Kearns Goodwin to Kenneth Starr whom I'm interviewing tonight, and they're just a wonderful companion to We the People for those of you who are hungry for constitutional education. And of course if you like our podcast tell your friends and colleagues and leave us a rating on Apple or wherever else you get your podcasts. As always dear We The People listeners please remember the National Constitution Center is a private nonprofit. We can't put on these podcasts or do any of the really important educational work we do unless you, the people that is We the People who love our podcast, become members and support us and sign up and tell your friends and tell their friends and continue to write to me to tell you what you think of the podcast. Your engagement is so meaningful and I'm so honored that you are learning with me about the Constitution every week and I want you to show that passion and commitment by joining the National Constitution Center at our website. Please go to to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

First Amendment: Speech

On this day, Supreme Court upholds baseball’s antitrust exemption

Summer Institutes: First Amendment

July 28-August 2, 2019

Join teachers from across the country and constitutional scholars from across the philosophical spectrum for a weeklong teacher institute at the National Constitution Center in historic Philadelphia in July 2019.

During the Institute educators work with content experts to deepen their knowledge of the history and modern understandings of the First Amendment through interpretation of the U.S. Constitution.  With master teachers and the education teams from the NCC and the Jack Miller Center, participants discover and develop innovative, nonpartisan ways to make the content relevant to their students. 

The Institute capitalizes on the NCC’s wealth of historical, constitutional, and cultural resources to demonstrate the ways the First Amendment has defined and continues to define America’s constitutional identity.  Educators will leave with new content knowledge, teaching tools, classroom-ready resources, and new skills for improving constitutional literacy.

Additional Information: 

Find more information about the 2019 Summer Teacher Institute here.

Apply for the 2019 Summer Teacher Institute here.

Summer Institute: Separation of Powers

Session One: July 7-12, 2019
Session Two: July 14-19, 2019

Join teachers from across the country and constitutional scholars from across the philosophical spectrum for a weeklong teacher institute at the National Constitution Center in historic Philadelphia in July 2019.

During the Institute educators work with content experts to deepen their knowledge of the history and modern understandings of Separation of Powers through interpretation of the U.S. Constitution.  With master teachers and the education teams from the NCC and the Jack Miller Center, participants discover and develop innovative, nonpartisan ways to make the content relevant to their students. 

The Institute capitalizes on the NCC’s wealth of historical, constitutional, and cultural resources to demonstrate the ways Separations of Powers have defined and continue to define America’s constitutional identity.  Educators will leave with new content knowledge, teaching tools, classroom-ready resources, and new skills for improving constitutional literacy.

Additional Information: 

Find more information about the 2019 Summer Teacher Institute here.

Apply for the 2019 Summer Teacher Institute here.


In partnership with the Jack Miller Center.

The Summer Teacher Institutes are made possible by a grant from the John Templeton Foundation.


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Midterms result in a divided Congress

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Government asks Supreme Court to shut down DACA

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Ken Starr: A Memoir of the Clinton Investigation

FDR’s third-term election and the 22nd amendment

On This Day: The first bitter, contested presidential election takes place

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Justices rebuff Administration in two key cases

Podcast: Voting Rights, Election Law, and the Midterms

Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We The People weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. We're thrilled to produce this episode of We the People in partnership with Ballotepedia the digital encyclopedia of American politics and elections. Ballotpedia shares objective neutral information that informs millions of voters and candidates. And we are excited that they're here to join our nonpartisan exploration of the text and history of the election clause of the Constitution and some of the leading court cases that are bubbling up in America. From Ballotpedia we're thrilled to have joining us Sarah Rosier. Sarah is Ballotpedia's news editor. She's been a Ballotpedia since 2013 and has served as director of the Congress Project and covered everything from presidential elections to the federal courts. Sarah thank you so much for joining. 

Sarah Rosier: [00:01:10] Thanks for having me. 

Rosen: [00:01:11] Sarah is joined by the co-authors of our interactive constitution explainer on the Elections Clause. Michael Morley and for FranitaTolson. And dear listeners just as Franklin Roosevelt asked the American people to take out their maps during a radio show I want you to take out the interactive constitution explainer on the election clause so you can explore Michael and for Anita's areas of agreement and disagreement. Michael Morley is assistant professor at Florida State University College of Law where he specializes in constitutional law and election law. He's the author of many publications including Prophylactic Redistricting: Section 2 of the Voting Rights Act and the New Equal Protection Right to vote. Michael thank you so much for joining us. 

Michael Morley: [00:01:51] Thank you very much for having me. 

Rosen: [00:01:53] And for FranitaTolson is professor at USC Gould School of Law where her scholarship and teaching focus on election law and constitutional law. She was previously the Betty T. Ferguson professor of voting rights at Florida State University College of Law. Her forthcoming book A Promise Unfulfilled. Section 2 of the 14th Amendment and the future of the right to vote will be published in 2019 by Cambridge University Press. For Nina, congratulations on the book and glad to have you with us. 

Franita Tolson: [00:02:21] Thank you, I'm really delighted to be here. 

Rosen: [00:02:22] Wonderful. All right let's jump right in. Michael describe if you will. What you and Franita agreed was the core original meaning of the elections clause? 

Morley: [00:02:36] Well the elections clause is the constitutional provision that confers power to regulate the the congressional election process and the the clause primarily empowers state legislatures to enact what the Supreme Court has called a complete code for the regulation of federal elections. So under this grant of power from the Elections Clause state legislatures are allowed to pass voter registration laws, determine how to assign polling places right, determine how what the canvassing rules will be, what the ballot counting rules will be. All of the various aspects that go into conducting a congressional election. The elections clause says state legislatures have the power to do that. However Congress gets to make or alter such rules so if Congress either disagrees with laws that certain legislatures have passed or even if legislatures haven't regulated on an on a particular issue at all. Congress is free to step in and enact its own federal statutes to address a particular particular aspect of the of the congressional election process. I think the most remarkable thing about the clause is that it shows structurally and in fact it's one of multiple constitutional provisions that structurally empower the political branches right elected state legislatures elected chambers of Congress to regulate congressional elections. 

Rosen: [00:04:02] Thank you so much for that for any of them. Franita you note with Michael in your common explainer about some important cases where the court has held that the election clause doesn't permit a state to refuse to print on the ballot the names of candidates who've already served three terms and validating term limits that's the Thornton case. And you also note that the court doesn't confer the power to regulate congressional elections on the state as a whole but instead a legislature of the state. I think you disagree in your separate statements about how broadly the legislature should be interpreted. And you note that in the Arizona state legislature case the Supreme Court read the legislature broadly enough to encompass the ballot initiative process that Arizona residents used to delegate the legislature's redistricting authority to an independent redistricting commission. Tell us why you think that the Arizona case was correctly decided and legislature should be interpreted broadly as well as any other things you'd like to signal about the elections clause 

Tolson: [00:05:02] So I think one of the things that Michael mentioned in his excellent opening is the fact that the clause also delegates to Congress the authority to veto state regulations with respect to time place and manner of federal elections. And so it's it's my view that as a part of that control in essence the clause gives gives Congress final policymaking authority when it comes to federal elections, even though states can in the first instance set the time place and manner of federal elections. So with respect to the ability of redistricting to take place through ballot initiative there was actually a law in 1911 that Congress passed that that that sort of allow states to have broad authority in that area and because Congress had signed off on it in essence and because Congress has final authority under the clause I thought that you know that broad interpretation of legislature was OK in part because Congress played a role in sort of determining the scope of state power and because it has the final say. I thought that the case was correctly decided. 

Rosen: [00:06:06] Thanks so much for that. Michael I sense from your common statement that you disagree on that point and think that the Arizona state legislature case was wrongly decided. Can you tell us why and why you think the court was wrong to ignore the plain meaning of the elections clause. 

Morley: [00:06:21] Absolutely. The Constitution has many clauses. There are many phrases rather like equal protection of the laws, due process of the laws, where they employ vague language that many people argue point to general principles point to abstract concepts that it's very easy to have debates about. The word legislature which appears in the Elections Clause or the elections clause specifically delegated authority not to the state as a whole but specifically to the legislature of the state is one of those terms in the Constitution that is very concrete that is very specific. The term legislature appears at least ten times throughout the Constitution and in every other single context where the word legislature appears it is clear from the context it is clear from the use that it is referring to what we would think of as the institutional state legislature; a multi member body of elected officials that periodically convenes to enact laws. And so the notion that legislature as used in the elections clause means something else than it means throughout the entire rest of the Constitution; means something different that it meant in every single state constitution that existed at the time the US Constitution was was ratified, I think is indefensible. 

Rosen: [00:07:42] Thank you so much for that. Well We the People listeners you now have a sense of the agreement and disagreement about the scope of the word legislature and elections clause. And I want you to dig in on the cases to learn more for yourself. Sarah let's now run through the major constitutional voting rights cases that are bubbling up in the lower courts and up to the Supreme Court and then ask our dream team of experts to give us the legal arguments on both sides. There are a series of controversies involving voter I.D. laws including in North Dakota and elsewhere. Tell us about some of the major ones and help us set up the legal issues there. 

Rosier: [00:08:18] Let's talk about North Dakota first. So this has gone back to 2016 when we thought a federal court case tackling the North Dakota voter I.D. law. Doug Brigham the governor of North Dakota at the time has had re-established and signed into law another state voter I.D. requirement and that now that's made its way up to the courts. The last we heard was from the Supreme Court. They stayed the law and that will go into effect in North Dakota. I'd love to hear from the panelists some some factoids on how rare the North Dakota law is, what this means for the voters. One thing of note is that in North Dakota it is the only state in which there is no formal formal voter registration system. So while they do have this voter I.D., there isn't like other states that you have to register by such and such date and prove your proof of residency through the voter registration. There's no sort of system in place for that. So this is kind of a different voter I.D. case. So Franita I'd love to hear from you first and then Michael about your thoughts on this North Dakota voter I.D.? 

Rosen: [00:09:27] Yes that would be great and Franita you might give us a sense of what the broad constitutional challenges to voter I.D. laws are and what the courts are holding on on both sides of the issue and then give us a sense of your thoughts of the North Dakota case. 

Tolson: [00:09:41] Of course. So voter I.D. laws have been challenged over the last few years on a number of grounds so litigants have challenged them on constitutional grounds as violations of the 14th the 15th Amendments the 14th Amendment right to vote that it burdens the right to vote and also the 15th Amendment in terms of the ban on racial discrimination in voting. They've also also been challenged under the Voting Rights Act. And I think litigants have had more success challenge in challenging these laws under that provision. The North Dakota law is interesting because and I mean interesting in a bad way, in that it requires residents to have a street address in North Dakota. And the problem with that is that there are quite a few Native Americans who live on reservations where there are no street addresses and the state was well aware of this when they pass this law. The Supreme Court allowed it to go into effect which is which is also unusual in the sense that the court generally does not permit laws that would change the election rules close to an election set to go into effect. And as you know we're only at this point eight days out from the midterms and I think we were maybe a little over a month out when the Supreme Court allowed it to go into effect. And so the effect of this law is to to disenfranchise a significant portion of Native Americans who don't have street addresses and because they also don't have the supplemental information that they will be able to use in order to to supplement theirI.D. that doesn't have a street address. They can come forward with for example a utility bill or a check issued by the federal state or local government and so on in order to further verify their identification. But a lot of them don't even have that. So the end result is that a significant percentage of Native Americans in North Dakota will be disenfranchised by this law. But one thing that gets ignored in this conversation is the fact that a significant portion of white people will also be disenfranchised because of this law. So one of the things that the district court found here was that almost sixty five thousand non-native voters don't possess qualified voterI.D. under the new law. So I know we typically think about voterI.D. and how it affects communities of color but it also affects white people in North Dakota as well and in other communities as well. And I think that's worth bringing into the conversation so that we have an understanding of how devastating voterI.D. can be in certain situations. One thing I also want to point out before I be quiet, is that keep in mind that in 2016 which is a presidential election year only three hundred fifty thousand people voted in North Dakota. So it's not like it's a state that has a substantial population where it could sort of absorb if twenty five hundred people are disenfranchised. Twenty five hundred people. Twenty five hundred Native Americans is a lot because it's a small population. Sixty five thousand non-Native Americans who are affected by thisI.D. is a lot in light of the fact that only 350000 people voted in 2016. So the effect of this law is actually pretty devastating. If you think about it in context. 

Rosen: [00:12:53] Thank you so much for all that. Michael, thirty three states have enacted voterI.D. laws of different kinds and in 2008 and the Crawford against Marion County Election Board case the U.S. Supreme Court upheld an Indiana law requiring voters to provide photographic identification. So tell us about the significance of the Crawford case, how it affects the North Carolina case and broadly what the legal debate is in these voterI.D. challenges that are bubbling up across the country for and against. 

Morley: [00:13:26] Franita's absolutely right. The main issues that that you tend to see focus on from a constitutional perspective around whether there was intentional racial discrimination in violation of the 15th Amendment whether there is a substantial burden in violation of the 14th Amendment Section two issues under the Voting Rights Act. Crawford in Crawford the Supreme Court rejected a facial challenge to a voter ID statute. Here the North Dakota challenge the constitutional aspect of it, was brought primarily as a facial challenge because the as the 8th Circuit held the individual plaintiffs actually had street addresses and so the Supreme Court or excuse me the 8th Circuit held they weren't in a position to bring an as applied challenge. So most of the controversy centered around whether this law was facially valid and specifically it centered around the requirement that theI.D. has to have a street address on it that the voter'sI.D. has to have a street address on it rather than simply a P.O. box. And I think that that's where the context matters greatly that we're talking about a state here that doesn't have voter registration. There are no centralized voter databases to let state officials know. Individual cities if they wish were allowed to set up their own, but on a statewide basis there is no database to even let officials know where people are supposed to be registered and what what their proper precinct is what slate of local officials there they're supposed to be they're supposed to be voting on and the state legislature at least according to the according to the 8th Circuit opinion considered alternatives like having a map at the at the polling place and having each voter try to find on the map exactly where they are and then trying to cross reference from that what ballot they should get and whether they're whether they're eligible to vote. And so particularly in the context of not having voter registration records what the what the 8th Circuit wound up suggesting and apparently the Supreme Court we at least to some extent appears to have agreed with that that there is a legitimate interest here in simply, hadn't even even putting aside even putting aside fraud concerns, just in managing the election accurately in managing the election efficiently having some government document. And I'll emphasize by the way it includes tribalI.D. that this isn't a situation where they're trying to engage in I.D. gerrymandering so to speak by by targeting the modes of identification or methods of identification that just certain groups are able to have and so even a tribalI.D. as long as it has the street address could be valid and apparently they simply by calling the county there's a 9 1 1 coordinator in each county voters who don't have street addresses can actually get them assigned to them ahead of time and they can they can get it they'll get a letter from the county just saying use this as your street address and they can they have a choice. They can either use that letter to get an I.D. with the street address on it or they can bring that letter along with some otherI.D. that otherwise wouldn't comply with the statute. And that would be and that will satisfy the law. And the other point that that that Franita raised right. This isn't a law targeting Native American voters for every Native American voter 13 non-native, according to the statistics that the that the 8th Circuit relied upon, 13 non-native voters are are impacted by the law and will have to go through the process of getting a street address so that election officials know where they're supposed to be voting from. So it particularly in this in this context I think that this voterI.D. law especially given that it at least appears that the street address requirement can be satisfied by making a phone call I think doesn't really pose serious constitutional questions. 

Rosen: [00:17:23] Many thanks for that. Sara because of voterI.D. challenges are so important can you give our listeners a sense of the situation on the ground how many voterI.D. challenges are pending How are courts tending to rule. And we've heard the arguments on both sides on the one hand avoiding racial discrimination both under the 14th and 15th amendment. On the other avoiding voter fraud and allowing efficient administration of elections. Are courts all over the place, or how are they tending to rule on these issues. 

Rosier: [00:17:52] So we saw quite a few 34 states now have voter ID requirements. Seventeen of those you are required to present photo ID while the other 17 there are different other accepted non photoI.D. requirements for for showingI.D. We're seeing we're seeing some cases this year in North Dakota being a very big one. It's attracted the attention of celebrities. I think there is a big concert out on one of the reserves last weekend where Mark Ruffalo and I think the Dave Matthews Band were there protesting this and encouraging the tribes to get out and vote. So we are seeing in those 34 states in 2016 there are the big ones. I think North Carolina Texas we saw the big cases there and I expect that the Supreme Court will in the next two sittings take up these as they make their way through the courts. But we're we're seeing some of the precedent kind of trickled down through. I think that's that's the context that we'll be tracking we have a page called voter ID laws by state where if you are unsure what is required for you as you go out to vote either through early voting this week or next Tuesday we have a full breakdown of what is required for for your state. You can get a good sense before you get caught up at the polls. 

Rosen: [00:19:19] Thanks for that. Franita moving forward. How many of these cases do you expect to succeed ultimately before the Supreme Court and how will the scope of voting in America be changed by the legal challenge or not? 

Tolson: [00:19:35] I don't expect that they'll be very many successes with respect to challenging voter ID laws. I think that the current lineup of the court will not be sympathetic to empirical evidence showing that these laws have a disproportionate impact on people of color. Also that there are people who are impacted who may not be a part of a minor minority group. I don't mean to suggest that you know if it if it affects more people then it means that the state didn't seek to single out a particular group. I think the fact that it affects more people is also problematic. But I don't think that the court will be sympathetic to that because they think that the state's interest in preventing voter fraud even if there is no empirical evidence that the law necessarily is designed to address fraud. This is about being deferential to the state in a way that it unfortunately has a negative impact on the scope of voting rights. 

Rosen: [00:20:35] Thank you for that. Michael, with the addition of Justice Kavanaugh to the court can you imagine any challenges to voterI.D. laws succeeding and if not what would the court's reasoning rejecting the challenges look like? 

Morley: [00:20:47] Absolutely under under current doctrine, if a voterI.D. law is adopted with a racially discriminatory purpose then that is a flat violation of the 15th Amendment and the court would strike it down and I certainly don't see any narrowing of 15th Amendment protections or or any change in the approach to that doctrine. And I also think that as more of these laws are enacted as there's more as there's more litigation we get to say we're going to see most of the litigation in my in my opinion most likely tending to focus on as applied challenges as well as Franita mentioned before a section two challenges under the under the VRA. But at least what what I would hope is that based on having a both a variety of statutes as well as variety of cases that shows the different ways that populations are affect are affected by voterI.D. laws that eventually we can move past kind of the knee jerk partisan reactions on both ends of the spectrum and start crafting laws that do have as some do and craft laws that have escape valves for somebody who is in a really unique situation or really unpredictable situation and try as they might there really is no realistic way for them to be able to to satisfy the ordinary requirements or get an ID will get the typical ID properly crafted. These, particularly if they're enacted well in advance of elections when there is enough time to comply particularly if they are somewhat liberal so to speak in terms of what counts as as voter as as valid forms of ID, they do not need to be tools of disenfranchisement they literally can be mechanisms for ensuring efficient elections more than more than anything else for reinvigorating public confidence in the electoral process and I hope we continue to see the evolution of these laws in order to try to address all of the competing interests at stake. 

Rosen: [00:22:56] Thank you so much for that. Sarah, let's turn next to the Florida Felon Disenfranchisement Law. There is an overview on Ballotepedia which answers the question "What would a Florida amendment change about the voting rights of convicted felons." The amendment was designed to automatically restore the right to vote for people with prior felony convictions except those convicted of murder or felony sexual offense. Tell us about Amendment 4 in Florida and how it would change the voting rights of convicted felons and what the legal challenges are. 

Rosier: [00:23:27] Yes this is fought on Amendment 4. Currently in Florida law, Florida is one a fourth states where convicted felons do not regain the right to vote until and unless a state officer or board restores an individual's voting voting rights. So they have to petition for their voting rights to be restored. We saw that this was part of the original Florida Constitution amended in 1968. That's active still today in 2018. We saw aU.S. District Court Judge, Mark Walker, rule that Florida's process for the restoration of voting ability for felons was unconstitutional stating that it did violate the First Amendment and the 14th Amendment. So we'll see what happens here. Governor Scott announced that he would appeal the ruling to the 11th Circuit and the 11th Circuit did concur with Governor Scott's request. So we're seeing the court amendment stands in the constitution. But this Florida Amendment 4 depending on what happens on November 6th could could be adjusted. 

Rosen: [00:24:33] Thanks for that great overview. Franita what are the constitutional arguments for and against felon disenfranchisement laws? 

Tolson: [00:24:41] So felon disenfranchise. The Supreme Court in a case Richardson vs. Ramirez found that a state could disenfranchise their felons consistent with section 1 of the 14th Amendment the Equal Protection Clause in part because Section 2 of the 14th Amendment has an exemption for felon disenfranchisement an exemption with respect to applying the penalty of reduced representation to those states that abridge the right to vote. So the the Supreme Court reasoned that because Section 2 exempted felon disenfranchisement from the reach of its provisions then therefore felon disenfranchisement did not violate Section 1 of the Fourteenth Amendment. So that's generally the legal argument for felon disenfranchisement laws. Of course the response is, there are actually many responses one can make. So one thing is that it has a, they're racially discriminatory both in purpose and effect. So around the turn of the century, I forget that this isn't 2000 so I guess that would be the turn of the last century. All right it's been a while. So let's just say that eighteen eighteen eighties eighteen nineties many states adopted felon disenfranchisement laws in order to prevent their black populations from being able to cast a ballot. And so the Supreme Court in a case called Hunter vs. Underwood actually struck down Alabama's Felon Disenfranchisement Law because it was enacted with racially discriminatory purpose because during their constitutional convention for their state constitution there were actually comments made that the law was adopted in order to further racial discrimination. But for most states you don't have those you know smoking gun statements where you have legislators making comments that they are trying to disenfranchise African-Americans. Now Florida's law did have the effect of disenfranchising a substantial portion of African-Americans within the state and also the process used to restore voting rights was very ad hoc and arbitrary. So individuals would have to go before the governor and two other cabinet officials usually the attorney general and I forget the third official in order to sort of make their case that their their voting rights could be restored. And the committee could deny you for any reason. So there was no systematic way to get your rights restored. Florida Amendment 4 seeks to change that by just doing automatic restoration which will probably have the effect of changing the political landscape of the state. So it is remarkable in that sense but but generally speaking felony disenfranchisement laws, unless you prove that they are enacted with discriminatory purpose as in the case of Alabama, is very difficult to lodge a constitutional challenge against them. There have been some successful cases under Section 2 of the Voting Rights Act because two court of appeals found that the laws had a racially discriminatory effect but generally speaking those cases are rare as well. 

Rosen: [00:27:42] Many thanks for that. Michael your thoughts on the constitutional challenges to disenfranchisement laws the likelihood of success and your thoughts about laws like Florida's Amendment Four which seeks to restore the voting rights of felons. 

Morley: [00:27:55] I agree with Franita that from a from a constitutional perspective the fact that Section 2 of the 14th Amendment expressly contemplates the possibility of states not extending the right to vote to people convicted of crimes makes most types of 14th Amendment challenges, forecloses the possibility really of any types of 14th Amendment challenges other than ones based on intentional racial discrimination that it given that the Constitution's plain text expressly contemplates the possibility of not extending the right to vote to to people convicted of crimes it's very difficult to try to say the very same amendment also makes it per say unconstitutional. So to the extent there is evidence of intentional racial animus behind felon disenfranchisement provisions then as with any provision of law it would be unconstitutional. One of the points that the 11th Circuit made when it upheld the constitutionality of Florida's provision was that Florida's felon disenfranchisement provision the court held was not motivated by any form of racial animus and one of the considerations that the court took into account is the fact that the Florida Constitution either authorized felon disenfranchisement or provided for felon disenfranchisement prior to the eighteen sixties before the state had even extended the franchise to African-Americans. The Court held it would literally be impossible for the felon for the predecessors of the felon disenfranchisement provision to have been motivated by any sort of racial animus because the franchise had already been limited on racially just racially discriminatory grounds. 

Rosen: [00:29:42] Thanks so much for that. Sarah, our next topic and it's a big one is gerrymandering. In the Gill v. Whitford case last year the Supreme Court refused to rule on the merits of whether partisan gerrymandering might violate the First Amendment to the constitution among other provisions. In light of Gill there's been a lot of lower court activities including in late August in North Carolina where the district court ruled that the state's gerrymandered districts were unconstitutional. Tell us about the state of the play in North Carolina, Michigan, Pennsylvania, and elsewhere and what are the pending challenges to gerrymandering? 

Rosier: [00:30:25] So I'll Michael for me to talk a little bit about those court cases but what we're looking at Ballotpedia specifically is what's going to happen in 2019 with redistricting. So if you allow me to give you give you a little bit of background on the different state by state redistricting procedures. So as of August 1 some of these court cases are being ruled. Congressional redistricting was the province of state legislatures in 37 states. So we saw in four states there were independent commissions which I think some of these court cases revolve around the legality of what the independent commission does, and who's in charge of appointing these commissioners. In two states, it fell to political commissions and gubernatorial appointments and things like that. And then the remaining seven states are some of the states that only have the one congressional district so that kind of nullifies the need for redistricting commission or the congressional level. So one thing we're noticing is you look at the National Democratic Redistricting Commission this political group that has come out I believe from Eric Holder in 2018, fundraising specifically for state legislative elections. We're so excited at Ballotpedia because these state legislative elections often don't get their deal. But this year they are and what we've been tracking are trifectas meaning one partisan party is in charge of both the governor's mansion and the full legislature. This is the state House and the state Senate. And what that could mean for these redistricting cases these gerrymandering cases in 2019 and beyond. So when you look at trifectas you see that 27 states are Republican trifectas. Again that that means that Republicans have a hold on the state governments in those 26 states. Only eight states are Democratic factors and 16 states are under divided government. If you remember I mentioned that in thirty seven states the state legislature controls us. So this is a big deal. Whether or not these states will still have this trifecta status heading out of 2018 because we could see some of these court cases being vacated if Democrats pull back some of these legislatures in these states if there is a quote unquote Blue Wave next week. But that's what we're focusing on right now is all right, so we have so many cases making their way up. We've seen a lot of them get ruled on in the past couple of years. But what happens if Democrats do have this blue wave. Some of these trifecta are broken up who will be in charge of this next census. It's going to be a very big issue. I'm based out of Maryland and the likelihood of Larry Hogan getting reelected is not great for Democrats because of how redistricting is set up in Maryland state elections really really matter this year because this next census and this next round of redistricting will happen in the next four years. So that's one thing we're tracking here but I'll turn it back over to the panelists for more on the court cases involved. 

Rosen: [00:33:45] Thanks very much for that. Thanks for giving us a breakdown of the states where one party controls both the governorship and the state legislature and Franita, now let's turn to the constitutional challenges. Describe what Gill and Whitford held didn't hold. And in light of Gill and Whitford, what are lower courts holding when confronted with challenges to partisan gerrymanders and are they likely to succeed or not? 

Tolson: [00:34:07] so Gill vs. Whitford, the court found at the plaintiffs didn't have standing to challenge the gerrymander in Wisconsin in part because they try to use evidence as of sort of statewide bias when trying to prove that they were individually harmed so they didn't have standing because they couldn't prove an injury based on evidence that they used. So the interesting thing about Gill though is for at least for me is less the majority opinion and more justice Kagan's opinion because what she does say is she tries to lay out a plan forward. Now I was one of the people who prior to the decision thought that the court would find that partisan gerrymandering claims were non-justiciable. I just you know and maybe I should be in the business of making predictions. I concede that. But I did think that they were going to find that they were non-justiciable. So it's really interested in that Justice Kagan lays out this this map for trying to bring this type of claim that tries to overcome some of the hurdles that the plaintiffs have with respect to the evidence that they wanted to that they tried to rely on in order to establish a claim. So she frames it as a First Amendment issue. So it sort of harkens back to Justice Kennedy's opinion in the case where he suggested that the First Amendment might be a better vehicle to challenge a partisan gerrymander but she does it in a different way. She outlines it as a form of vote delusion. That a plaintiff will be able to show that their right of association is impacted by the cracking and packing that goes on in any given gerrymandered point. And so what she's doing so even though the majority kicks it all standing, I think that litigants can sort of look to Justice Kagan's opinion as a a road map for litigating these cases going forward. 

Rosen: [00:35:49] Thanks so much for that. Michael your thought about the roadmap moving forward. Do you imagine that the court with Justice Kavanaugh might be sympathetic on the merits to the argument that Justice Kagan spelled out in her opinion or not. And how does that impact the cases that are bubbling up. 

Morley: [00:36:07] I would be surprised if the Supreme Court were to, or if a majority of the court, were to accept Justice Kagan's invitation. And in part I would trace this reluctance back to the chief justice. Any, or at least most forms of political gerrymandering claims, are typically are based on the premise that through expert testimony, in particular through political science testimony, courts can find as constitutional facts how voters are likely to vote in particular elections under different sets of circumstances years into the future and are and are and are able to predict the outcomes of a particular redistricting schemes with sufficient certainty that they can declare certain schemes unconstitutional or not. I don't remember if the if the chief justice referred to this as argle bargle or gobbledygook these these are highly technical terms that that that sometimes are used to interchange 

Rosen: [00:37:13] Argle bargle was Justice Scalia wasn't it? Gobbledygook was the Chief, absolutely. Yes absolutely. 

Morley: [00:37:20] And so the the chief has has expressed a skepticism through whichever way through or through which whichever technical term he employed is expressed the skepticism about relying on this type of of of social science data in this context. And I think that the 2016 election and in particular right for those people who were following the famous needle on election night I think the outcome for 2016 elections simply reaffirms the propriety of at least a degree of skepticism in the notion that courts are institutionally capable of sorting through this this type of testimony looking into the future. And I will also add by the way to a certain extent many types of political gerrymandering claims view voters, require courts to treat voters, as fungible interchangeable automatons that essentially no matter who the candidates are, no matter what the issues are, no matter how the districts are drawn, that they're going to reliably vote Democrat or Republican. And particularly in states that don't have party registration where you don't even have where you don't even have the hint so to speak of people who have chosen to register as Democrats who chosen to register as Republicans. And of course we know many of those people it's sometimes split their tickets don't necessarily vote vote straight party lines. I think it puts it puts courts in very difficult institutional positions that if that if courts do feel they have this power to to to to look at the future it somewhat calls into the question well why are we going through through this electoral process at all. I think if you look at first amendment case law if you look at the what the Supreme Court has said about the importance why political parties have a fundamental First Amendment right to pick their standard beare,r why candidates have and other politically involved entities have a First Amendment right to spend unlimited amounts of money on independent expenditures on political advertising on political communications. The notion is it's because all of this matters it's because many people's votes are going to hinge on who the candidates are what the issues are what what the debates are and a lot of that tends to get abstracted away in the context of most of these theories underlying political gerrymandering claims. 

Rosen: [00:39:43] Thank you so much for that. Sarah, we were at our last broad set of cases on the Ballotpedia election policy page, you identify redistricting laws, voterI.D. laws, and then there's a category for early voting and absentee voting laws, and you helpfully spell those out state by state. Tell us about the early voting and absentee voting laws and what some of the legal controversies arising from them are. 

Rosier: [00:40:10] Yes. So we have we just did a big project that we're doing in our daily morning newsletter just for each voter in each state outlining when they can go to the polls what their early voting looks like. Again there's some overlap here with some of the policy related to voterI.D. but we have seen the majority of the country has already been able to go to the polls if they want to. So this year seven states began their early voting periods in September. So we've already had now a month over a month of voters in Illinois, Minnesota, New Jersey, North Dakota, South Dakota, Vermont, and Wyoming have the ability to go to the polls starting in September. Another 24 states began in October and then there are 13 states who do not have any sort of early voting and those are spread across the country. It's not just one geographic area or another it's states like every state from New York to I think New Hampshire and down there a few Alabama and Mississippi. So we have seen it depending on where you are in the country. It definitely varies by your locality in your state but a good chunk of the country has already started voting. If they would want and of course there are the Washington, Oregon, and Colorado who they only vote via mail-in ballots. So those are things we track and if you have questions about how to vote in your state, please please head to But those are mainly controlled by, similarly to redistricting, those types of laws are mainly controlled by the legislature. So again 2018 could have a dramatic effect on what that early voting map looks like for 2020 and beyond. And that will likely be an issue as we start talking about presidential on November 7th. So that's that's one thing we'll be tracking over here. 

Rosen: [00:42:06] Michael there was some controversy over Ohio in the last cycle. Tell us what you can about the legal framework for early voting and absentee voting challenges. 

Morley: [00:42:16] The major challenge that I was aware of with regard to absentee voting was a procedural due process challenge with regard to signature match. That with with with regard to absentee voting, obviously the whole point of it is that you're not showing up your're you're you're doing it typically by mail and in order to make sure that ballots are being submitted by the voters who claim to be submitting them, the main safeguard that many states implement is signature match where you are after you after the voter you request or absentee ballot the ballot comes back you fill out the ballot selecting the candidates that you want you put the ballot back in the envelope you then have to sign the sign the envelope across the seal. And then when the ballots are submitted to election officials they compared the signature to the signature they have on record potentially even for many many years ago when you had first registered to vote or if you did it through Motor Voter when you got your got your driver's license and if if either someone forgets to sign the absentee ballot or if the signatures do not appear to match that that they did that if it looks like that the signature might not have been from the person who had filled out the registration form that there's that that there is some kind of concern about potential fraud that under these signature match laws the absentee ballot then does not get counted. And so in Georgia a court if a federal court entered a restraining order against enforcement of the signature match statute. And I know in many states and as the absentee ballot these these results are court or are coming in, there is concern about the application of the signature match laws because you put in depending on state law voters might not even necessarily know that they're that their vote isn't being counted that their vote has been rejected due to either the fact they forgot to sign the ballot or the signature didn't match. 

Rosen: [00:44:29] Thank you for that. Franita, I think we're gonna give the last word to you in light of the arguments that Michael hasdescribed for challenges to previous voterI.D. and signature law matches. What do you make of those arguments and do do you find them persuasive or not? 

Tolson: [00:44:45] So I get larger concerns about sort of making sure that people are who they are about matching the signatures. But I think especially you know all of this is happening in a context where there is broad disenfranchisement in Georgia right. So not only do we have the signature match which was challenged and stopped and then the secretary of state who's also running for governor reinstituted it but he also purged 300000 plus voters. So it really is a combination of things. Right. So the signature match combined with the voter purges really does have the effect of disenfranchising a substantial portion of voters in Georgia in a way that I think raises significant concerns. You know, it's a good thing that you know voting rights advocates are being vigilant about you know sort of watching what's going on there and consistently filing lawsuits because the secretary of state's willingness to reimpose signature match even after a federal court told him not to do it sort of shows his dedication to making sure that everyone cannot vote. 

Rosen: [00:45:47] Thank you so much for that. Well it's time to close but we the people listeners I want to end by encouraging you to continue to educate yourself about the constitutional arguments surrounding voting rights. Begin with Franita and Michael's wonderful joint explainer on the Elections Clause. Also read Michael's joint explainer on the twenty sixth amendment which changed the voting age to 18 as well as the provisions on the 15th Amendment joint explainers involving racial discrimination in voting. As always the best way to be an engaged citizen is to educate yourself about the Constitution. The interactive constitution is the best place to begin and we're so grateful to our partners at Ballotpedia for helping us sponsor this constitutional exploration of the right to vote. Sarah Rosier, Franita Tolson and Michael Morley. Thank you so much for joining. 

Morley: [00:46:40] Thank you very much. 

Rosier: [00:46:41] Thanks. 

Tolson: [00:46:41] Thank you. 

Rosen: [00:46:48] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to rate, review, and subscribe to We the People wherever you listen and tune in to our companion podcast, Live in America's Town Hall, we release those episodes on Tuesday and those are the audio for our great public programs here in Philadelphia and around the country which are so important in spreading constitutional light. If you'd like to keep up with the Constitution Center through your inbox please sign up for our email newsletter Constitution Weekly at It's a compilation of all of our content the videos the podcast selections from the interactive constitution - a veritable constitutional feast. Or as Tocqueville called it a gratuitous public school. So We the People listeners it would be great if you signed up and of course as you know I want you so much to sign up and become a member of the National Constitution Center to support our crucial work in increasing awareness and understanding of the Constitution among the American people. You’re such great ambassadors for us and I want you to join us as part of our common crusade. On behalf of the National Constitution Center. I'm Jeffrey Rosen. 

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Podcast: Key Congressional Elections in History

Jeffrey Rosen [00:00:06] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We the People the weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. The 2018 midterm elections are coming up and it's time to delve into constitutional history. What did the framers expect that congressional elections would look like? What have they looked like over the course of history and are there parallels to our current times in the past 200 years. Joining us to discuss the constitutional and historical dimensions of congressional midterm elections are two of America's leading experts on Congress congressional history and elections. Matthew Green is Professor of Politics at Catholic University and author of the speaker of the House a study of leadership as well as a forthcoming study of Newt Gingrich. Matthew thank you so much for joining.


Matthew Green [00:01:13] Thank you.


Rosen [00:01:15} And Thomas Mann is Senior Fellow in Governance Studies at the Brookings Institution. He has written extensively on Congress and his many books including the invaluable and best selling The Broken Branch How Congress Is Failing America and how to get it back on track coauthored with Norm Ornstein and many other works. Tom thank you so much for joining us.


Thomas Mann [00:01:35] My pleasure Jeff.


Rosen [00:01:38] Let's jump right in. Are there historical parallels to the current midterm elections and what did the framers expect that congressional election midterm elections would look like.


Green [00:01:51] Well it's probably a little early to say exactly what previous midterms are similar to the one that we are about to have since we don't know what the outcome will be. But in terms of public engagement in the election and the potential for a change in power in at least one chamber in Congress we certainly have seen that before in congressional history and in fact I would say it's one of the factors that distinguishes ordinary midterms you might say from ones that we would consider significant. So a change in party control. And also if there's a large swing in seats from one party to the other and have a lot of new members coming which could happen in this election. That is also something that we have seen before and often makes a midterm significant. You know what the founders intended isn't exactly what we have today for a number of reasons. One of which being that we now have popular elections for the House and Senate whereas initially Senators were appointed by the states by state legislatures. And so they were somewhat more immune in a way from the electoral tides that can influence the house. Then of course the House you have elections every two years. And part of the idea there is that they're closer to the people. And in that respect more directly connected to what voters would like based on you know in any given election where a senator serving for six years they have more time to legislate and focus on matters of policymaking.


Rosen [00:03:30] Thank you so much for that. Tom same opening question to you. Are there historic parallels to the midterm elections of 2018 and what did the framers expect from congressional midterm elections.


Mann [00:03:40] No obvious parallels but certainly some interesting midterm elections that we can discuss as Matt said the framers really have a House is the only body that would be directly elected by the public. The president was to be chosen by a electors. Who in turn were appointed by the states. And that explains the appointment of Senators as well. There also was no mention of political parties in the Constitution and if you look today we have coming up an election in which the framers would be aghast. And of course they talk constantly about that fear of a demagogue without the requisite Republican virtue merging in the system and tried to set up a structure of institutions with incentives that would prevent that. But right now we're facing a situation where we have the most demagogic like occupant of the White House in our in our history and the question of this midterm is is the is one of the checks the framers had in mind for protecting the system and the rule of law that is the election of a new Congress. Is that going to be up to the task? That's up for the American people.


Rosen [00:05:33] Thank you for that. Matt. Tom has made a provocative point. He said that the framers intended Congress to check demagogues. Do you agree with that point and let's go back to the 19th century you have identified a series of important 19th century elections including as we were talking before the show started 1826, 1854, 66, 74, 94. Give us a sense of how some of those important 19th century elections functioned and whether you agree with Tom or not that they were supposed to attract demagogues.


Green [00:06:05] Well I think Thomas has point and I would actually expand it to say that the founders intended the legislative branch in particular to check the executive branch period regardless of who the occupant was. And he's right that the founders did not envision parties and it's not in the Constitution. And so one of the concerns that many people have had is that with parties members of Congress think more like teams and less like an independent branch of the national government and so when the president is of the same party as the party that controls Congress there is a distinct lack of oversight. And this was not something that the Founders intended at all. So so I do think that that is a marked departure from what the founders intended. Now in terms of midterm elections I mentioned some of the things that I would say make them significant. And in addition to the change in party control the size of the freshman class. And then if it leads to some significant change in American politics or policymaking or the way Congress operates and we've seen that in the 19th century and some of the ones that I would identify as being significant because of one or more of those reasons would be the midterm election of 1826. This is when you have the decline of the existing party system and the rise of what would become the Jacksonian Democrats. And Andrew Jackson is elected president in 1828 but in 1826 you start to see members of Congress who are pro Jacksonian or proto Democrats I guess you could say. And so this midterm is one of those examples of one that indicates a significant change in party the party system or in presidential at the upcoming presidential election. Then you have a couple others I'll just mention briefly. The election of 1854 which is another example of a midterm which is preceding some significant national changes and this is one in which the Democrats lose control of the house. But a new party the No-nothing party gains a sizable number of seats there an anti Catholic anti immigrant party and you end up having a two month period where the House cannot pick their speaker because the house is so divided among different factions. And that is an early preview of what will come with the civil war. And then after the Civil War in 1874 there's a big election because Democrats retake the House for the first time since the 1850s and it's also at the same time you have election related race riots in Alabama. So you're seeing how in the south, Southern whites are and they've done it before and they're doing in this election, willing to use violence to suppress the black vote which ends up helping them solidify power in the south.


Rosen [00:08:59] Thank you very much for that. Tom your thoughts on some of the 19th century elections have flagged including 26 the rise of the Jacksonian Democrats 54 the rise of a no nothing 74 the Democrats retaking the House. What do they say. These 19th century elections about the fact that once parties did arise after the election of 1800 they came to serve a function in amalgamating function of the framers hadn't anticipated.


Mann [00:09:26] Indeed. I think Matt’s choices of elections are very good and what they what they tell us is a couple of things one it's a opportunity to for the public to weigh in on how the course of American politics and presidential leadership is is proceeding so over time they tended they tended to be referendums on presidents. The House in particular. And because of the fact that they blow up two years after a presidential victory they they almost always tend to be to a loss of seats in the Presidents party and one of the complaints of typically is gee you elect a parliamentary system and it's it's together and there might be a four or five year term and absent that Prime Minister's loss of support in his own party there's some element of stability there in our system. At various periods of time we've had one party elected into office and both the president the Congress and then two years later that unified party government gives way to a divided party. And And that's been  problematic in our history ever since. I think it's it's important to acknowledge that mid-term elections as Matt said both are indicators of what's going on in our politics and what new forces are are arising and certainly the election of 1826 and the development of a mass political party with Jackson and Martin Van Buren that were were absolutely critical but an election a couple of things to think about. One 1858. I mean this was this was critical. The old Whigs were dying a new Republican Party had started up. The faith in James Buchanan and the Democratic Party was was sinking and that election sort of set the stage for Abraham Lincoln's election two years hence forth and and the secession of the southern states. So it was it was immensely significant and then 1874 another election that that Matt identified was was a period in which the you know the grand ambitions of Lincoln then and and Grant and other other Republican Party leaders to deal with the problem of slavery and race in American politics. That election basically gave control to the Democrats who were against reconstruction and effectively ended up ended the Great Experiment following following the Civil War. So and then and then finally I just I mention the election of 1894 was was the featured the largest loss of seats by the president's party in American history well over a hundred closer to 125 seats lost in a in a house that was much smaller than it is is now and it really set the stage for a period of dominance by by the Republican Party after a very competitive period. So lots of passions in these elections. Party is a absolute significant factor. The other thing Jeff I just introduced is is the last point again one of the problem Matt is is once we had sort of if you will mass public elections for the for the president we have this problem that the electorate in presidential years is much different than the electorate in midterm years. It's usually a 20 percentage point decline in the midterm elections. Very different composition. And so the question is who speaks for America in the electoral cycle.


Rosen [00:14:25] Thank you very much for all of that and thank you for flagging the election of 1894 and Matt I'd like to ask you about that. As Tom said it was a landslide defeat for the Democrats 100 seats lost to the Republicans the largest swing in history. It was also the first time that a party completely lost control of both houses of Congress. And it marked the end of the third party system of the Civil War and the beginning of the Fourth Party System known as the Progressive Era and one of the causes of it was the tariff which our listeners know from my endless references to William Howard Taft his taking on the tariff on the issue of the tariff combined with the Panic of 1893 led to this election so what why was 1893 a realigning election and what defines a realigning election? What factors can help us identify whether an election is realigning or not?


Green [00:15:15] So there's a lot of debate in the Political Science World about realignment, realignment theory and how much evidence there is for it. I would say the traditional definition of a realigning election is one in which you have a durable shift in the voting behavior of large numbers of voting citizens. And that leads to a change in which party is more dominant nationally and that party remains dominant more or less for a fairly long time and so from any realignment realigning theories are theorists of realignment 1894 particularly 1896. The presidential election was realigning because as you said the Republicans established this dominant majority in Congress and also the the ability to win presidential elections fairly consistently. Is certainly true whether you would argue it's a realigning election or not, as Tom said, that 1894 election was a huge shift in seats. It a massive defeat for the Democratic Party and they never took them a long time to to recover. They did not gain control of either chamber until 1910 so it was a long time in the minority and that of course established the ability of the Republicans as we were talking about that concept. One of the reasons a midterm is significant is because of a durable shift in what follows with the Republicans having control of the House and Senate and the White House they were able to pursue a variety of policies that they couldn't in the period before when you have swinging control of Congress and also the White House


Rosen [00:17:03] thanks very much for that. So Tom let's enter the 20th century and the election of 1930 was significant it followed the stock market crash. The GOP was severely punished it was Herbert Hoover's first midterm and the Democrats got 52 seats in the House and six in the Senate although the GOP narrowly got control of both houses. So if that wasn't a realigning election what was the realigning election of the 30s and how would you define a realigning election?


Mann [00:17:32] Yes it's it's certainly the seeds of it began in in in 1930. In some ways you could begin to see some changes as far back as the 1928 election. What's significant is that you know because of deaths among some Republican members the Democrats had actually organized that house after the 1930 election and held it every Congress except for two in 46 and 52, until 1994. So it was the beginning of a permanent Democratic majority even in the Senate. That was a quarter century stretch of Democratic dominance in the Congress as well. So we have a long period of time in which Republicans became almost a permanent minority. So I'd say that 30 1930 is really important it shows you the importance of the state of the economy of course after the Great Depression and in Hoover's Hoover's approach to it. Franklin Roosevelt's success in putting together a coalition a new deal coalition. It was an odd coalition because of course it included Northern liberals including some free blacks as well as as white segregationists in the south. And politically legislatively during much of the period after Roosevelt's enormous legislative strides you you had Congress dominated by conservative coalition of Southern Democrats and in the Republican minority. So that was a long period of time that that really began in that 1930 election and it didn't end till much much later when Newt Gingrich succeeded in his effort to return Republicans to the majority in the House of Representatives. Now Republicans have had more success than congressional elections than Democrats.


Rosen [00:20:06] Many thanks for that. So Matt what are we to make of that long stretch between 1932 to 1994 when the Democrats held Congress and there were some significant midterms within them like 1958 where you had a weakened conservative coalition precipitating passage of the Civil Rights Act 1966 eroding democratic control and stemming the Great Society and in 74 the first post Watergate election. But was it just blips or how would you characterize that long stretch of Democratic dominance of Congress.


Green [00:20:41] Well first I just just to add to what Tom was saying about the 1930 election. I agree with him it's significant in no small part because it was the beginning of this long dominance of the Democratic Party in Congress and in the Senate until 1980 in the house until 1994. I think it also is a good example of how sometimes it's hard to know what a midterm might portend because in 1930 Democrats as Tom mentioned were able to organize Congress or at least the House. But the party itself wasn't yet I would argue fully FDR as party. There were Democrats who actually felt the way to get out of the Great Depression was to cut government spending because that was the conventional wisdom as opposed to the Keynesian economics that the party ended up embracing embracing later. So sometimes a midterm is very helpful to a party and maybe the beginning of their dominance but it's not yet clear exactly the circumstances under which their party will change or they'll become the dominant party. Now as far as that stretch from 1930/32 until 1980 in the Senate 1994 in the house. I do think there are significant midterms within that stretch and it would be a mistake to just say that nothing changed and nothing was important until the end. Take for example the midterm that I would point to as one would be that midterm of 1958 when the Democrats have a majority in the House and Senate. But it's a year in which a lot of new members are elected and new Democrats and the size of the majority that the Democrats have particularly the House grows and it actually establishes something of a floor for their for their for the number of seats they have. I think from 1957 until 1994 they always had at least 55 percent of the seats in the House for instance. So I think it was an important election in further establishing the Democratic Party's dominance before then it looks like it was a more competitive Congress between the Republicans and Democrats they'd swung back and forth in control as you mentioned 1946 in 1952 but that 1958 brought in these younger liberal more liberal Democrats who were there for a long time and also pursued a series of reforms in Congress that ultimately changed and changed the institution.


Rosen [00:23:04] Thank you so much for that. In a moment we the people will be back with more constitutional conversations after this brief message. Tom what do you have to say about all of those elections between 1930 and 32 and 1994 which ones would you call out as significant. And to what degree do they presage a preview of of the shift that would culminate in change control of the House in 94.


Mann [00:23:47] Many things as Matt said were going on. You were you were seeing really the birth of the modern Republican Party starting without gaining power immediately in elite politics and then Goldwater's candidacy and and building slowly from that but it took decades before Republicans succeeded in winning a majority in the house. The Democratic Party at the same time was changing as the changes in the broader society were were leading to big shifts in the south an area of the country that was a solid block to the Democrats and most responsible for their long term majority in the in the Congress. But after the the Voting Rights Act the Civil Rights Act you'd began to see a starting in the in the party. So regional realignment Democratic liberals who as Matt said really began forcefully in the 1958 election were working hard within Congress to keep the Southern Democrats who'd been there forever and chaired the committees from dominating the legislative agenda and the class of 1974 provided the extra numbers for a series of procedural changes. But this was you know this was then succeeded by the arrival of Newt Gingrich in Congress in 1978 and the beginning of a 16 year guerrilla war to try to put the Republicans back in the majority. Things were changing and in the country we saw differentiate ideological differentiation of the parties. There was more agreement within each party and greater distance between them. It became a more important identity and it took a while for for that to reach full blossom in the 21st century when one party has come to to really mean hyper-partisanship and tribalism and strong identities and the nationalization of politics which has changed in some respects the character of midterm elections and their uniqueness. Now we have a permanent campaign indeed a permanent war of senators are no less immune to the partisan forces them members of the House are and it it's come to the point where someone like Donald Trump. Unimaginable as a president when he first emerged, has has now sort of seized on opportunities presented by changes in the Republican Party I'd say since the Tea Party movement and and made it Donald Trump's party which has led to disaffection of Republican intellectual conservative intellectuals but not not of the sort of the voters the mass public in the party and put us now on a really really dangerous stage you know. There's there is Jeff I'd say a mismatch between between our Constitution and our party system. A highly polarized and detribalised system in which one party doesn't accept the legitimacy of the other and in campaigning is war and it doesn't matter what you say it matters how you feel. Among voters has put us in a really dangerous period in our in our politics. So it's been a fascinating evolution with midterms playing an important historical role in various of these certainly Obama's election was followed by the election in 2010 a wipe out for the for the Republican Party that has has put it in the you know in really a dominant dominant position on the question. And they have become basically enablers of Donald Trump. The question now becomes is is whether in 2018 we will see we will see a return to a divided party government or or whether we will have what is in many respects the minority party in terms of the popular vote for the president except in the House but that is really seized power and is maintaining and extending it.


Rosen [00:29:40] Thank you very much for that very provocative statement. Appropriate for the We The People podcast. Tom Mann has claimed that there is now mismatch between our Constitution and our party system. We are now in a highly tribalised system in which one party doesn't accept the legitimacy of the other. A hyper partisanship the Founders would not have recognized. Matt first of all and most importantly do you agree or not with that statement. And regardless of your answer then take us back to 94 because you've written you're writing a book about Newt Gingrich. To what degree was the election in 94 and the changes in Congress that followed from it important in contributing to this hyper partisanship and then maybe before we get to 2018. Take us up a little. From 94 to 2010 or so and describe why you think that this hyper partisanship accelerated.


Green [00:30:26] Yeah well first of all I agree completely with Tom and I think the the reasons for the origins are complicated. It's difficult to tease out all the different things that have contributed to the political environment we're in now but absolutely you see certainly in Congress and depending on how you measure it among voters as well very very strong if not hyper partisanship and a sense that the other party is not just a group of people that you disagree with but is actually a separate team that you simply want nothing to do with. And I'm happy to talk more about how we got to that place today. Going back to the election of 1994 was obviously highly significant because the Democrats lost control of the house for the first time in 40 years and also lost control of the Senate. I actually as it happened I was working on Capitol Hill when that election happened and I like to tell the story of how you that was the day after election you knew you could tell just by walking the halls of the House office buildings which party people belong to because they were either completely jubilant or looked like they were about to to you know someone in their family just passed away. So it was a tremendously huge election. You can't understate its influence on Congress. And obviously Gingrich who had been this minority party rabble rouser had by then become the minority whip and then became Speaker of the house after that election. And part of I think where how we got to where we are today was the fact that Gingrich was resented by so many Democrats for the kinds of tactics that he had used in the minority and and wanted to exact revenge to be perfectly honest and did not feel inclined to cooperate with Gingrich. And for the Republicans part they saw him as the as you know their messiah they had brought him control he had brought them control of the house. And there was a sense that 1984 was a mandate from voters. Both the House and the Senate to pursue more conservative policy. And so it was an environment that was ripe for a partisan conflict. Another thing to point out too Frances Lee at University of Maryland has pointed out that when you have a smaller margins between the two parties or a sense that you could easily win back control of your chamber in an election you have less incentive to cooperate with the other party and that can also feed partisan conflict. And so the Republicans won control of Congress in 1994 but their margins were very small. Many Democrats once they got over being in the minority saw this as every election had was of tremendous stakes and you could not give an inch inch to the other party and where Republicans became a minority party in 2006 they arguably adopted the same philosophy. So that way of approaching governance because you think you're that close to winning control of Congress makes every election midterms and presidential high stakes.


Rosen [00:33:38] Many thanks for that. Alright he question is set. And we want to use our remaining time to understand why this tribalism and hyper partisanship transformed Congress and whether the elections were symptoms or causes of the partisanship. Tom you've written, you're the world expert on this, and in The Broken Branch you describe a series of changes within Congress that have contributed and been caused by hyper partisanship ranging from declining institutional identity indifference to reform, disappearance of oversight and the decline of regular order and other factors so a very broad question but what are some of the main factors that you believe contributed to the rise of this hyper partisanship between the election of 94 and today?


Mann [00:34:31] Good question. And as Matt indicated it's not simple. It's very complicated. Figuring out did did the change begin in Congress among among party elites which in turn reshape the orientations and loyalties and identity of the voters? Or or did it emerge from from the public and and that was then reflected in in changes in Congress? Well what I'll say is this I'm a great believer in the importance of not just elected officials but but party activists and officials and central interest group leaders who work hard for years to try to build coalitions that will sustain, produce and sustain majorities in legislatures and in winning the presidency and gubernatorial seats. So these efforts were have been under way for many years. If I had to single one thing out it would be race. When when when support among African Americans was shared by the two parties it tended to remove one of the historically important sources of conflict in American politics. But following the the if you will the Second Reconstruction and the Voting Rights Act then Civil Rights Act then and mobilization of blacks the the party sorted this question and then other issues having having to do with abortion and religion ended up being important and it served coalition in each party was was developed. There was more agreement in the parties therefore they were willing members in Congress willing to delegate power to their leaders so that they could deliver and win legislative victories which they hoped would help subsequent electoral victories. So it's a combination that Newt Gingrich was uniquely important but it wasn't him he sees some opportunities he was in in some ways very hard nosed. It was it was about power and and it was about destroying the enemy which then which became the Democrats. Gingrich who began as a Rockefeller moderate Republican saw where the opportunity was and and he took it. Right now Jeff the problem is that we don't have the overlapping interests that the framers counted that a large republic would produce. That is we may disagree on this but we agree on that. And when you have the possibility of agreement across parties then it's you have different procedures within the institution and you have a market for bargaining, negotiation, and compromise. But when the major interests identify with one or the other parties then you strengthen the importance of party in the electorate and that then appears in in Congress and in the policymaking process which in turn acts to further polarize the public. And that's the cycle we've been on in in recent in recent years. And and as I've said I can't help but think if the if the framers were here today they'd say “Oh my God this system isn't well suited to to manage the kind of tribal identities and loyalties.” I mean there there was news recently of a pipe bombs being sent to former presidents. And it's it's they have outbreaks of violence. There's a perception now of minority rule two out of five presidential elections that have seen the victor because of a majority in the Electoral College actually losing the popular vote. And and of course that the apportionment of the Senate two per state means that a relatively small proportion certainly a minority of the public living in states have approved and can approve legislation in the Senate. So we're we're really coming up I think against the crisis that it's all occurring at a time of the rise of populism. Initially with Hugo Chavez on the left now overwhelmingly on the right end and we're having it here in America and outbreaks of xenophobia and racism and it's identity politics and it's ugly. And Congress is not doing its acting like a parliamentary body. And in many respects and it's not at all doing the kind of work refining of the public views that Madison had in mind.


Rosen [00:40:49] Many thanks for all of those illuminating thoughts. Matt I'm so eager for your analysis of how we have risen to a state of tribalism that as Tom says the framers would have abhorred. In 1960 there was a 50 percent overlap between the most conservative Democrat and most liberal Republican. Today there is no overlap. We are more polarized according to some scholars than at any time since the end of the civil war. And there is less of the aggregation of interests that the parties serve for much of the 19th and 20th century. Tom has identified a series of factors including racial self sorting ideological self sorting. What other factors would you and and tell us also what do you think about geographic self-sorting and its relevance to this puzzle?


Green [00:41:35] So Thomas I agree with Tom completely about the self sorting that's going on with interests. The role of race is a very important explanation as well and I think part of the another factor. And I think in these these all sort of interact with each other this idea that the parties do need to all agree on one thing and disagree with the other party on those things. And I don't know if it's you know our party leaders and members of Congress who did this are voters. It was one of the things actually that Gingrich wanted to do from the get go is he was he felt that you couldn't win elections as a party unless you had clear distinct differences from the other party. And this was in effect telling moderates in his party you can be moderate, but we all have to agree on the same thing in terms of the national agenda. Whether that is responsible or or others that's certainly what you see nationally in other parties making clear distinct differences. And that means that if I agree with you on one thing but disagree with you on another, where do I fit in that I have to pick a side, you have to pick a side of that. That certainly lends itself to increased polarization and conflict. And as Tom mentioned it can it can actually become violent. I think communication, methods of communication and gathering and the way we receive information citizens is also very importan. So that you know 15 20 years ago everyone was reading from the same general sources and watching the same sources on television. But now we know when I'm in a classroom and teaching I don't know where my students are getting their information. They may be getting it from Web sites of like you know from newspapers like The New York Times or The Wall Street Journal or they could be reading blogs that simply tell them what they already want to hear. And that would further reinforce this polarization that happens in the public. And of course you have to be sure that the information you're gathering is accurate and it isn't always the case that it is. In terms of, you mentioned the geographic silo or sort of geographic sorting that's going on, or as it's been called The Big Sort, this is also contributing to having polarization particularly in the House of Representatives because members are elected from individual districts that are drawn from states. And so if folks have one political persuasion prefer to live say in cities and those of the opposite prefer to live in suburbs or in rural areas then when districts are drawn for members of the House of Representatives then you may end up with districts that have mostly people of one party of mostly people of the other. You couple that with gerrymandering—districts that are drawn by states as legislatures to get a certain outcome and then you end up with a situation where more members of Congress are worried about losing a primary than they are losing a general election. And so they are concerned about being out conservatived or out liberaled and therefore they themselves move further to the left or right. And that exacerbates the polarization that you see in Congress. So I think all of these factors are contributing to the situation that we're in today and I would just note in terms of historical parallels. Some mentioned the civil war. I would also mention the late 19th century where we also had periods of presidents getting elected with a minority vote as in 1876 and 1888. So a similar situation where you have two straight two parties struggling with each other fighting with each other and no clear majority of the country in favor of one party or the other.


Rosen [00:45:27] Many thanks for that. All right now we've heard a fine and helpful discussion of some of the causes of polarization. From race, ideological, geographic, and virtual self sorting. And the coupling institutional changes. Tom what does all this tell us about the midterm elections of 2018? Are we now in a new situation where the kind of wave elections which required a loss of at least 30 seats—in the past there have been nine such wave elections since 1932—are less likely or more likely because of polarization? Are their 19th century analogues at similarly polarized times or are we in new territory?


Mann [00:46:10] That is the question of the day. The swings have have tended to be smaller in part because more of the districts in the House and more of the states are lopsided in their partisan identity as you said. And therefore even a swing of say 10 percent of the electorate can't produce anything like the election of 1874 or going back to periods around the New Deal and even under Truman. So yes the swings tend to be smaller the playing field is reduced. It's also the case that we now have party line voting that that's almost perfect that is perfect in the sense of almost complete unity. We’ll get above 90 percent maybe approaching you know 92 93 94 percent of Democrats voting for Democratic candidates for Congress and similarly for for Republicans. It's true there are a lot of independents but most of those independents lean toward one of the parties and support the party. There are pure genuine swing voters and those who exist tend to be the least informed without attachments that would lead to the gathering of information. And so what you have now is a is a struggle for the playing field in the Senate is especially small this year because there's a lopsided array of Republicans only nine seats up compared to 25 Democratic seats and many of those Democratic seats are in red states or at least in states that Trump Carried. So you have now an enormous focus on national fundraising effort under way trying to affect the balance of power is as Matt said referencing Frances Lee. There may be more safe seats in the House and the Senate. But the national competition for controllers is intense. The margins are very narrow. And so you have money moving around the country targeted to those particular states an enormous effort to ride or hold back a wave. So that's that's part of the structure of our politics but it's been made more significant just because of the rise of Donald Trump. He didn't come out of nowhere, he’s similar to would-be autocrats in other countries around the world and he he rode on some of the grievances that the public had, and that and that Republicans encouraged during their majority in Congress. But it's it's it's a little nerve wracking the stakes are higher than the election would normally be even under this intense polarization. If Trump were a more conventional president if he if he had a little more respect for the truth and and it you could you could imagine a healthy competition and a potential swing or not that would have significant policy consequences. But the legitimacy of the democratic system would still be alive. I mean the worry now is is is could we even inadvertently slip into a much more autocratic system where the rule of law is respected much less where where the passions are strong where where violence breaks out. It's it's it's a very unnerving time. That's why prominent Republican intellectuals like Max Boot and George Will and others are say “hey this is this is a crisis of democracy. Vote Democratic it only to elect a chamber of a chamber of the house that provides some some check on a demagogue who's now occupying the White House. Because his party the Republican Party has demonstrated where their interests lie elsewhere.” So it makes for a doubly important midterm election.


Rosen [00:51:17] Thank you so much for that. Matt last word to you given the increase in tribalisation and polarization is the election of 2018 sui generous or are there historic analogues. And do you agree or disagree with Tom's thoughts about the significance of the president and how can we put the 2018 elections in historic perspective?


Green [00:51:42] So there is a way in which the 2018 elections—it obviously depends what happens if as many prognosticators have argued, the minority party the Democrats will do well in the House if not the Senate maybe even take control of the house—there's a you know on one level this is just a kind of standard model of midterms which I think Tom mentioned before which is a referendum on the party in power. And we have seen that we saw that in 2010 we saw it in 1994 2006 that the public is unhappy with the party in power. They vote for the other party and that party wins control of the House or in some cases and or in some cases the Senate. I think in this upcoming election what's one of the most remarkable things about it is that there is a gap between people's general partisan leaning in this election or satisfaction and the State of the economy the economy is actually doing quite well. And yet you see far more Republicans in danger of losing this election than you would expect. And this could mean that the 2018 midterms are a much greater referendum on the president than one would normally expect given the state of the economy. And if that's the case then I think it does suggest some of the things that Tom was talking about that there's a lot of folks on the left who are very upset. President Trump he's in some ways a very very polarizing figure a controversial figure certainly gets a lot of more media coverage I think than past presidents have in this stage in this stage in their presidency. And if that's the case this could be a good example of a kind of hyper referendum on the president. I think also there's something bigger going on here which is that both parties are facing some significant pressures from different factions that are in danger of sort of pulling them into different directions. So the Republican Party for instance, you know Donald Trump is not your typical Republican by any stretch of the imagination and he's advocated for policies that some Republicans like and others do not. Democratic Party we saw in the last presidential election being pulled off in a more progressive direction and the sort of the Bernie Sanders faction or wing of the party if you will. And this is very important because if we have a system in which political parties are dominant despite what the Founding Fathers wanted but they are unable to maintain a degree of unity then we're in a particular moment of flux and uncertainty and this 2018 mid-term that we're facing could further exacerbate that. It could pull the parties in different directions. It's just very hard to predict. And so that's what makes this an exciting time. For some it's an unnerving time. But I do think that the there's good reasons to expect that the 2018 midterms for these and other reasons will go down in history as one of the more significant in in many decades.


Rosen [00:54:46] Thank you so much Matthew Greene and Tom Mann for an illuminating, historically deep, and fascinating discussion of the history and constitutional significance of midterm elections. Tom, Matt thank you so much for joining


Green [00:55:00] Thank you Jeff.


Mann [00:55:03] Thanks Jeff. I really enjoyed it.


Rosen [00:55:10] Today's show was engineered by Greg Shekhawat and produced by Jackie McDermott and Scott Klomp research was provided by Lana Ulrich, Madison Poulter and Jackie McDermott. We the People listeners I'm delighted that we relaunched our companion podcasts Live at America's Town Hall. This is the feed where we play the audio from all of our incredible townhall programs here in Philadelphia and around the country with authors like Michael Beschloss and Doris Kearns Goodwin, judges, scholars, debates. It's a veritable constitutional feast. I hope you’ll check it out and enjoy listening to them as much as we are honored to produce them. That's available on Apple podcasts, Google, or wherever else you listen. And remember We the People listeners, National Constitution Center is a private nonprofit receiving little government support. Our programming and educational light is only possible to spread because of the engagement and passion and commitment of people like you around the country committed to life-long learning there's nothing more fulfilling in life as an adult than continuing to learn and grow. And We the People is a part of that opportunity for lifelong constitutional education. So please consider becoming a member of the National Constitution Center to support our work, including this podcast. Visit to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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Podcast: Is There a Supreme Court Legitimacy Crisis?

Jeffrey Rosen: [00:00:06] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. In the aftermath of the confirmation of Justice Brett Kavanaugh, voices on the right and the left are asking an important question, Is there a legitimacy crisis at the U.S. Supreme Court? And if so what can we do about it? Justices Kagan and Sotomayor recently talked about the importance of the Supreme Court maintaining its nonpartisan legitimacy and Chief Justice John Roberts added his voice to that important debate, emphasizing the crucial importance that Americans maintain their faith in the Court as an impartial arbiter of the rule of law. Joining us to discuss whether there is a legitimacy crisis; if so, what's causing it; if so, what can we do about it, are two of America's leading scholars of the Constitution and we're so honored to have Jenn Mascott is assistant professor at George Mason's Antonin Scalia Law School. Professor Mascott clerked for then Judge Kavanaugh on the D.C. Circuit and testified on his behalf. She is a frequent commentator on constitutional issues and previously clerked for Justice Clarence Thomas. Professor Mascott thank you so much for joining us. 

Jennifer Mascott: [00:01:31] Thank you for having me. 

Rosen: [00:01:32] Melissa Murray is professor at NYU Law School. She specializes in constitutional and family law and reproductive rights. She testified against Justice Kavanaugh at his confirmation hearings and previously clerked for Justice Sonia Sotomayor, then of the 2nd Circuit, and has served as interim dean at the University of California Berkeley School of Law. Melissa It was wonderful to see you in Berkeley last year and it is great to have you on the show. 

Melissa Murray: [00:01:58] Thanks so much for having me. 

Rosen: [00:02:00] OK. Let's jump right in with the central question. Is there a legitimacy crisis at the Supreme Court? in the 1980s majorities routinely reported they had a great deal or quite a lot of confidence in the Court. The latest Gallup polls from earlier this year found that only 37 percent had a great deal or a lot of confidence. Jenn is there a legitimacy crisis at the Supreme Court? 

Mascott: [00:02:27] I do not think there's a legitimacy crisis. No. I mean as you know the Supreme Court is not driven by poll numbers. It shouldn't be driven by poll numbers. It's a branch that's designed to be insulated to a degree from politics, from the political branches. And you know, the Supreme Court this term began business October 1st and Justice Kavanaugh was actually on the bench to be part of the cases heard the second week. And you know the Court- the Courtroom was was full. I was there one of the days during oral arguments when the litigants proceeded as normal. The justices all seemed to get along fine on the bench. I believe the day previously when Justice Kavanaugh sat for the first time the Chief Justice welcomed him on, Justice Kagan who sits next to him had some conversation with Justice Kavanaugh and he jumped right in asking questions of parties. And I think one of the things you know you look with the Supreme Court being insulated from politics is- is it an independent body? Is the federal judiciary deciding cases just according to the law rather than political preferences? All the members of the Court have expressed commitment to independence in the judiciary. Then Judge Kavanaugh expressed a lot of adherence and priority on that principle during his confirmation hearings and then over the course of his 12 years on the D.C. Circuit. And interestingly during the oral arguments that I happened to see on Wednesday of last week, the second week that the Court was in session, from questioning it appeared that in at least one of the cases Justice Gorsuch and Justice Kavanaugh from their questions may not necessarily already even be seeing that one particular case the same way. Both appointed by the same president but they're on the Court independently coming at cases perhaps from a different perspective even though they were appointed by you know the one in the same president. 

Rosen: [00:04:18] Thank you so much for that. Melissa you heard Jenn's introductory thoughts that there is not in fact a legitimacy crisis when it comes to the Court. Do you agree or not? 

Murray: [00:04:27] Well I don't think I would say in such unqualified terms that there is no legitimacy crisis. I agree that the Supreme Court at this moment is not necessarily an illegitimate institution. But I think the last month has certainly been a bruising one from the- for the Courts. And I think we'd be hard pressed to say that the Court hasn't been affected by what has happened during the confirmation process. As Professor Mascot says, the Court unlike the other branches is insulated from the political process. It's supposed to be a neutral arbiter of the law. And I think for the public at least that question is an open question now after what the public has seen in the course of the confirmation hearings. I mean the confirmation hearings are always somewhat partisan with a lot of political posturing from the senators but usually the nominee sort of stays the course, maintains a kind of neutral temperament and discusses his or her judicial record and we can make some prognostications about what they might do on the Court. But I don't think we've ever seen a situation where the nominee, now the Justice ever inveighed in such a partisan way about the confirmation process, about claims made against him and invoked a sort of left wing conspiracy against him, and I think those kinds of questions about whether or not this newest member of the Court has been infected by a kind of partisan politics will certainly raise questions for the American public about whether the Supreme Court continues to be a neutral body and again do I think this is a kind of legitimacy crisis like we've seen- like after 1954 when the Court got far ahead of some parts of the country on the question of integration and desegregation? Maybe not. But I think it's something that we will have to look at over time and I think it's something that the Chief Justice who is perhaps the most ardent steward of the Court's reputation and legitimacy will certainly be mindful of as they go forward and make decisions on some of the more controversial cases this term and in upcoming terms. 

Rosen: [00:06:33] Thank you so much. So Jenn, Melissa as you've heard suggested that Justice Kavanaugh's comments in his confirmation hearings might lead people to see the Court in partisan terms. I know you want to respond to that and then maybe say more broadly, has the increasing partisan tone of confirmation hearings culminating in Justice Kavanaugh possibly raised a legitimacy crisis at the Court and are things worse than they were more recently? 

Mascott: [00:07:05] So thank you for that question. As far as justice Kavanagh during his confirmation hearings, I mean during the during the bulk of the days of the hearings he was addressing you know legal principles and talking about his commitment to an independent judiciary. Professor Murray was referencing the final days of the hearing when Justice Kavanaugh was responding to personal allegations and I think I should first say, yes I think the best way to continue sustaining the Court's legitimacy and for the American people and the legal system to experience Justice Kavanagh's is of course to see the approach that he takes now that he is on the Supreme Court, and how is he going to be deciding cases, how is he going to be talking to litigants when they come into the Courtroom. We've already seen that in the first week of arguments in which he's participated. You know he struck a very similar style it seemed to me already in his first arguments that the Supreme Court as he had done at the D.C. Circuit - being very well prepared, having insightful questions, trying to throw challenging questions to both sides. About the final day of the hearing I mean I think one observation that a lot of folks have made is, that was a unique situation where in a sense it was almost as though then Judge Kavanaugh was not really any longer operating in a role as a judge. He was a person facing allegations that were that were put forward on a public stage. And so I don't think the way that one has to strongly respond to dispel allegations that one believes are false is necessarily indicative of how that individual approaches a legal role or how that person's going to be as a juris,t when they're having to speak to very challenging circumstances in a personal capacity. About the question about the Court in general and confirmation proceedings, I do agree that you know confirmation proceedings have been challenging. I mean you know they've always- they've been televised for quite some time this particular time you know there were a lot of protests, a lot of contentious things that happened and arose. And I think most people would agree that you know moving forward it would be great to have more of the focus of the confirmation hearings be on the role of the Court, the role of the legal system, the philosophy of the nominee sitting before the senators. And- but I don't think that the fact that there was a particular type of you know protest or controversies that arose this time necessarily needs to for all time undermine the public's view of the Court. I mean my sense is from how sometimes this has played out in the past and there have been contentious confirmation proceedings in the past is that you know the public is very- reacts very strongly at the time and gets very involved in the confirmation hearings and then the new justice sits on the Court and tries to independently and fairly apply the law and the country is able to move on and appreciate that individual's role in the Court and the Court's role as an institution and that the most important thing above all is that the Court as an institution continue to try to sit as an independent body and apply the law in the way that they believe is right. 

Rosen: [00:10:11] Thank you very much for that. Melissa, Jenn gives us an optimistic scenario that Justice Kavanaugh was facing unique circumstances, that he will operate as a justice for all the people as he said in his swearing in ceremony, and that the public eventually will come to accept the Court's rulings as non-partisan as in the past. Do you agree that if Justice Kavanaugh behaves that way that people may change their views or do you think something structurally is changed? And would that be just the confirmation hearings or the possibility of lots of 5 to 4 decisions on the Court that might change the way it's perceived in the public eye? 

Murray: [00:10:48] So again I don't want to say that this is an unqualified legitimacy crisis but I don't think I'm as optimistic as Professor Mascott, so you know perhaps I am the fly in the punchbowl at this party. 

Rosen: [00:11:01] And what a punch bowl it is. 

Murray: [00:11:03] Well again I think it's true thathe Courtrt has seen many bruising confirmation battles and you know public perception othe Courtrt dips and rises, it waxes and wanes, and that's pretty standard. But I think we haven't really reckoned with how unprecedented this particular confirmation battle was and I don't think I've seen in my lifetime a Supreme Court nominee writing an op ed that appeared in The Wall Street Journal defending his performance before the Senate Judiciary Committee. I don't think I've ever seen a nominee inveigh about um the Clintons and sort of speak to a broad conspiracy against them and I recognize that the circumstances were incredibly challenging. You know I can't imagine what it would be like to face those kinds of allegations and then have to answer for them in a public forum. But the fact remains it was a job interview where one of the questions was whether or not you have the temperament to be on the nation's highest court and to receive a kind of public trust- to be vested with that public trust. And I just think that Justice Kavanaugh's performance would certainly leave some people, future litigants with some questions about whether or not he could be neutral as to their specific concerns. Imagine being a woman bringing a claim that had something to do with sexual harassment or sexual misconduct. Would you believe that given that particular performance at the last part of the hearings that you would get a fair shake from Justice Kavanaugh? Maybe you would. Maybe his record as a jurist othe Courtrt would alleviate your concerns. But I think for many you'd probably wonder. What if we had a decision like Bush v. Gore that again came beforthe Courtrt and the Court was in a position to essentially decide the course of an election. Would we feel comforted in knowing that this was a decision made neutrally or would we think, given what we have seen over the last month, that this was instead a very partisan decision? Will the impact of future 5-4 decisions and I think there will be a lot of 5-4 decision going forward, will we feel that these reflect studied and considered review of Supreme Court text or Constitutional text or will we just think that the Court is simply divided along predictable party lines? I think those are the questions going forward because in fact this is something we have never seen before. 

[00:13:38] Thank you so much for that. Jenn, two questions I guess: the first, knowing Justice Kavanaugh as you do, do you believe he would be embittered by the confirmation hearings, or do you think he will act as he said in his swearing in ceremony as a justice for all the people who will put all the controversy behind him and really strive to judge neutrally and you know and- of course we're all eager for your thoughts because you do know him well. And then the second question is Chief Justice Roberts is concerned about 5 to 4 decisions along partisan lines. He's said so ever since he was confirmed and he's signaled that recently. Will Justice Kavanaugh also be concerned about that appearance and reality and will concerns about the Court's legitimacy inform his votes on the Court? 

Mascott: [00:14:25] So those are great questions and thank you. So, knowing Justice Kavanaugh I mean my sense- and you mentioned I clerked for him. I clerked for him 12 years ago during his first year on that on the D.C. Circuit and my sense from that year and then continuing to have him as a mentor since then is that he will really strive to move past the confirmation hearings. I do not think of him as a person who would be embittered. He's talked publicly a lot about trying to bring a sense of optimism and does have a long history in Washington whether it be you know in the White House before his time on the Court or during other situations in the past that maybe some would've thought of as more politically charged and I think was able still to emerge from those and be an impartial jurist on the on the D.C. Circuit. And so if I if I had to guess actually I would say if anything he might be overly attentive or particularly attentive to trying to dispel any notions that he's going to be a partisan on the Court, particularly during the first couple years. I mean I think in an ideal situation you would want to have you know justices, regardless of what experience they've had prior to coming to the Court, in every case be doing what they believe to be right according to the law. And I do think Justice Kavanaugh will do that. But my sense is from him because I think he does actually share the Chief Justice's concern that the Court not be seen as a political institution that he will be try to be particularly attentive to that. I don't know how that will play itself out whether that- I would think or hope that wouldn't necessarily impact a voting decision but perhaps justices that are trying to keep in mind views of the Court's legitimacy perhaps may do certain things in terms of explaining the basis on which the Court is ruling or trying to reach across the ideological spectrum and come up with commonalities in an approach to a case. Perhaps those will be strategies that different justices will use. About the 5 to 4 decisions: I also wanted to quickly mention that Post article, I believe, that came out this past summer you know suggested that while the 5 to 4 decisions often get the most play that, since 2000 I think, the statistic that I read is that actually only 19 percent of the decisions have been 5-4 and that more than half of the decisions were decided by a majority of seven or more justices. And so I do think that the Court has a strong history of having a lot of unanimous decisions and decisions that have more lopsided majorities and that we can expect to continue to see that over the years. And then there was also a recent opinion piece by Senator Whitehouse and Senator Hirono and one additional senator maybe just yesterday or online just yesterday talking about five to four decisions and mentioned that I think seventy nine of them had been by what they said was a was a 5 to 4 majority aligned by political party but because over the course of time they were examining there were more than 200 five to four decisions, there were quite a few, well more than half of those decisions therefore that must have been decided by a 5 to 4 majority that actually did not line up based on which political party appointed the justices, so sometimes even in those 5-4 decisions it's not the ominous all Republican or all Democrat appointed justices lining up. Sometimes even in those you don't have a straight party split. And I think we can expect to see the Court moving forward trying to reach decisions according to the law and then that means a lot and vast majority of cases that are not necessarily dealing with politically charged issues, there's going to be a bipartisan majority reaching decisions. 

Rosen: [00:18:07] Thank you very much for that. Thanks also for calling out this really interesting piece which I just googled by, as you say, Senators Hirono, Whitehouse and also Richard Blumenthal. And it was in Slate. It's: History Will Judge John Roberts if his Court's Steady Stream of 5 to 4 pro-GOP Decisions Continues and the three senators make the argument, you can imagine from the headlines, although as you note, the 5 to 4 story is more complicated. So Melissa, Democrats are obviously concerned, as these three senators express, about the idea that important decisions would be decided by these 5 to 4 votes. Chief Justice Roberts is as well. I have this amazing interview with him right when he was confirmed where he said that he thought it was bad for the Court and bad for the country to issue decisions that appeared to be 5 to 4 on partisan lines and more recently he's reaffirmed his determination to try to avoid that. What is John Roberts' power to avoid that? Melissa, do you think that he can obviate this fear among Democrats that the Court is a partisan institution and are you optimistic that he'll succeed? 

Murray: [00:19:15] Well so many have said that Justice Chief Justice Roberts will sort of take on Justice Kennedy's role as the swing justice and sort of moderate the Court's lurch to the right or shifts in its jurisprudence, and I think that Chief Justice Roberts will certainly be the member of the Court who I think is most attentive to the question of the Court's legitimacy and who has been most attentive to it. But Chief Justice Roberts is very clear where his sort of ideological jurisprudential leanings are and he isn't a swing justice in the mold of Justice Kennedy, who was you know less predictable in his thinking and the way he might come out on particular cases. He's more to the right. So that means the center of the Court is going to be more to the right. Will he exercise some of his own discretion as Chief Justice when there are these sort of 5-4 splits on cases that are really blockbuster cases? I mean as for Professor Mascott said, a lot of cases are not 5-4 along predictable party lines but the blockbuster cases typically are and those are the ones that stay in the public's mind and perhaps are most emblematic of the Court's work for the lay person, and I think in those kinds of cases the kind of thing that someone like Chief Justice Roberts might be able to do to sort of moderate and sort of maintain the public perception of the Court as a neutral body is maybe to decide some of these cases more narrowly, more incremental shifts as opposed to lurches to the right. And you know this is something that I think is in his power to do just because he can determine who he assigns decisions to, whether he is the person in the majority who writes the decision as he often may be. Those are things I think are within his control. But the fact that he is the center of the Court now, the swing justice, I think has a lot of implications for just how general practice at the Court is going to be. You know with Justice Kennedy as that swing justice for so long, you really had litigants moderating their own positions in order to capture Justice Kennedy in that crucial fifth vote. I think now that the center of the Court is more to the right we may see less of that moderating impulse at the litigation stages, in the arguments that they make at the lower courts, and I think we'll see different kinds of arguments being made at the Court itself. There won't necessarily be this impulse to be more temperate, more restrained in the kinds of arguments that are being made. 

Rosen: [00:21:47] Thank you very much for that. Jenn, as Melissa suggests, one thing that Chief Justice Roberts can try to do is persuade his colleagues to decide cases on narrower rather than broader grounds to avoid these 5-4 splits. Justice Kennedy notably was resistant to that. He preferred sweeping rulings. Do you believe that justice Komanoff might be more sympathetic to Chief Justice Roberts efforts to decide cases narrowly. Or would he be more like Justice Kennedy or perhaps like Justice Thomas more determined to just get the right answer even if that involves a sweeping ruling and a 5 to 4 split. 

[00:22:27] Well I think it's a great question. I mean I think one thing actually that could also impact the types of cases that the Court decides of course is how the Court votes in terms of which cases it decides to grant cert review in and so who knows how- you know justice Kavanaugh may see a different set of cases as cert worthy than Justice Kennedy or perhaps the justices will actually keep in mind concerns about public view of the Court based on what cases they decide to hear when or how much percolation they require of the lower courts before the Court takes up big questions. So there might be some of this that shaped a little bit behind the scenes just in terms of the types of questions that the Court will consider answering. I would expect justice Kavanaugh to be driven like a lot of the justices I presume are in part based on how the question is presented by the litigants and so I think the justices are more likely obviously to reach narrower rulings when the question before the Court is phrased in a way that is narrower. One thing that may mean that he will not write as many opinions that are quite as sweeping as some of the ones that we've seen from Justice Thomas over the years is Justice Kavanaugh in his confirmation hearings talked a lot more about stari decisis than I believe Justice Thomas did in his hearings and so Justice Kavanaugh we know he hasn't given us exactly the precise factors in how he weighs them but he has talked about the idea that stare decisis is baked into the Article III judicial role in the constitution. So even at times when litigants raise broad questions whether it's asking directly for something to be overruled or asking a broad constitutional question I do think at least to some degree he will have in mind what has the Court's doctrine been on this case up to this point and be thoughtful about that in terms of how he works to draft an opinion if that role is assigned to him. And so I- so I do think that that approach to judging will will temper a little bit in the way in which he chooses to rule in cases. 

Rosen: [00:24:33] Very interesting. Melissa, if Justice Kavanaugh behaves as Jenn suggests and is- both works with Chief Justice Roberts in having the Court refuse to hear controversial cases to begin with and also perhaps is amenable to deciding them more narrowly, might that help restore the Court's legitimacy in the eyes of skeptics? 

Murray: [00:24:55] I think it will certainly do a great deal to ensure that the Court is not too far out in front of the public on these crucial issues. I mean again the Court is sort of an unusual organ in our constitutional structure. Unlike Congress it lacks the power of the purse, unlike the executive but lacks the power of the sword. It really depends on the public believing in its legitimacy, believing in the work that it does, even when the public may not necessarily agree with what the Court decides in order to be a legitimate and functioning part of a constitutional democracy. So again I think more incremental shifts are important in these circumstances. I think if we had a true broad lurch to the right in some of these cases I think people would again begin to continue to question whether the Courts sort have been overtaken by partisan politics. What we're seeing is just a predictable split along party lines in an effort to move the Court in a clearly rightward direction. More incremental, more modest decisions I think will do a lot to alleviate fears that the Court has been captured by politics. 

Rosen: [00:26:09] One last beat on the, is there a problem? question: Jenn you know there's of course as we all know a long debate about what judicial activism is over the course of the 20th and early 21st century and both sides have accused the other of engaging in it, in particular of using broad rulings to strike down laws that they don't like. And do you have a sense that the current debate might create more support for incrementalism on the left and the right? And whether we call it activism or not, basically for narrower decisions rather than broader ones and that these concerns about legitimacy might factor into judicial decisions more broadly? 

Mascott: [00:26:46] Well I'm not necessarily one who sees the idea of- the question of judicial activism as as necessarily narrow versus broad rulings. I mean I think going back to the question of how broadly the Court rules in a given case, we certainly have a number of examples recently where the Court has issued narrower rulings sometimes when constitutional questions are raised but at the end of the day the Court does have to I think honestly and fairly answer the question that's that's presented to it. You know Justice Kavanagh in at least one speech that he had delivered in his role as a judge talked a little bit about this idea of judicial or constitutional restraint. And he also suggested that he sees it more in terms of not necessarily narrow versus broad rulings just to- for the sake of being narrow but being more guided by the law that if it's something where the text of the Constitution or statute suggest one particular answer that the political branches have not been adhering to then at that point the Court needs to apply the law perhaps by finding action taken by the executive or the legislature to be unlawful. In an area where there's no law on point then it would be a problem and a violation of judicial restraint for the Court to step in and say there's- there's a violation you know just because it violates some norm or preference of the justices themselves. So I think you know him at least suggesting that it's important to be driven by you know by the text of the law when deciding whether to strike down or find unlawful something that a coequal branch is doing. The one other point about judicial restraint is you know obviously we want the Court to play a role in terms of making sure that it's reaching legitimate decisions, being fair minded and not trying to go toward one party or the other in how it reaches decisions. But I also think you know there can be responsibility taken by some of the other branches of government as well. So I mean I think one thing in general that would alleviate a lot of the pressure put on Supreme Court confirmation hearings or how much controversy or strong feelings there are when a particular justice is appointed or not would be if the Court just was seen by the whole legal system less frequently as the final absolute arbiter of every important issue. So one thing would be respecting the role of states in the constitutional system sometimes to be able to have the final word on decisions and the federal government not necessarily stepping in. Sometimes that might be Congress playing more of a role to reach solutions. So one particular example that comes to mind now is the issue of national injunctions that sometimes you know one federal district judge on both sides of the aisle has been issuing an injunction that might be striking down you know something by a president nationwide of both political parties and is that really the role that we want the federal court to play? And you know perhaps the Supreme Court will one day be called to weigh in on the propriety of national injunctions. But there's also legislation in Congress so maybe this is an area where instead of the Supreme Court actually itself having the final word on what its lower court should be doing with national injunctions maybe Congress sometimes can step in and answer some of these questions by being clear in the procedural guidance that it gives to the Courts. Perhaps you know in some areas maybe not every single area needs to be always addressed by you know the Court system. So I think that you know if other branches and levels of government can play a role as well and bring you back some balance the separation of powers that may also help over the years. 

Rosen: [00:30:17] Very interesting. Melissa what do you make of the suggestion that one way to reduce the perception of partisanship would be for other branches and institutions to play roles? There is a new interest in federalism among liberals and conservatives. Jeff Sutton has just written a great book, 50 constitutions, about the importance of turning to state constitutions. And Jenn has also talked about Congress doing its oversight role as well as thinking about national injunctions, so do you agree, and from a progressive perspective what could the other branches do to reduce the centrality of the Supreme Court? 

Murray: [00:30:55] You beat me to it Jeff. I was going to mention the left's newfound affection for federalism which they now call federalism and they don't call states rights pointedly. But I've seen a lot of this in California where I lived for a very long time. But you know one of the responses to the Trump administration was California taking on a more potent role in articulating policy at the state level in areas like environmental law and reproductive rights where it thought the federal government was moving in a different direction from what the California populace would have wanted. So I think that's going to be an area where you see lots of progressive states getting involved. I do think the sort of shift to embracing some of these areas that I think for a long time have been viewed as sort of captured by the right means that what we really do need is sort of a set of first principles that are not ideological but rather sort of neutral principles about the role of states and when states intervene. And we haven't really had them. I don't think we have them now even as progressive leaders have grappled with the question of federalism and have advanced questions of federalism. In so far as the other branches taking on a more robust role so that the Court is no longer quite so weighty in these particular controversial issues, I think that's a terrific aspiration but you know right now I think political- the political legitimacy of both the federal branches, the political branches of the federal government are at all time lows. Like many people don't trust either Congress or the executive. So the idea that somehow the decisions made in both of those branches will be viewed as more legitimate than what could be done at the Supreme Court or somehow beyond the political process I think is unlikely. And then I think that leaves us with state governments. I think we've seen a lot of really interesting activism at the state level in both the progressive and the conservative groups to deal with state legislatures and to advance interests across state executives and agencies. And to me it seems like that's an area that can be incredibly generative over the next few years. I think I'm a little disenchanted and disillusioned with the prospect of a lot of this coming from the federal branches. 

Rosen: [00:33:14] Thank you for that. Jenn, we're hearing this renewed interest from both liberals and conservatives about federalism in the states. I misstated the name of Jeff Sutton's superb book. It's 51 imperfect solutions, and I recommended to all the We the People listeners. But Jenn I want to ask you more broadly about the theory called departmentalism. Some on the left and the right are arguing for a return to the theory that Professor Keith Whittington defines as the notion that each branch or department of the government has an equal and independent authority to interpret the Constitution, and Whittington notes that this has been embraced by presidents from Jefferson to Jackson to Lincoln to Roosevelt to Reagan, all insisting on the idea that the Supreme Court is not the sole interpreter of the Constitution and rejecting the idea of judicial supremacy. Can you describe departmentalism, what its consequences would be and whether you find it in any way appealing. 

Mascott: [00:34:14] I think you know that there could be perhaps a narrow view of departmentalism as well as broader views of departmentalism. I mean I think if it's viewed just in its most simplest form as you know the idea that all actors in every branch of the government take an oath to the constitution and have to abide by it, that of course would be a principle that would be you know very good and you know we want to assume that Congress when it's legislating is putting its own mind to work to try to figure out if what it's doing is constitutional, the president as well. And so that's certainly- I think there needs to be a little bit more of a mindset or understanding at every level of government and in every branch that each branch needs to take responsibility, interpret the Constitution for itself and not just wait and see what the Court is going to do. At the same time I mean I think stronger versions of the departmentalist view would be to say well you know the Supreme Court's decisions should only have so much reach and they don't necessarily if- a holding in one case doesn't necessarily need to bind you know the complete range of activity in that area and every other branch. I cannot honestly say that I have worked out completely my view of exactly to what extent departmentalism should be imposed in that particular way other than as I say to suggest that I do think each branch - president, members of Congress need to be mindful of the role that they play within the constitutional system and not just wait until the Court weighs in. At the same time I mean you know we have a system right now where the Court's reaching decisions and we have a practice of those decisions being implemented within the other branches in a particular way. And I certainly don't think that we want a situation like we have now where you know certain folks are saying maybe the Court is not legitimate or maybe we need to make a change because people feel as though there's been some political turmoil. I think that would be the worst time to try to revisit something like departmentalism and to the extent that we want to take a closer look at the extent and the weight that each Supreme Court decision is going to have, that we would want to wait until we were perhaps at a period, if there is to be one in the future, that seems less politically contentious, has had less dramatic recent change in the Supreme Court, and where we can be a little bit more assured that we're going to actually be looking at solutions like departmentalism or whatever it would be, increasing the number of justices, term limits, any proposal that somebody might mention and make sure that we're looking at it from more of a cool temperament and letting the entire system of government think through whether changing the balance at all in the power between the branches is a wise move and what the implications of that would be. 

Rosen: [00:37:04] Thank you for that. Melissa, as Jen suggests, there are strong and weak versions of departmentalism. Matthew Frank, writing from the right on the National Review says that under departmentalism even if a president might reject the Supreme Court's conclusion about the scope of presidential executive powers it wouldn't give him the power to ignore a court decision interpreting the scope of legislative powers. And then on the left you have some very dramatic suggestions ranging from Mike Sachs who said if a conservative Court strikes down affirmative action I can see the feds refusing to enforce SCOTUS decrees. To Ian Samuels on a recent First Mondays episode saying if the Supreme Court is perceived as illegitimate in the wake of justice Kavanaugh's confirmation government officials might defy the judgments of the Court in cases where Kavanaugh is in the majority. That would be an extreme position indeed. What is your sense about the range of positions on departmentalism and do you find any of them appealing? 

Murray: [00:38:02] So again I think everything is on the table in this moment. I think it's an unusual political moment where there is a lot of anxiety about what is coming out of Washington and both the political branches and we've had this incredibly bruising confirmation battle that I think has left many people with doubts about the Court, maybe not a sense that the Court is completely illegitimate but certainly doubts about the Court's continued legitimacy. Departmentalism - what it has going for its favor is that there is a kind of restraint to it right? These other actors, all of them with a particular charge to interpret the Constitution in a particular way and to act in accordance with the Constitution may have a limiting effect on the other branches' work. And again it sort of checks and balances in this kind of macro system. I can understand the appeal of it. The one thing we haven't talked about at all here though is even as we've talked about structure and how to limit the work of particular branches if they're deemed to be over encroaching, we haven't talked about the question of minority rights and that historically has been something that individuals have looked to the Court to do and at a time where so many people feel that they are part of a majority whose views are being supplanted to a minority that actually is probably numerically closer to being a majority than a majority; we're more evenly divided than we have been before; the question of who's going to protect the interests of minorities whether it's racial and ethnic minorities or religious minorities or women, those questions still come to the fore and the Court at least in our generation has been the body that has been most forceful in articulating protections against majority will for those vulnerable groups. And I think one of the questions that departmentalism can't really answer is who's going to play that role? Will it be one of these other branches, will it be these individual members of Congress? The Court has been the role- the group in our lifetime that has taken on that role and if the Court is illegitimate, any protections in favor of these rights will also be viewed as illegitimate and any effort to not protect those rights will also be viewed as legitimate and again compound what I think is a looming crisis. 

Rosen: [00:40:24] Thank you for that. Jenn, we've talked about more incremental or narrow decisions; we've talked about departmentalism. Let's talk about three final possible responses to a perceived crisis of legitimacy, whether fair or not. Democrats are talking about judicial impeachment and court packing and it's not inconceivable, if the Democrats take the House, that we might see at least rumblings toward a judicial impeachment and then if the Democrats take all three branches at some point in the future, some are calling for court packing, for increasing the size of the Court to 13 justices or some such. What would the consequences of these actions be and why do you think they're a bad idea? 

Mascott: [00:41:10] Well I'll take judicial impeachment first and I believe actually I was listening to perhaps a recent podcast that you actually had participated in where you had talked about the rarity of the judicial impeachment solution and I think you had talked about attempts perhaps to impeach Justice Chase if I remember correctly and you had mentioned that the conclusion had been really that impeachment was going to be- should be reserved for problematic actions taken in- really on the bench in an official way, bad bad conduct in the role of a judge. And so I don't think you know right now we don't you know we don't have that here. Justice Kavanaugh's just sat on the Court so I don't think that is is the first place that we want to go to use that as kind of a political tool to uproot a result that you know we may not be happy with. So there should be a sort of a limited, very limited rare approach. About court packing you know I think- one thing to point out as well I believe the statistic- or maybe it's not a statistic but the history that I've read suggests that, I think it was 1869 or 1879 when we moved to nine justices and we haven't changed the number since then. So it's a very longstanding tradition that we have right now, having nine justices. It doesn't necessarily mean that that number should not ever change but it does suggest that we don't move too quickly towards court packing or adding justices. So I think that we should again with that solution like with everything be be calm and careful with that and perhaps take some time till we move away from the moment that has caused us to want to think about it and really consider whether that is is the proper solution. And I would point out, as, you know, court packing is something that both sides if they- if they have a strong view, may be an approach people want to move to. And so if one side moves to it now you know the other side may add to it and continue you know amping up the numbers or using court packing as a tool or a strategy. And we want to think through whether we think that's viable in fact, I was on a panel discussion just about a year ago at a Federalist Society event where there was an individual who suggested adding a lot of members to the federal judiciary at lower levels perhaps to make it easier to have administrative adjudication cases not be heard within administrative agencies but be heard within Article III courts. And there was quite a strong reaction against court packing at that time and that proposal saying maybe it was going to be perceived as too political. In fact people even within the same ideology or conservative constitutional background as the person making the suggestion were saying they didn't think it was a good idea. And so I don't think now- you know now it's a few months later and the idea's coming from perhaps the other side of the constitutional divide. And you know I think it makes sense to think through why it was a bad idea perhaps a few months ago, why it might still be a bad idea now. And you know perhaps if we ever decided we needed to move to a different number of justices one way to test whether we in fact thought it was a good idea would be to put it on some kind of a delay where the Congress passing the legislation providing for the new positions would make it so that those positions could not be filled by the current president in office but by a president 10 years down the line or something like that so we wouldn't necessarily know what political party was going to be filling the seats and let that be our test as to whether we just intrinsically think it's a good idea or whether we're turning to it just as a political solution. 

Rosen: [00:44:53] Very interesting. Melissa so Jenn has argued against both court packing and impeachment. On court packing, she notes that the number has been fixed at 9 since 1869. You're absolutely right. A quick Google has confirmed that, as well as confirming that before that, the size of the Court was intensely political, with the number going up and down with the judiciary acts of 1801 and 1802 and then it was fixed at 7 in 1866. And finally at 9 under the Grant presidency in '69. So you argue that it would be wrong to allow Congress to change the size of the Court for political reasons. And then on impeachment you notes, and thanks for listening to that podcast, that the president has suggested that justices should only be impeached for serious crimes and not for disagreement with their judicial decisions. So Melissa what are your thoughts on court packing and judicial impeachment? 

Murray: [00:45:55] Well if you thought I would weigh in in favor of it that you may be sadly disappointed. 

Rosen: [00:46:01] I'm crushed. Absolutely. 

Murray: [00:46:01] Sorry. 

Rosen: [00:46:01] No trouble. 

Murray: [00:46:05] I agree with Professor Mascot that this warrants really careful consideration. You know we've seen these things escalate. I mean we might think about the filibuster debates of the last 10 years- like the constant question over whether or not judges would be confirmed to the bench or whether we would have to remove the filibuster in order- because the partisanship in the Senate had gotten so bad. And eventually the filibuster was removed for lower federal court judges and then eventually for Neil Gorsuch's appointment it was removed for Supreme Court justices and I think that has only increased the level of partisanship that we've seen and I think the debacle that was the most recent confirmation hearings reflects the partisanship that was stoked by that fight over the filibuster. So I'm in no hurry to continue stoking those flames but I will say that the fact that these proposals are even being floated because these are truly nuclear options I think, suggests how broad the concern and anxiety about the Court's legitimacy is. The idea that the Court does not reflect a kind of moderate position in American politics but rather is deeply deeply partisan as an institution. I think this has been exacerbated by the conflagration over Merrick Garland's stolen seat. I mean we haven't talked about that but that is certainly part of the backdrop against which this confirmation hearings took place and certainly part of what is stoking the interest in the what I think are quite extreme views in terms of packing the Court or otherwise impeaching sitting justices. 

Rosen: [00:47:45] Many thanks for that. We have one final potential solution and we'll see whether we are going to end on a bipartisan note or not. It is term limits. On our wonderful We the People podcast last week Adam Liptak and the great Richard Epstein agreed that term limits might make sense at least in theory even if they might be hard to implement in practice. And they talked about various ways of implementing them. 18 year terms, giving each president the chance to appoint two justices and so forth. We'll begin with you Jenn, what do you think about the idea of term limits for justices? 

Mascott: [00:48:23] Well I think term limits is something that I personally would want to give a little bit more thought to before weighing in as a personal policy preference one way or the other. I mean certainly I think that's again another solution where we would want to take the time to to consider it as a- as you know system wide and determine if that's really what we think is best because we do have the 200 plus history of lifetime tenure for the federal judiciary and that- I've been doing a lot of research for a project, I'm working on looking back at the ratification debates, and you know life tenure and the independence of the judiciary were seen as going hand in hand and that's a really important value. So before we give that up even though there might be some really good reasons for it, we want to think it through carefully. I mean the one thing that I find a little bit better about that idea than the Court packing one is just that to make that change, I think you'd need to have a constitutional amendment. And so at least going that route, that would require a national debate at many different levels which I think would be much more likely to lead to a really well thought out solution about the way in which we'd implement it. That may not happen from a change that we can just get through federal legislation. 

Rosen: [00:49:35] Thank you for that. Melissa we're all breathless to see whether were going to end on a bipartisan note or not. Do you as a policy and constitutional matter, do you think term limits for justices are a good idea or not? 

Murray: [00:49:47] I'm going to again be the fly in the punchbowl. I don't think they're a good idea. I think they would certainly lower the heat in the confirmation process. I mean the stakes wouldn't seem quite so astronomical if each justice were term limited. But I think as a practical matter for judging they would create their own problems. You know Justices views as Andrew Martin and Kevin Quin and Lee Epstein have shown in their work, don't remain fixed. They evolve over the course of their careers and that's not surprising you know it may take time to develop a particular judicial philosophy or an interpretive approach and that might take longer than the 18 years that has typically been proposed as the ideal frame for term limits. More importantly I think if you are a term limited justice you might recognize that your own time on the Court is limited and that your time with a particular group of justices is limited. And that might shape decision making in ways that we might find problematic or alarming. So a justice who is eager to initiate a particular shift whether to the left or the right or to reverse a particular precedent might worry about the changing composition of a term limited court and might be inclined to make the kind of lurching shift from left to right and back again within a relatively short period of time and that kind of volatility I think is the absolute antithesis of the Anglo American legal tradition which is sort of staked on this idea of slow and incremental change. 

Rosen: [00:51:15] Thank you so much for that. And you were not a fly because in fact I detected some skepticism by both of you about this which was a helpful and illuminating on which to end. But our final end is our closing statements and this is the chance to tell our listeners as intensely and succinctly as possible what your answer to the questions we've been discussing are. So Jenn the first closing statement is to you, is there a legitimacy crisis on the Supreme Court? And what if anything should the Court Congress and citizens do about it? 

Mascott: [00:51:49] And I'll just reiterate what I said at the beginning. I don't think there's a legitimacy problem. I hear some of the statistics about poll numbers being lower and you know as was also mentioned in this podcast the poll numbers for Congress are low as well. And you know Congress is making decisions it's legislating it's appropriating we're abiding by those decisions and so I don't think negative poll numbers or public concern needs to have any kind of definitive statement on the legitimacy of the Supreme Court. I think that the legitimacy of the Supreme Court hinges in large part on the justices continuing as they have for hundreds of years and for decades to continue to try to uphold their oath to the Constitution, their oath to apply the law fairly, for liberty, for all citizens at every level and that each individual justice and then the justices together as a court should continue to try to do that to the best of their ability. I mean there's also many many lower level federal judges who are involved day in and day out in preserving rights for individual citizens and in helping to ensure that the law's administrated fairly and as those judges continue to follow their Constitutional oath that will also bring protections to individual citizens and strength to the democracy. And then I do think that Congress and the president and people who work within the legislative and the executive branches also should be you know routinely as all of us should as citizens aware of our you know what the Constitution says, aware of their constitutional duties, and the role that they can play as well in making sure that there is fairness and equity for all and that jobs are really being administered for the best of the public interest and citizens' interest and not just for one's own individual particular preferences. And then also as Professor Murray mentioned as well I also agree that there is room to think about more of a role for states and I like Professor Murray's suggestion about trying to think through ideologically neutral ways to encourage federalism and states having a role within the policy areas that they are designed within the constitutional system to play. And I thank the listeners very much for participating and listening in this- in this conversation and for the National Constitution Center for hosting it. 

Rosen: [00:54:14] Thank you for those generous words. Melissa last word to you. Is there a legitimacy crisis at the Court? And what if anything should Congress the Court and citizens do about it? 

Murray: [00:54:27] Well first let me say thank you as well for having me. This has been terrific and it's been great to speak with your audience. I don't think that there is the kind of crisis that we imagine. I don't think individuals think that the Court is illegitimate. But I do think that public faith in the idea of the Court as a neutral nonpartisan body has been deeply deeply hobbled after this last round of confirmation battles and I think a lot of work will have to be done to restore public faith in the idea of the Supreme Court as a neutral body. And in the meantime I think for citizens. I've said this for years. But I think we need to think beyond the Court when we're thinking about what it means to live in a constitutional democracy and we've so come to rely on the Court for so many things, for making all of these changes when I think there are lots of other venues in which we can direct, in a very direct way, our own attention. So you know if you're concerned about the state of reproductive rights you should be concerned about what's going on in state legislatures. Those cases don't get to the Supreme Court if those laws aren't passed and if they aren't signed into law by governors at the state level so there is a very concrete place where people who are interested in these issues can actually direct their attention and should direct their attention. And I'm always reminded of the great Learned Hand quote "Liberty lies in the hearts of men and women and when it dies there no constitution no law no court can save it. No constitution no law no court can even do much to help it. We will save ourselves." 

Rosen: [00:56:00] Thank you so much to professors Melissa Murray and Jenn Mascott for an illuminating, thoughtful and deeply civil discussion about this divisive and important topic. We the People listeners it's so important in these polarized times to convene these civil discussions among people who agree and disagree respectfully and with so much intelligence and depth and civility. So thank you to professors Murray and Mascott for spreading constitutional light and hope to have you both on again soon. Melissa, Jenn thank you so much for joining. 

Mascott: [00:56:35] Thank you. 

Murray: [00:56:36] Thanks for having me. 

[00:56:43] Today's show was engineered by David Stotz and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott. Please recommend We the People to your friends and colleagues so they too can spread constitutional light and educate themselves about the Constitution and remember to rate review and subscribe to we the people on Apple podcasts Google or wherever you listen. Remember dear We the People listeners despite our congressional charter the National Constitution Center is a private non-profit. We must engage citizens across the country to support our work so that it can continue and we can continue to spread constitutional light and can convene more important civil constitutional dialogues. There's few places in America for these discussions to happen and the Constitution Center is so honored to fulfill its mission in this way. So please support us. Go to the website and become a member. On behalf of the National Constitution Center, I'm Jeffrey Rosen. 

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Scout Day FAQ

Can you tell me more about how the day is structured?  What can I expect?

At the National Constitution Center’s Scout Days, scouts and their leaders will participate in a wide variety of activities throughout the museum. Activities include both independent museum exploration as well as games and workshops lead by our staff. Most activities last about a half hour.

Every group will receive a customized agenda, which will serve as their “cheat sheet” for the day.  All scouts also receive Scout Day Activity Packets, designed to guide them through their experience and ensure they are accomplishing all of their badge requirements while they are here. 

The customized agendas will list the times and locations of each activity, the page in the Scout Day Activity Packet that each activity corresponds with, and the badge requirements the scouts will be accomplishing.

Parents and troop/pack leaders are responsible for guiding the scouts from one activity to another.

The program does include a National Constitution Center Scout Day Fun Patch for each scout.

How do I make a Scout Day reservation?

Scout Day reservations are handled by our Group Sales Department.  Call 215-409-6800 to speak to an Associate.

Do I need to make a reservation, or can purchase tickets on the day of the event?

Advanced reservations are strongly recommended.  Our Scout Days occasionally sell out, so making an advanced reservation is the only way to guarantee your group has a spot. It will also allow us to prepare an agenda for you in advance, which will simplify your check-in process.  

My child’s scout troop/pack is not planning on attending Scout Day, but he/she wants to participate.  Can I book tickets for just my family?

Of course!  We book “groups” as small as one scout and one adult.  All Scout Day reservations are handled by the Group Sales Department.   Call 215-409-6800 to speak to an Associate.

My child is already attending Scout Day as part of a group, but I would like to attend as well.  Can I purchase one adult ticket?

We do not sell individual adult tickets to Scout Days.  Please contact your child’s group leader and ask them to add you to the main reservation. 

What are the differences between the Scout Day Activity Packets the NCC provides, and the Merit Badge Worksheets (or similar documents) provided by the scouting organizations?

The activities in our packets directly reflect the badge, adventure, and journey requirements outlined by the BSA and GSUSA.  We have simply tailored some of the wording to more clearly communicate how the NCC’s exhibits and programs align with those requirements.  We have not altered the fundamentals of the requirements in any way.  

Do we need to bring anything?

Please bring pens or pencils so scouts can fill out their activity packets.  We also encourage group leaders to print extra copies of their agendas for every chaperone. 

Is there a dress code?

No, the NCC does not require scouts to wear any particular uniform.  We leave all decisions regarding attire to the discretion of the parents and scout masters.  Most scouts do wear their uniforms, neckerchiefs, sashes, or vests, but some groups choose to wear matching tee-shirts, etc.  Others chose to attend in “civvies.”

Do scouts need to be accompanied by an adult, or can they attend by themselves?

Scout must be accompanied by an adult chaperone at all times.  Due to the nature of our event (described above) chaperones should be prepared to take an active role on Scout Day.  We require one chaperone for every ten scouts. 

We are not able to arrive by 8 a.m./stay until 3 p.m.  Can we still attend?

Yes!  We can customize your group’s agenda to accommodate your schedule.  We do recommend that you plan on spending at least 4-5 hours at the museum; otherwise it may be difficult to accomplish all of the activities offered.

Do you have Merit Badge Counselors on-site?
Boy Scouts Only

Yes, after they have participated in the day’s activities, Boy Scouts have the option of meeting with a National Constitution Center Merit Badge Counselor, who can recap the programs and sign Blue Cards. However, you should be aware that we have a limited number of counselors and there may be an extensive wait.  More information about the Merit Badge counseling process can be found here.

Do you provide Merit Badge Applications (commonly known as “Blue Cards”)?
Boy Scouts Only

No, we do not provide Blue Cards. 

Our Boy Scout has already completed all of the requirements for a badge, and just needs to meet with a Merit Badge Counselor—can he meet with someone earlier then 1pm?
Boy Scouts Only

It is not possible to meet with a counselor before 1pm.  Most of our counselors are members of our education staff, and will be busy presenting other Scout Day programs in the morning.  Scouts arriving in the morning are encouraged to participate in the programs, even if they have already completed requirements—the experience will still be worthwhile!

Do you provide the BSA/GSUSA badges?

No, we do not provide the badges, just the opportunity to work on requirements.  You will need to obtain badges through your troop or local counsel.  The program does include a National Constitution Center Scout Day Fun Patch for each scout, which will be distributed at the check-in table.

Can groups from other scouting organization, like the Baden Powell Service Association or the Frontier Girls, attend your Scout Days?

Yes!  While the days are designed to meet requirements outlined by the Boy Scouts of America and the Girl Scouts of the U.S.A., we also welcome groups from other organizations.  We are happy to work with these groups on a case-by-case basis to create a customized, worthwhile experience for their scouts.  Ask your Group Sales Associates to connect you to a member of the NCC Education team to discuss the possibilities. 

How do I get to the National Constitution Center?  Where can I park? Are there any discounts on parking?

Directions and parking information can be found on our website:  There are no discounts on parking.

What are my lunch options at the NCC?

Lunch is not included with the Scout Day program, however we offer several options for groups who wish to eat lunch while at our facility:

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Podcast: Libel, the Media, and Constitutional Legitimacy

You can listed to the podcast audio at this link:

Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the constitution among the American people. Recently President Donald Trump criticized the New York Times and called for a change in the libel laws. This is not the first time the president has criticized the Times and the press. Our topic today: what is libel? What do the libel laws say? What would the consequences of changing them be? And should they be changed? Joining us are two of America's leading experts on libel and free speech and it's such an honor to have them both. Adam Liptak is the remarkably distinguished Supreme Court correspondent for The New York Times. He writes Sidebar, a column on legal developments and, among his many other achievements, he practiced law for 14 years including in The Times' legal department before joining The Times in 2000. Richard Epstein is the inaugural Laurence Tisch Professor of Law at the NYU School of Law and among the most distinguished scholars of the Constitution in the country. Adam, Richard thank you so much for joining us.

Richard Epstein: [00:01:21] Pleasure.

Adam Liptak: [00:01:22] It's great to be here.

Rosen: [00:01:23] Let's jump right in. Adam the president has called for changing the libel laws. This would require an alteration in the actual malice standard recognized in the 1964 New York Times case. The actual malice standard means that news organizations have to knowingly publish a falsehood or published it with reckless disregard of whether it was false or not. Where did the actual malice standard come from? Should it be changed? And if it were changed, would the president become a libel defendant as well as a libel plaintiff?

Liptak: [00:01:57] So there's a lot in that question. The actual malice standard is a little hard for laypeople to grasp because- partly because it really has nothing to do with malice in the sense of ill will or spite. As you say correctly Jeff, it requires someone suing for libel who's a public official to prove not only that something false was said about them, not only that the false thing caused damage to their reputation, but also that the person saying the thing knew it to be false or entertained serious subjective doubts about the truth or falsity of what they said, so it has to be in essence a calculated falsehood and whatever else you can say about journalists - we may make mistakes, we may fall short of our own standards but it is a terribly rare journalist who is going to publish a knowing falsehood. And moreover even assuming that were to happen, the libel defendant is in a very tough spot because the only person really who knows whether the falsehood was knowing or not is the person who published it - very hard to get at with circumstantial evidence. So that bottom line of the actual malice standard is that it makes it all but impossible for people who are subject to it, public officials and public figures, to pursue libel suits. And that's what makes President Trump frustrated because he reads things about himself that he doesn't like, true or false, and he'd like to do something about it. But as a public official he's really boxed out.

Rosen: [00:03:24] Thank you so much for that. Richard you've written many distinguished articles arguing that the actual malice standard should be changed including an op ed in The Chicago Tribune in 1985 and many scholarly articles. Why do you think that the actual malice standard should be changed and what standard should be adopted instead?

Epstein: [00:03:42] Well I think the difficulty with the actual malice standard is it traces too much on what the defendants thought and not enough about the harm to the plaintiff's reputation which in many of these cases can be quite devastating. This has nothing to do with Donald Trump. It seems to me that the appropriate way to look at this is to figure out what the appropriate balance of equities is, and the earlier view which was actually announced when he was on the 6th Circuit by Chief Justice Robert Taft- William Howard Taft who later became president was, look if you broadcast something and you just simply make a simple opinion of the sort that says I think that X is a thief and it turns out he's not a thief, that turns out to be a false statement and you can sue for it. But if what you do is you lay out all the evidence which other people could then decide whether your conclusion that X is a thief is true or false, that's perfectly OK. So the subtle line between fact and opinion took a place in that case and I think that that on balance is a better situation because as Adam said it is basically the case after a lot of contentious litigation from say 1964 to around 1969, given the defenses that the newspapers have, nobody brings a libel case anymore. It has to reproduce the libel and everything else. So what should be done? One Solution which I like a lot is you don't worry about damages but you worry about corrections, and you say if it turns out that somebody can show that the statement is false, you don't have to prove anything about actual malice or harm, the newspaper has to publish a retraction at equal level and distinction of the original paper so the record could be corrected, and newspapers have resisted that, ironically on the grounds that it would hurt their reputation which only makes the point about how important reputation turns out to be. And indeed in the New York Times case of 1964 it turned out you didn't have to go to the actual malice standard to protect the defendant. The harm was said to be of and concerning the plaintiff, a standard test. Sullivan was not even identified by name. He became a local folk hero and he was able to sue for 500,000 dollars in damages at the time which would be about two and a half million dollars today for becoming a local hero. There were six other people waiting in the wings and Alabama could have broken the New York Times. So the correct answer in that particular case is look very hard at the particular damages and to look very hard at the of and concerning requirement and that will give you a much better mix than the current actual malice rule which was a radical departure from all pre existing cases on the subject, and to my mind a mistake.

Rosen: [00:06:18] Thank you so much for that and thank you for telling us that it was a Taft decision on the 6th Circuit that preceded these libel rules as a great Taft defender-.

Epstein: [00:06:27] Hallam against somebody or other.

Rosen: [00:06:29] Dear We The People listeners check out the Hallam decision. I'll read it too, and write to me and tell me what you think of it. Adam assuming you don't have Hallam memorized, what do you think of Richard's proposal to return libel law to the standard that existed before New York Times and what would the consequences of his proposal be?

Liptak: [00:06:45] So I think Richard is in one sense right, one sense wrong about the Sullivan case. It's true that the Sullivan case could have been disposed of in straightforward common law libel grounds, of and concerning. But it's also true that it was at the vanguard of a number of cases whose goal was during the Civil Rights Movement to drive the northern press out of the south and to deprive the civil rights movement of the attention that it needed like oxygen, and that caused William Brennan and his colleagues to come up with a larger rule, one that would protect the press robustly in an era of national crisis. Now you can ask the question, did they make too broad a rule that we're decades later- have issues with it. But I think that the core of the First Amendment really is concerned with protecting political speech and with protecting criticism of the governments and public officials in their official conduct and that the actual malice rule- perhaps it's been applied to too many kinds of people, but high government officials should be subject to robust critique, investigation, and criticism and there should be plenty of breathing room for the press to do its work. I'm not a fan of compelled corrections. The Court- I mean compelled speech is an area where lots of people are getting protection today. The Tornillo Case held- the Supreme Court said that we couldn't- there is no right of reply under American First Amendment law, so the notion that the courts should be telling the press what they must print is not correct.

Rosen: [00:08:24] Richard, let me just say that I've googled it and found it exactly as you said Post Publishing vs. Hallam 1893, fascinating that it was William Howard Taft who came up with a narrower rule. What would the consequences of adopting a narrower rule be? Would it be easier for Stormy Daniels for example to sue President Trump? Under the current standard a judge seems likely to dismiss her suit.

Epstein: [00:08:47] Well I mean the answer is it's going to be on balance easier for all plaintiffs to sue all defendants. So your initial teaser at the beginning that the president may rue the day when it turns out that the libel standards are turned on him and deposed anybody else, but just to give you an illustration the very forward New York Times, Trump (inaudible) as he reaps riches from his father, given the amount of documentation that's found in that report, it would be bulletproof under the standard I've put forward. There's also another interest and I think this is very important as well. Yes we certainly should be able to have robust criticism of the president and certainly with respect to facts that are commonly in evidence - anybody can more or less say what he wants, but at the time the decision came down there were a lot of people said you know you don't give any kind of respectable protection under the defamation laws, people are going to be much less willing to become public figures because they're going to be stripped of that particular situation. And the rule of course applies in every conceivable kind of case that one deals with, and during the 1980s it was interesting to see the way the cases broke. What the Plaintiffs did was go into exquisite detail: what the full statement was by the press, how it managed to force them out of a CEO position, it cost some serious electoral office, created difficulties in their marriage or whatever, and all that stuff was true. And the defense of the newspapers was always on the other side namely that we have this grand mission and so therefore this collateral damage has to be tolerated. And as far as the question of whether or not this is compelled speech one way or another this was an option for the plaintiffs. If the defendants want to fight this thing all the way through on this and not correct and have to pay damages, well I think it would be under the standard I said perfectly appropriate. Interestingly enough one of the things that newspapers now do quite assiduously is adopt voluntarily the particular situation that I've said. So if you have, as the New York Times has, a correction page, somebody phones something in and you research and it finds it's correct, you publish a retraction, in that place it's fairly high visibility, not perfect but it will do the trick. So we've moved into that particular kind of situation anyhow. But I do believe in the fact that you know asking somebody to correct the grievous mistake is not a form of censorship. It's not trying to tell them what to think. In other cases it's an effort- it's a remedy to create a remedy for a wrong and you can have wrongs in speech as you can everywhere else and some kind of rectification which is applicable in other cases should be applied here. I don't think the notion of freedom of speech tells you what to do when speech is false and defamatory. It only tells you that if it's neither false nor defamatory, you can say it to your heart's content.

Rosen: [00:11:35] Adam, you were a libel lawyer for the New York Times before you assumed your present distinguished position. Tell us about the kind of care that the Times takes before publishing an article and the remedies that it takes after it issues corrections.

Liptak: [00:11:50] So Richard is quite right that the world he's describing already exists. The question is whether it's voluntary and a consequence of following professional journalistic norms or whether it's compelled by courts. All serious news organizations promptly correct errors of fact. We do, and that means that the Times really very seldom gets sued. We have not lost or settled a libel case for money in the United States since the Sullivan case in 1964 which tells you two things: one, just how much protection it's given us, but also that we take very very seriously our obligation to get the facts right. When I used to give seminars to journalists I would describe the situation as a kind of doughnut and the inner part of the doughnut which is what we aim for is very serious fact based journalism, and when we have an occasional misstep to correct it promptly and transparently and openly. And the outer part of the doughnut is the amount of protection the law gives us, the breathing room the law gives us, so that the government which is the courts of course is not compelling us to say things, but is letting us use our own professional judgment about what the right outcomes are.

Epstein: [00:13:02] No other profession gets that degree of deference in terms of what it does, whether you're accountants or product manufacturers and so forth. I agree that these are enormously important prophylactics but I don't think that freedom of speech means anything more with respect to speech than it does with freedom of action. There are limitations based on force and flow and I think that to some extent those ought to be protected. Fortunately the prophylactic behaviors I think work relatively effectively. It's also the case that when you're going after public figures like the president, his reputation is so established positive and negative that even a very powerful and thorough survey like the one that the New York Times did is not going to change anybody's opinion about the president. Lots of people knew his father was rich, lots of people knew that he has taken an edge somewhere or another, lots of people knew that he became a kind of a licensing genius of one sort or another, so I think in effect with presidential candidates the vast amount of knowledge out there means it's very hard to move anybody one way or another. But with many of these business executives whose lives have been shattered by this kind of information, they don't have that background of public estimation of them which insulates them from unexpected shocks.

Rosen: [00:14:17] Adam has the- your response would be great and I also wonder whether the rise of the net and social media has changed things and since anyone with connectivity is a journalist, whether there's need for more protections?

Liptak: [00:14:29] So, a number of points. I think business executives are a good example of someone who might need more protection and in fact when I used to practice, I was very nervous about business executives because it was not at all clear that courts would hold them to be public figures entitled to the actual malice standard. Many courts consider business executives to be subject to a lesser standard of negligence meaning that mere carelessness could subject you to liability. So I think Richard is is right to be concerned about it but I think the law is alert to that question also. As to president Trump's reputation, let's remember actual malice is not the only element of libel; you have to show harm to reputation. And there are serious questions about whether in a number of areas President Trump's reputation is capable of being harmed. And then I think you had a third question Jeff but I've lost it.

Rosen: [00:15:21] About social media and the fact that bloggers don't do fact checking.

Liptak: [00:15:25] Yeah I think that there was more libel litigation going on in an era where we really controlled the flow of information to the public, where a handful of networks and big national newspapers and newsmagazines really were the way people found out what was going on, and therefore there was more reason to allow people to sue us because they could- what could they do? They could write a letter to the editor; we publish it or not. These days everyone has a platform to respond and- for better or worse, our reputation as being assaulted daily and it may be people are less apt to trust what we say even when we publish a 13000 word investigation that was the result of the examination of a hundred thousand documents over 18 months. We live in an era now where truth itself is contested.

Rosen: [00:16:22] Richard, your thought just on the effects of social media in a post truth world and whether that makes strict libel laws more or less necessary would be great.

Epstein: [00:16:28] Well what happens is, when you're dealing with social media it becomes almost impossible to use a libel law because any document which is stated by one person is transmitted by another, echoed by three other people, so the number of times that you could be called a liar in any given day could be in the thousands of people. So I think what's really happened is that there's no way that you could get the individual persons for libel. The hard questions that you'll have to ask him on which I'm highly doubtful is whether or not you wish to have some sort of institutional responsibility for the people who post the information or allow it to be posted on their sites, whether it's Twitter or Facebook and so forth. The initial inclination that I have in those cases is that this turns out to be a terrible mistake because that there are too many people who post on these things and the last thing we want the social media to do is to censor everybody that's there. The compromise position which has been rejected is if somebody presents credible grounds that a given statement is out and out false and defamatory or worse you take it off for a while examine and then put it back on if you think it's credible and you keep it off if not. My own view about that is I get more skeptical of that solution today because I think the sheer volume of stuff that we have is overwhelming. One of the things that was said in New York Times is that counter speech is a perfectly appropriate remedy. This was in response to the old aphorism which says the reason we have a law of defamation is that it's hard for truth to catch up with a lie. I think in effect the gap is closing a little bit and I think if you actually try to go to where we are today with mass media, it's going to be essentially a free fire zone no matter how reckless statements turn out to be, no matter how scurrilous the various kinds of accounts. I just don't see it. And one reason I don't see it is anybody who is a public figure who wants to bring a libel suit has to be mad because if you tried to bring this suit, anybody who reports on the suit gets the so-called absolute record libel privilege so long as it's an accurate summary. So you have to essentially announce that if you're gonna file a complaint alleging that terrible things about said about you, they're now going to be said, another hundred thousand times in the next 24 and 48 hours. There has been no serious libel litigation in the United States against anybody who is a remotely public like figure since 1990.

Rosen: [00:18:47] Fascinating. Adam what is the situation in Europe where in Britain, the libel laws are tighter and there is no exemption from liability for social media companies? They don't have the equivalent of Section 242 of our Communications Decency Act. And what does that tell us about what we should do here?

Liptak: [00:19:05] So it's an entirely different culture in Britain. If something bad is said about you. it's expected you'll bring suit. Those things are often quickly settled in part because the other side has to pay your legal fees if you prevail. The protections for the press are much lower. But so are damages. So you get to be a little bit closer to what Richard was talking about, of having the legal system sort of tentatively assess the truth of something and not relying on concepts like actual malice and negligence in good faith, but really trying to drill down figuring out whether the statement was true or not and if it could be proven false, you will pay by American standards relatively modest damages, maybe some fairly substantial legal fees. As for this question of the Communications Decency Act, a federal statute that gives Internet platforms immunity from being sued for the things that they post, it really leaves you in a very odd situation. Consider this: if the New York Times publishes a letter to the editor in our print paper, it is as though we had said it. The libel concept is tale barrers are as bad as tale makers and we can be sued for it. If that very same statement is posted as a comment on our Website we are wholly immune. And the idea behind the Communications Decency Act, decades old now, was that the nascent Internet needed to be protected whereas the establishment press could be sued to a fare thee well because we were so powerful. Well you know that has flipped on its head but we still have this legal regime in the US that's a little hard to justify.

Rosen: [00:20:42] Fascinating. Richard should we move to the British system and should Section 242 be repealed?

Epstein: [00:20:48] Look, I think what Adams said is a sign of the anomalies. Let me say what I think the correct answer on that case is before I go to 242. What happens is I think if you are a publisher as opposed to a common carrier or a quasi common carrier you should be subject to the same rules whether you publish it on the Internet or whether you publish in your newspaper. And I think the newspaper rules are probably the correct rule because when you do these things, you edit those letters, you review those letters, you've got a lot of control. When you're talking about the random facebook people who just simply create a platform but don't supervise content I think probably the Communications Decency Act is the appropriate kind of response because I think it's just too much of a burden to go after them. I mean to put it in the other perspective these guys become punching bags in part because I think they make the terrible business judgment mistake of announcing their own politics when they're running these networks. But they get constantly hammered for liberal biases and conservative biases and so forth and I think it would be extraordinarily dangerous for the reasons that Adam said to allow some independent party to sort of make a judgment as to whether the skew is one way or the other. But it turns out that there are a lot of people who say the quasi monopoly status of these organizations invites them to heavy scrutiny even if they're not going to be a publisher. This will turn out badly in the next five or 10 years. I think one of the major sources of contestation because not only do we have novel technologies but there's also been a quiet revolution in the- not the libel laws but in the antitrust laws where more and more people are starting to say that bigness is itself a form of badness regardless of how you get it. And so I expect to see enormous contestation on these particular issues. For the time being I think that Adam should be responsible for the New York Times both online and in the paper, want to sign their own website. But I don't think anybody who simply runs an abstract posting thing should be there. So I would with very much unease keep that there and do what I think Adam says the newspapers do which is to constantly put social pressure on Twitter and Facebook and so forth, and Google to constantly watch their schemes and to do so relatively free of legal liability. I just don't think it's going to work. Other tools- it's too slow and the consequences too grave and the error rate is too high. Sometimes what you have to say is regrettable as it may sound that counter speech is the better remedy.

Rosen: [00:23:20] Adam are you confident that counter speech is an adequate remedy in an age of widespread fake news, and what kind of social pressure should be placed on the companies? Should they be making judgments about fact and fiction, or are there other screening mechanisms they should put into place?

Liptak: [00:23:35] Well Jeff you've written some very smart stuff in this area where we're really running into a situation where technology has outpaced the law and these giant companies, Google and Facebook and Twitter, have taken over the editing function that used to be done by journalists. And if they were truly platforms, simply bulletin boards on which people could put whatever they want, that would be one thing. But more and more we're insisting as a matter of shaming them that they take down hate speech, they take down the the political trolling, they take they take down the Russian advertising, and once they're in that role you wonder if that function should be entirely privatized and when they should be entirely trusted or whether there's a role for government. I don't have a settled view on that but I agree with the sense I'm hearing from Richard that this is a fast evolving situation.

Rosen: [00:24:36] Richard if there's not a role for government, some specific suggestions you have for the companies for principles they should adopt in trying to distinguish between truth and falsehood?

Epstein: [00:24:45] Me?

Rosen: [00:24:45] Yeah you.

Epstein: [00:24:46] My own view about this is I think that you cannot do two roles at the same time. You cannot as, for example Facebook isn't Google to some extent have tried to, be very strong in your political statements about progressive values of one kind or another and then expect that people will believe that you're impartial when you decide the way in which you run your website. And so when Google gets into this huge scrape and fires a particular employee who is a fairly learned statistical analysis of why there are fewer women programmers than there are men and gets fired for his opinions, for people on the conservative side of the line that's just a red flag in front of them. And the rule that you make in every business is you have one of two roles that you can play. You could be either an advocate or you can be a platform or an umpire; you can't do both. So my advice to all of these companies is what they do is they quiet themselves down, they don't write anything collateral about how you're supposed to lean in or do anything else of that sort, run their businesses and then, as I wish the New York Times would do, Adam, what you also have to do is to put in positions of power people whose political orientation is different from that of the dominant culture. The two of them could work these things out internally and so one of the reasons why many people are so suspect about the New York Times or the New Yorker, perhaps, and less so I think of the Wall Street Journal, is that you know there are no Republicans in positions of power in the New York Times organization. And if that's going to be the case it's just easy to draw the kinds of inference. There'll be no libel suits but there will be real reputational damages that can come from this. And I think virtually every one of these organizations has to aim for a kind of a balance on this particular situation. God forbid I should ever tell them whom they should hire or how they should do it. As you know I don't believe the anti discrimination laws should apply to competitive employment markets, only monopolistic services. So I'm not trying to tell them how to do it but I am saying that the reputational consequences of the newspaper of every newspaper are being perceived as being hopelessly one sided, same thing with Facebook and Google and so forth, Twitter less so perhaps, is I think a very important thing that they have to be aware of.

Rosen: [00:27:01] That's a fascinating suggestion. Adam, James Bennett of The Times opinion pages has been trying to reach out to conservatives but should, is Richard right that editors should be politically balanced for internal legitimacy as well?

Liptak: [00:27:15] So I take it we've moved away from a legal discussion to one of the professional norms. We hold- we hold ourselves out to be and try to be impartial and neutral, and I don't know that it should matter what someone's private politics are if they're following journalistic norms correctly, just as say a lawyer may have political beliefs but the client wants them to say something else. Here it's rather easier. Here you're just trying to give a balanced representation of the truth.

Epstein: [00:27:45] So let me say I I disagree with that.

Liptak: [00:27:48] Explain.

Epstein: [00:27:50] Look, my latest column is about gender equity. There was a New York Times series on it and what they do is they cite studies by the McCann Global Institute or the McKinsey- whatever it is, which I think are terrible studies, and they're treated as though they're gospel. And so what happens is all of this stuff makes it onto the page and there is nobody inside the organization that says hey do we really want to print this story or do we really want to run these conventions in that particular form? And so I just don't think you can have that kind of hermetic feel with respect to the way in which it goes, and the headlines I think are oftentimes very troublesome. And so I actually think that for their own sake every major organization should have a kind of internal intellectual diversity so that before things go out there's somebody on the other side that says do you really want to take that kind of picture? And I think that's true of conservative as well as liberal papers. It certainly I think is true with respect to universities and so forth. I do think that the levels of left wing dominance inside these establishment institutions for the most part is extraordinarily powerful. And I think that some degree of self correction is most welcome but at this point not forthcoming.

Rosen: [00:29:05] Adam if I could press that point, and this is obviously not a legal but-.

Liptak: [00:29:10] We're in the realm of press criticism, but I'm happy to talk about it.

Rosen: [00:29:12] It is and it's an important discussion because, dear We the People listeners, we are going to be talking about the legitimacy of our institutions, of the Senate, of the Supreme Court, and of the press, over the coming months and years. And the New York Times is a pillar of that legitimacy. Emily Bazelon, my colleague, I much admire her work but she's made clear you know in the in the magazine, her substantive views of Judge Kavanaugh but then she wrote a news article about his drinking habits. Conservatives said that that's biased. Is that a legitimate concern and how could the Times address it?

Liptak: [00:29:44] Well so the Times acknowledged that it made a mistake in asking Emily to play a role that Kavanaugh's story. As I understand it was simply that there was a police report that needed fetching in New Haven where Emily lives, and she did and got a byline and probably she should have been kept out of it. But I think that's a trivial point. I think Richard's general point is an important one. And but to move it back a little bit toward the law, not accepting for a second his basic premise as a factual matter. But let's assume it's true. Let's assume there are advocacy journalists in the world who have opinions and nonetheless as Richard was earlier saying in the Taft decision, nonetheless lay out the facts and lay out their conclusions. I don't know that that's such a bad thing. I think that's how much of the European press functions. I think that that way of doing things is fine. I think that's how the press functioned in the founding era. So this notion that lately, and this is a late 20th century development, that there are news organizations that hold themselves out to as straight and fair and on balance is to my mind a great thing. I think we are part of that. But the legal protection shouldn't rise or fall on whether you have a point of view or not.

Epstein: [00:30:57] I didn't say it should. I agree with that. But I'm saying in effect I think there are reputational hits. The New York Times has been a progressive newspaper I would say since about 1960 but there's been a noticeable shift in the way in which its headlines and the way in which it operates since that time. Many headlines that I see on the paper which seem to me to be criticisms are treated as news stories. I think that line has started to blur and I think that that thing is worried. And you know I'm an academic. I don't have an institution behind me. I certainly have a brand and I'm proud of it. I work for the Hoover Institution. I publish these papers and you know that's basically a small c conservative organization. I have nothing against this. I'm saying what is different about this and it's more important for Facebook than it is for the New York Times - Facebook if it wants to be a platform it cannot have a view. The New York Times if it wants to be a newspaper can have a view. I don't dispute that at all. But I do think in effect that if you push too hard the danger is to your own reputation because you become a fair target for people on the other side and socially if it becomes really intense on both sides of this stuff what happens is you see the position that we now have in American public life. There's nobody in the middle. Instead of having a bell shaped curve where the peak is around the center we have a U shape curve in which there are very few moderate Democrats very few moderate Republicans and you get a press pushing very hard on both directions. And I think civil cohesion takes a real beating when it turns out that each side does not recognize from time to time that it may in a particular case have made an error. So this is not a legal argument. It's a sociological argument which is very difficult to justify and so forth. But I think if you sort of look at the way in which the world worked on Supreme Court nominations 50 or 60 years ago it was a very different world than we have today and the polarization is going to be something that's extremely difficult to overcome particularly in this last iteration. It's I think a lasting scar.

Rosen: [00:33:01] The polarization will indeed be difficult to overcome. Thank you both for engaging in this freewheeling discussion. But Adam in this time when the polarization is so hard to overcome and the distinction between fact and opinion is so embattled, what can the New York Times do to restore the faith of readers of different perspectives?

Liptak: [00:33:21] I don't know that we can do anything more than keeping our heads down and doing our jobs, staffing up. We have doubled the size of the Washington bureau. We have enormous investigative resources. We still have bureaus all around the world. We're a powerful newsgathering organization. I'm sorry to hear that we disappoint Richard from time to time but once in a while if I'm like on an airplane say and I have more time than I usually do with the paper and read it front to back, I emerge from that experience very, very proud and thinking that this is a very valuable American institution at the top of its game.

Rosen: [00:34:00] Richard, since we're talking about the legitimacy of institutions I can't resist asking you how you would approach the challenge to the legitimacy of the court? What can the court do to restore faith in its bipartisan legitimacy?

Epstein: [00:34:16] On the court I don't think the problem is acute. I think it's how you get there. The nomination process is clearly broken. I will put aside all my partisan preferences on this thing. I think the first thing that one does is there's no such thing as confidential information that is shared not shared between the two parties. The second thing I think is I'm very much opposed in general to having the nominee appear before the panel and to be grilled in the way in which it happens. The record stands out there. Generally speaking what they're always trying to do is to get people to make concessions and predictions and so forth. And everybody has to play rope a dope and they start to be appropriate. A third thing I think which is very important, I would change the entire constitutional provision. I do not think Supreme Court Service should be for life. I think it should be for 18 year terms so as to be able to get a higher rate of rotation. You don't worry about people retiring in three years and the next guy setting the agenda for the next 40 years and so forth. That was a position I took many many years ago. And I think it is more today one way or another. The other part which I think I can't change is when you have a Supreme Court which has so much power over administrative law and such an enormous scope of federal jurisdiction, there's a lot of shall we say discretionary power there. And whenever there is uncertainty it will attack all sorts of resources as people try to move it one way or another. So I'm still a 1937 classical liberal on this issue. I'm not defending segregation or anything ridiculous like that but I think a smaller federal government and stronger property rights will make the Supreme Court a better place.

Rosen: [00:35:53] Fascinating. Adam, same very important question to you: what can the court do to restore its legitimacy or what can citizens do to restore it? And if you don't feel confident giving an answer, you- perhaps you could describe some of the best arguments that you've been reporting on.

Liptak: [00:36:06] Well I used to be a fan of confirmation hearings. I used to think that seeing John Roberts on his feet and Elena Kagan on her feet actually gave you some insight into their habits of mind and what kind of justices they were going to be. But I agree that this recent experience did the nominee and the court no good. Maybe there was value in it but at some cost to the court's legitimacy. I completely agree with Richard and also with the suggestion that with a constitutional amendment that we should join every other developed democracy in the world whose high court- whose constitutional court has either a fixed retirement age or term limits because this notion of people coming on at the age of 45 and serving until they're 90 and being the dead hand of history and timing their retirement strategically so they can step down under a President whose ideological views they approve of is very bad.

Rosen: [00:37:00] This is wonderful agreement. Richard, another suggestion is federalism and conservatives and liberals are arguing for a denationalizing constitutional issues and returning them to the state level. Do you want to take another beat on that?

Epstein: [00:37:15] Well as you know that's been my position since 1986. I think the commerce clause should not apply to internal manufacturing or internal agriculture or anything else. Go back to what it was that our friend Justice Marshall- Chief Justice Marshall said and give us an idea and ignore all of the extravagant misinterpretations of it that took place afterwards and it would be a far better place. The problem is it's much more difficult to undo a change when new institutions are embedded than it is to prevent it from happening to begin with. And so I think in effect that's too big for something to take on except by increments. The history of this has been very uninspired. Chief Justice Rehnquist in the Lopez case in 1995, he said I'm cutting back on the gun laws but he reaffirmed Wickard and Philban which says that the amount of wheat that you feed your own cows is part of interstate commerce because of its influence on price and quantities and so forth. That's been reaffirmed. I don't see how you can do anything particularly since the local- lower courts after Lopez have taken the now it's possible reading of it and essentially they are very comfortable with the status quo. And so I just don't see that happening. I'm a passionate defender of that position, a passionate defender of strong property rights, a passionate defender of separation of powers. Passionate defenders of living Chevron deference. That's why I'm an outlier.

Rosen: [00:38:43] Adam we are far afield of libel but the field we're in is extraordinarily fascinating. If Richard's position on the Commerce Clause were adopted which is no longer a hypothetical possibility what would the effect on the court's legitimacy be?

Liptak: [00:38:56] Oh I think to the extent the court disclaims power it depends on the particular context in which it comes up. You know I mean if they revise commerce- the commerce clause to strike down the Affordable Care Act that will be more important in the public mind as a political move than a jurisprudential one. But in general to the extent the court disclaims power that's probably good for the Court's legitimacy. The other thing that we might see more of that both Justice Brennan and lately Judge Sutton of the sixth circuit have written about is that there may be a larger role for state constitutions to play.

Rosen: [00:39:29] And I should say that Judge Sutton was here at the center recently discussing his fascinating book 50 constitutions. Richard, how is it a mixed bag?

Epstein: [00:39:38] Well what happens is sometimes what the states do is they pick up gaps that the Supreme Court leaves. Some states are better on property rights for example than the national government. But these aggressive state courts tried out statewide financing in California under Serrano and Priest led to an enormous destabilisation of the whole system and basically has made it extremely difficult to sustain public education in that state. The problem that you always have is you give a weapon to anybody and you make it in general terms it can be for good or it can be for evil. It's not saying that they're wrong in general for having decentralized norms. Second difficulty with state courts can Balkanise interstate commerce. That's where you really worry about the way in which these things go by putting various kinds of barriers on people who come from outside the particular state. This was a huge concern under the dormant commerce clause and to expand state power, it could be a threat to the national market so you have to be very careful.

Rosen: [00:40:36] And Adam the response both by Judge Sutton and by progressives like Heather Gerken, leader of the new progressive federalists, is that it would just turn down the stakes and would make the consequences of Supreme Court decisions less significant. Say more.

Liptak: [00:40:52] Well yes as Dean Gerken says there's something to be said for federalism all the way down, for returning power to lower levels of government, not only states but to localities, to let people see their democracy in action and not let them watch the kind of reality show we live in at the national level but to have a more authentic experience of lived democracy.

Epstein: [00:41:16] But again I'm going to answer just very shortly on the double edged sword point. So the strongest objection that many people have raised to the California requirement that headquartered corporations in California have a minimum number of women is essentially what they're trying to do is to dictate to the state the way in which many national corporations have to do their business and are going to encroach necessarily on what the state of corporations says about the same kind of business. So the external effects problems are extremely hard. I'm not saying that I disagree with Adam. In fact I tend to move in that particular direction, but ironically if you want to have provincial state governments doing this, their ability to discriminate against discrete and insular minorities in the segregated south is strong, and so you may need strong federal protections for example of voting rights on the one hand or property rights on the other hand when you're doing this. This is such a complicated system with multiple levers that you just have to be very cautious about recommending major changes in one particular area unless you figure out how other portions of the institutions are going to be evaluated.

Rosen: [00:42:22] This has been such a wonderfully free ranging discussion. I'm delighted that it's ranged so broadly but we need to wrap it up, and I'm just going to ask you Adam, is it important in this post factual era with so much suspicion of institutions to have a firm distinction between fact and opinion in the law? And what is the current status of that distinction and does it have to be firmed up or not?

Liptak: [00:42:52] It- to to a large extent whatever I think doesn't matter because it's a lost cause. Richard's point of view is shared by lots of people that journalism is is tainted by illicit motives and political opinions and so on. But in an ideal world they are very separate realms. You know there- we go back to the Taft Point again. There are factual premises that one would hope everyone can agree on. And then people can go to different conclusions from those agreed upon facts but unfortunately it seems we live in an era where people get to choose their own facts and then the conclusions flow from not a shared set of facts but from discrete silos of facts and that's very bad for our country.

Epstein: [00:43:39] Two words are so dangerous. Alternative facts is not an acceptable way of looking at things and fake news is often a term for news. It's so hard to lower the temperature but essentially the one thing that I learn as a lawyer is if you could narrow a dispute to a particular case instead of treating as an exemplar of the way in which the world is organized, if you change the rhetoric on particular cases, you're talking about what X said or why they're not talking about the relationship of whites to black, men to women, old to younger, you'll do better. But I think the journalistic preference often driven by the new entrants on the margins has actually tended to make every small case into a big case which creates all the difficulties. So Adam and I think are in agreement of that: if you could lower the temperature you might be able to improve the discourse.

[00:44:28] Wonderful. That is a fine motto for the We the People podcast and it's an excellent note on which to end. I hope to have both of you back to continue to discuss the legitimacy of our institutions, and it is always a great honor to have Adam Liptak and Richard Epstein. Adam, Richard thank you so much for joining us.

Liptak: [00:44:49] Thank you Jeff.

Epstein: [00:44:50] Take care. Good to speak to you Adam. Always a pleasure.

Liptak: [00:44:52] You too Richard.

Rosen: [00:44:54] Today's show was engineered by David Stotz and produced by Lana Ulrich Madison Poulter and Scott Bomboy. Research was provided by Lana Ulrich and Sheldon Gilbert. Please remember to rate review and subscribe to our podcast on Apple podcasts Google or wherever you listen. And recommend We the People to your friends and colleagues so they too can spread the constitutional light and educate themselves about the Constitution. And please dear friends always remember when you slumber and when you wake that the National Constitution Center is a private nonprofit. We rely on the generosity of people from across the country who are inspired by our non-partisan mission of constitutional education and debate. We the People friends this mission is now more urgently important than ever. You know how under siege the legitimacy of our institutions are. It is urgently important to have civil dialogue so that all of us can educate ourselves from the best arguments on all sides of the constitutional debates at the center of our national lives so that we can make up our own minds as informed citizens. That is why you must support the National Constitution Center with your time, treasure and talent. You must become engaged with us. And if it's possible, please come and support our work including this podcast, visit to learn more. On behalf Of the National Constitution Center I'm Jeffrey Rosen.

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