The Constitutional Stakes of the 2020 Election
What’s at stake, for the Constitution and the Supreme Court, in the 2020 election? If President Trump is re-elected and has the chance to appoint more Supreme Court justices, will the Court—and the country—fundamentally transform in a way not seen in generations? Professors and constitutional theorists Bruce Ackerman of Yale Law School and Randy Barnett of Georgetown University Law Center explore these questions and more in a wide-ranging discussion with host Jeffrey Rosen.
Bruce Ackerman is Sterling Professor of Law and Political Science at Yale, and the author of eighteen books on political philosophy, constitutional law, and public policy. His major works include Social Justice in the Liberal State and his multivolume constitutional history, We the People. His most recent book is Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019). He was a lead witness for President Clinton before the House Judiciary Committee’s Impeachment Hearings, and a principal spokesman for Al Gore before the Florida legislature during the election crisis of 2000.
Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. He was previously a prosecutor in the Cook County States’ Attorney’s Office in Chicago and has been a visiting professor at Penn, Northwestern and Harvard Law School. His publications include twelve books, including his latest, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). He was one of the lawyers representing the National Federation of Independent Business in its 2012 constitutional challenge to the Affordable Care Act.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Revolutionary Constitutions: Charismatic Leadership and the Rule of Law by Bruce Ackerman
- Our Republican Constitution: Securing the Liberty and Sovereignty of We the People by Randy Barnett
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This episode was engineered by David Stotz with editing by Greg Scheckler and producer Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Ben Roebuck.
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Jeffrey Rosen: [00:00:00] 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. I'm so excited about today's episode because we bring to you two of America's leading constitutional theorists to explain the constitutional stakes of the next presidential election. Bruce Ackerman and Randy Barnett have taught me more about the US Constitution than almost anyone else in America and we've brought them to discuss whether the next election might see the dawn of a new constitutional republic. Let me introduce them and then we will jump right into this urgently important debate.
Bruce Ackerman is Sterling professor of law and political science at Yale and the author of many books on political philosophy, constitutional law and public policy. His works include the towering multi-volume constitutional history, We The People, that I recommend to all We The People listeners, and his most recent book is Revolutionary Constitutions, Charismatic Leadership and the Rule of Law. Bruce, thank you so much for joining.
Bruce Ackerman: [00:01:16] A pleasure.
Rosen: [00:01:17] Randy Barnett is the Carmack Waterhouse professor of legal theory at the Georgetown University Law Center and director of the Georgetown Center for the Constitution. He has published many books, articles and influential publications about the constitution including his latest book which he discussed not long ago at the National Constitution Center in which all We The People listeners should lead. Our Republican Constitution: Securing the Liberty and Sovereignty of We The People. Randy, it is wonderful to have you back on the show.
Randy Barnett: [00:01:44] Yeah, this is a show of only authors who have written books called We The People.
Rosen: [00:01:49] Absolutely, it's a very exclusive club, and any listener can join by writing a We The People book him or herself, but these are two of the great We The People books, and Bruce, in your most recent book, Revolutionary Constitutions, in your final chapter, you set forth the stakes of the next presidential election. If I can summarize your theory, you say that there have been three republics in the course of American history, the founding era, the middle republic, and then the New Deal/civil rights era republic, and you say that ever since the 1980s, Republican presidents have tried to reverse the New Deal/civil rights constitutional understanding with transformative judicial appointments. So far you argued they have failed but the election of 2020 might, with another vote on the Supreme Court, solidify a new transformative constitutional appointment that could usher in a new constitutional republic and a possible backlash. Tell us more about this extraordinarily provocative theory.
Ackerman: [00:02:48] Well, you're absolutely right in describing the great successes of we the people in transforming their constitution in the 18th, 19th and 20th centuries, but we also have a lot to learn from other efforts. Every generation, we have seen an effort to buy a president, to mobilize the population and claim a mandate for fundamental change in the name of we the people. The first one after the founding is the revolution of 1800, where Thomas Jefferson won an extremely close and contested election in which both sides claim to have won, but he was aiming to repudiate the revolution of 1787 which was a pro-national tax revolution so that we can get enough money to have an army adequate to repel British invasion and copying the British by creating the first national bank of the United States which Thomas Jefferson opposed as a swamp. But he only actually gained success when he won a second election.
Similarly we just jump over to Abraham Lincoln in 1860. This was an extremely contested election once again. Lincoln narrowly won on the popular vote in the electoral vote and it was only by claiming a second victory in 1864 that he claimed a mandate for the people for a new beginning based upon equality, the rule of law and citizenship for all Americans' voting rights for black males and white males on an equal basis.
Similarly in 1932 Franklin Roosevelt claimed the New Deal. Nobody had the foggiest of what it was about and that included Roosevelt, but by 1936, the stakes were very clear as a result of the opposition of the Supreme Court and Landon famously gave a famous address, responded to by Roosevelt on the eve of the election in which Roosevelt aimed for a mandate from the people and won the largest majority in the history of the United States with the New Deal Democratic Party gaining 60% of the vote in 40, four-zero, states.
They were in a position in 1937 to pass formal constitutional amendments when I say he made a terrible blunder, which we can talk about later. Similarly with Ronald Reagan, the first time around in 1980 he said that the question is whether the government is the solution or the problem, but he didn't have a mandate, and he appointed Sandra Day O'Connor who certainly was not an expression of that position. But by 1984, he did win a sweeping mandate from the American people and then he followed up, as did Roosevelt in a comparable way, with Antonin Scalia who was the equivalent of Felix Frankfurter and then Bob Bork who was the equivalent of William O. Douglas, both coming out of the academy being movement intellectuals who were going to revolutionize the Constitution, except in 1986 he wrote ... Reagan suffered a sweeping defeat in the senatorial elections and as a consequence, the Republicans lost their majority. If they had had it, certainly Bob Bork would have been a sitting justice and we would have seen a revolution like the one that we're about to see today if Donald Trump wins reelection.
Rosen: [00:07:28] Randy, there's much to respond to in what Bruce just said, but as he described it, 1936 was the equivalent of a constitutional amendment and the election of 2020 could usher in a similar constitutional amendment with transformative judicial appointments. What is your response to Bruce's argument and what do you see constitutionally is at stake in the election of 2020?
Barnett: [00:07:56] Well first of all I want to congratulate Bruce on his new book. I just added it to my Amazon shopping cart as he was speaking. It looks fascinating, but I haven't read it yet, so I'm going based on what he's just told us. Let me just say, I tend to agree mostly with Bruce's narrative. I almost always do agree with his narratives. They're very powerful. They're very well made. He finds facts and emphasizes facts that other people don't.
The big obvious disagreement between him and me is that this evolution of constitutional law that he describes so well and he also describes the politics behind the evolution of constitutional law, he equates with the constitutional amendment at various times in these different republics that we've had, as you've just inferred. He didn't say it this time around but since you know his position, you attributed that to him quite accurately and I don't think that this is the way we amend the constitution. We amend the constitution by article five amendments. This is very conventional. It's the amendments that he said FDR blundered by not getting when he could have. I think it was a blunder, but anyway, that's the major disagreement we have, but that's not exactly what I think this podcast is really about, because in other words I don't think it's really about this disagreement we have. I think it's really about the state of constitutional law, not the same thing as the constitution itself.
There is no doubt that constitutional law has been transformed more than once in the ways that he describes, so the question I think before us is what is at stake now in the next election? But I would like to begin by pointing out what was at stake at the last election, because I think the last election had the potential to be a revolutionary election because with the replacement of Antonin Scalia, and you'll notice for all the sturm and drang about Merrick Garland, the Republicans were only delaying the next appointment of a Supreme Court Justices until after the election. Had Hillary Clinton won the election, she would have made the appointment. It may or may not have been Merrick Garland, my classmate. She may have gone for someone else, but whoever she picked would have flipped the court in a fundamental way and as we move forward through eight years of her administration, because I think most incumbents do get reelected, and she was likely to, we would have had after 16 years of Democratic appointments to the bench at all levels, a fundamental transformation as President Obama promised, to constitutional law.
What would have been achieved, which wasn't achieved, is the final realization of what you might call the law professor's Constitution. That is, the Constitution that has been attributed, I think, inaccurately, to the New Deal. A Constitution which gives the federal government what you might call a national problems power, the power to solve any problem that Congress in its wisdom deems to be a national problem subject only to certain enumerated fundamental rights that the judges decide to recognize. That is the law professor's dream constitution and they read previous cases as having achieved this. I don't think previous cases ever did achieve this but I think it would have been achieved and I not only think it would have been achieved had she won the election. It would have been achieved for all time, because at that point, all kinds of other things would have kicked in including changes in voting and all the rest that would have locked this in forever.
But because she did not win and because Donald Trump did win, and because he happened to do something historically unique, and that is pledge to select Justices and judges off a particular list that was public and could be vetted publicly, which I think contributed in important respects to his election. That momentus, revolutionary change was averted. What we had was to some degree a perpetuation of the status quo, and then the question now is what will happen ... Although with a slight moving the ball to the right, shall we say, in the constitutionalist direction with the addition of justices Gorsuch and Kavanaugh.
What Bruce is now saying is that the next election could potentially provide a revolutionary moment in the other direction if Donald Trump were to win. I suppose that might be true, I think, if the constitutional conservative, if we might call it that, wing of the court expands to six from five, which we haven't ever seen in our lifetimes. Ever since the Rehnquist court it's always been five to four. That would be a difference. That would be an operative difference, especially with Chief Justice Roberts no longer really being a swing at that point. That would be a major difference. I agree with that. What I don't agree with, and I don't think he actually said this, and that is that if the Republicans should ... if Trump should lose the next election, I don't think that would be the harbinger of a revolution in the other direction because I do think that the five vote majority that currently exists would continue to exist. I think it might operate somewhat differently in a different political climate as they always do.
But I don't think it would necessarily be the revolution in the other direction that we would've seen if Hillary Clinton had won the last election. At this point I think I'll stop and see where we go from there.
Rosen: [00:13:26] Thank you for focusing our podcast on the question of the evolution of constitutional law rather than the important question of how we amend the Constitution. Bruce, what is at stake in 2020 if Donald Trump does get a sixth appointment and we have six conservatives in the constitutionalist direction, as Randy calls it? How would constitutional law be transformed? Why do you believe that this might indeed usher in a new constitutional regime and what sort of constitutional crisis could it possibly provoke?
Ackerman: [00:14:05] Well, let's explore two scenarios, one if he does win the election; the other one is if he doesn't win the election. If he does win the election, he will get almost certainly three appointments. Ruth Ginsburg is 86, Steve Breyer is 80 and Clarence Thomas is 70 and not in the greatest of health. So he will get three more appointments and as Randy suggests, in 2016, for a very long time, nobody took Trump seriously as the next president of the United States. Even he didn't, and Trump, to everyone's surprise, won. No one took his ... I mean, he made noises about the Supreme Court. He published a list of people vetted by an ideological organization of ... a politicized, ideological organization and had a dramatic rupture with prevailing practice since the second World War of having the American Bar Association have a voice and opinion as to whether a candidate is qualified or not qualified on professional grounds. This was ideological.
But this was one of many issues in a campaign that not too many people took seriously until quite late. Now, four years later, we know what Trump is about. All of us. We have different interpretations of what Trump is about, but one of the things, as Randy made, and I agree with him, is that he together with Mitch McConnell, and this is one of their successes, has succeeded in ramming through ideological appointment after ideological appointment.
And Mitch McConnell has done at least as much damage to the system as Donald Trump has by pushing the system of Supreme Court nominations so that 51 votes in the Senate with the two senators from California as 40 million representatives voting equally with the two senators, two Republican senators representing the 750,000 citizens of North Dakota, so that there actually is with a narrow 51-49 vote, and the Republican strength and the underrepresented of states of a much diminished minority under the McConnell system, while if we had pushed it up as I advocate later, as I advocate, to 60, back to 60 or even more, we will try to rehabilitate the notion that extreme appointments on either side are unacceptable and that centrists, whoever they may be in the Democratic and Republican parties have a veto over extremist appointments, which I think would be a much sounder system.
But if Trump wins this time around, people will understand that one of his successes is to ideologize and politicize the Federalist Society's conception of what originalism is about and that the Supreme Court will have a seven to two majority expressing that view. Now, this will generate a profound demolition job on the civil rights and New Deal revolutions. We can contemplate with the president's claiming a mandate from the people and his ideologically appointed nominees who are now appointed, will carry it out just like Felix Frankfurter and Roberts and all of the New Deal appointments did so. Trump and Reagan are trying to revolutionize the Constitution by Rooseveltian methods as they repudiate the substance of the Roosevelt and Kennedy/Johnson revolutions. That's one of the fine paradoxes, but that's what it is.
As so far as the one important disagreement I have with Randy is this notion that the Constitution is forever. The American Constitution has been transformed every 50 years, every 60 years, in more or less of a revolutionary way by presidents who have tried to transform the system in very different directions. The reason we have the oldest written Constitution is that it has adapted and revolutionized itself. Not evolution but revolution, time and again, and during the longest periods of relative stability, let's say the Reagan revolution through the present day, through Obama, who is still part of the Reagan era, struggling with the same issues, trying to repudiate some. We have normal politics and a Supreme Court that is expressing both sets of views, the views of the new transformers and the views of the old regime in one or another combination, and George Bush and Obama agreed on many things, not disagreed.
And so, too, did the constitutional doctrines of the court with the exception of Clarence Thomas who was a true early revolutionary, but at this point, if Trump wins, he will legitimate and also effectuate a radical, transformative revolution.
Rosen: [00:21:10] Randy, Bruce just said very clearly if Trump wins, he will legitimate and effectuate a radical constitutional revolution. I think you have a different construction of whether it would be a revolution or a restoration of what you call the Republican Constitution, but why don't we focus on the substance of what that revolution would look like. Do you agree that there would be a constitutional restoration or revolution if Trump wins and we have a six to three constitutionalist court, as you would put it, and can you tell us in particular what kinds of doctrines might change, from new limits on federal power to less deference to administrative agencies? Spell out what the new vision of constitutional law that might result would look like.
Barnett: [00:21:47] I have to respond to at least a piece of all of Bruce's last response to you, because there's a number of things in there that need to be talked about. I did, by the way, pull back immediately from calling it a constitutionalist court, because that is presumptuous. I mean, everybody on both sides thinks they're being constitutionalists. I did add constitutional conservative just so we know what we're talking about, just so all your listeners are aware of the fact that that's a label that you can describe ... how you could describe a court that has a particular judicial philosophy.
I do want to say that we are not talking about the Constitution of 1787. We are talking about a Constitution that's been amended 27 times. Those amendments have done a fundamental restructuring of the Constitution. The reconstruction amendments fundamentally alter the federalist system that we had, the system of federalism, and created federal controls over states that previously were not existent. Voting has been greatly expanded by constitutional amendment and the income tax amendment passed during the progressive era fundamentally changed the powers of the national government by putting all kinds of money at its disposal which it could then use via its spending power to influence what goes on in the country.
So it not only had a broadened regulatory authority, it had a broader spending power authority as a result of a written constitutional amendment, the latter. So nobody is here discussing the original Constitution. We're talking about the amended Constitution. Bruce has a very, very famous, well known theory that says that the New Deal court coupled with all the political changes that were happening amended the Constitution yet again without doing so through article five. Again, I think this is not the podcast to debate that, whether that happened or not, whether that is legitimate or not. Both of us are on record with our positions on either side of that.
The other major piece I wanted to take on of what he said, and there was a lot there that I can't talk about, but the one I think I want to talk about is his use of the word “ideological,” which he repeated several times. A lot depends on what he means by that but I think if the current court is ideological, that means ... if the current Justices that were appointed by Donald Trump are ideological then so are all the other Justices that have been appointed are ideological and the word loses its meaning. I think it's the wrong word to pick, actually.
So here's what I would say. When Robert Bork was nominated by President Reagan, he was supremely qualified. Absolutely qualified. Joe Biden said as much prior to his nomination, but Joe Biden made an interesting move during that nomination. He said, “Yes, well in addition to all those qualifications, which go to ability and character and demeanor and honesty, you have another qualification,” which he called judicial philosophy. Judicial philosophy is what your opinions are, what your views are, as to what the Constitution is and how to interpret it and how it can best be applied to individual cases.
Judicial philosophy, he said, was as much a part of the qualifications to be a judge or a Justice as all these other qualifications are, and where he disagreed with Bork and the basis on which he and his colleagues rejected Bork was on the basis of judicial philosophy. Now, I said at the time, and I say it today, I think Joe Biden is right about that. I think judicial philosophy is a qualification to be on the court and I think it is legitimate for senators to reject nominees because they disagree, even who are supremely qualified in all these other ways, but are not, who have a different judicial philosophy.
I do not think it's really fair or accurate to reduce judicial philosophy to what you might call ideology. It's very true that the federalist society promotes a particular judicial philosophy and it does throw in a completely above board manner, which is the sort of manner in which constitutional law ought to change, and that is it does, primarily through educational activities, via bringing speakers to campus, holding nationwide symposiums that I have participated in, that Bruce has participated in, usually well balanced symposiums, it does it that way. And it also does so in other ways as well, and its goal is to promote a particular judicial philosophy or at least a general judicial philosophy for purposes of this podcast we're calling constitutional conservative.
And it's doing so very effectively, but it cannot do that by itself. It can only do so in conjunction with the political process as Bruce ... this is Bruce's whole livelihood, is based on that thesis, and that was what was done in the 2016 election. The Federalist Society worked with a candidate, Donald Trump, as well as others but particularly this candidate, who essentially stood for nothing when it came to the Constitution. I mean, his sister's on the court of appeals and that's about it, and working with them, they offered him ... working with him and others, a list of candidates that would represent this constitutional philosophy, and he made this public, and I disagree with Bruce that this was marginal and nobody was paying attention to it.
I think what matters is people in the Republican primaries were paying attention to it and then at the end of the day when it came time to ... whether to sit on the sidelines or actually vote for Donald Trump, who was repugnant to many, for many different reasons, they chose to vote for him in part, I think in major part, because of the empty seat on the Supreme Court, the need to fill it and to fill other judges. This was one of the first judicial elections, presidential elections in my lifetime, and so the Federalist Society and other groups like them, like the Heritage Foundation and others, it's not just the Federalist Society, but the Federalist Society are the leaders here. The Federalist Society did what since I was a boy we'd been urged to do. You don't like the Supreme Court the way it is? Well you work through the political process and see that it changes.
I think they did so in an above board manner. It was completely transparent and what they were pushing for and what they are still pushing for is a judicial philosophy. I don't think the word ideology is far because unless it's fairly applied to everyone, because I do think all judges have a judicial philosophy and then the question is whether it's correct or incorrect, and I think the whole premise of this podcast, that if the election should turn out, that Donald Trump wins another four years and there's two or three more appointments, I think that because judicial philosophy matters, it will in fact matter to the court, and I think we're in agreement about that. The direction of the court in terms of constitutional law, which is what we'll get to, is going to change, or it's going to continue in a certain path as opposed to be deflected.
There's nothing improper about that and there's nothing untoward and there's nothing particularly ideological about that anymore than any other political or social movement.
Rosen: [00:28:58] All right, just to keep us focused on this crucially important question, Bruce, assume President Trump wins reelection in 2020 and he has this six to three or seven to two court, and that court restricts the scope of federal power, ends deference to administrative agencies and changes constitutional law in other ways that Randy has argued that it should, would that represent a constitutional moment in a new republic according to your vision or if the Democrats win in 2024, as you suggest at the end of your next book, and try to pack the court, precipitating a constitutional crisis and trying to get the Green New Deal through, would that mean that the question of whether the Constitution has been amended would remain open?
Ackerman: [00:29:46] Well, two points on Randy and then I move to your question. One is that Randy is talking about written amendments of a different age. After 1933, what are the important constitutional amendments enacted? Well, there is the repeal of prohibition. That was real important then. Then we have the two term amendment which was important, and then we have the poll tax amendment which was writ out of the Constitution by the courts, yet we've had a revolution in doctrine. I completely agree with Randy that Robert Bork was the most qualified nominee since Frankfurter, however then when he was turned down because he was so candid, both Democrats and Republicans alike learned the lesson, let's have stealth appointments. Let's have these nominees say, “Yes, sir, that's right. It's inappropriate for me to comment on cases,” et cetera and so forth.
Okay, that was a deep degradation of the constitutional process of the modern era and then the Federalist Society made up this list in secret, that they offered to Donald Trump. They interviewed nominees and grilled them in secret to find out what they really thought. This is very different from a public hearing, right? I'm personally acquainted. I actually think that Justice Kavanaugh is a highly intelligent man, thoughtful, but he certainly did not have a public philosophy in the manner of Robert Bork or Scalia. He was a judge who is making decisions with, and respecting the precedence of the Supreme Court. His presentations at the hearings, other than his outburst of peak, regrettable, was, “Yes, of course, I'm going to look at the law, period,” without saying what his philosophy was.
So here we have an ideological group who secretly interviews a list of people. We don't know how many rejected, wanted to find out what you really think in secret, and then they come up and Trump selects one or another of them, so as to maximize chances of confirmation. This is the degradation of the New Deal system of constitutional transformation, and which has alienated vast numbers of the public, both on the conservative time and on the liberal side, and into deep beliefs that some groups have ... putting up these ciphers who of course are then, when they get on the court, will do things that cognoscenti know, the political and legal elite know about.
I could actually give you ... could've predicted or can predict the kinds of things that Justice Kavanaugh may or may not do, but I've read a lot of opinions. There are very few people in the United States who read judicial opinions other than law professors. Rather than my being the law professor Constitution, I am trying to emphasize the significance of what is truly important, which is what people understand when they go back and vote again for Donald Trump. They understand now in a way they did not before, that Donald Trump will be pushing in the conservative direction and nominating people who will smile and not have a very big, very well developed and articulate track record in the beginning, so that they can get through this empty ritual of the Senate Judiciary Committee confirmation and then really push in ways that ordinary people are not capable of following because they don't read the opinions, but they do know that they voted again for Donald Trump.
If Donald Trump wins, then we will have ... already we've seen the devastating assault on the integrity of the Voting Rights Act which will be, I suspect, made worse by a devastating assault on the census, which will then lead to gerrymandering and reapportionment of a kind that we have not yet seen in partisan fashion. As Jeff was suggesting, I discuss this in my new book on revolutionary Constitutions and let's imagine that a Democrat wins. See, one of the very distinctive features of our present situation, which doesn't have analogs during the New Deal or even the civil rights revolution.
We have two movement parties; one conservative, the other one, progressive, we'll call it. A Trump victory will lead to the increasing polarization and alienation of the progressives, who may or may not, let us suppose they do, win in 2024 or 2028, and then led by ... I haven't the slightest idea, a strong progressive president, and swept in with the support of a substantial congressional majority in both House and Senate. What they will do is to try to restore and reaffirm, use Randy's language of restoration. Every constitutional revolution tries also to look back and say, “Ah, the glory of the past. We're going to bring part of it back.” So they will reinvigorate Obamacare.
They will repeal the ... or try to assault in new and distinctive ways the increasing pervasive discrimination in the voting booths against minorities and poor people throughout the country. These things will go to the reconstituted Roberts court and the Roberts court will have two choices. One, to say, “Okay, well, we'll accept much of this restoration of the New Deal/civil rights regime. We'll accept most of it and alienate the conservative movement,” who, after all, was voting in large numbers so that they, for the new revolutionary, new, let's call it, principled revolution of conservatism and they'll see the new Roberts court abandoned.
Or, which is much more likely, if Trump has filled three more positions, Roberts will lose control of the court. I know John Roberts. He is a serious person who is deeply concerned with the legitimacy of the court. When Roberts is no longer the swing vote, let's imagine that there's a strong majority that will declare unconstitutional, as against the principles it had elaborated during the Trump eight years, the new progressivism. Well, then we have something that will make the Supreme Court court packing crisis seem relatively modest.
What will the progressive president do when he points to the fact that President Trump was a minority president and when he made his initial appointments? And even if he were a majority president the second time around, he ran through these appointments 52 to 48 over the opposition of the progressive Democratic opposition, which actually represented more of the population than the 52 Republicans did. That's the rhetoric he will use, they will use.
Well, what will happen? Whatever happens next, this will lead to a deep delegitimation of the Supreme Court in the eyes of both the left and the right, the mobilized two sides, which would be a tragedy. I believe in the system of checks and balances and I believe that the Supreme Court of the United States, constituted by serious professionals selected on the basis of their expression of the center, the consensus, not one extreme or the other, as case is now. The centrist, the center of constitutional opinion of a generation. I believe that they have an essential role to play against the authoritarian pretentions of future presidents, because make no mistake about it, Donald Trump is not the last president who will try to mobilize public opinion to repudiate large chunks of the existing regime and drain the swamp and then threaten ... pose a clear and present danger of authoritarianism.
Rosen: [00:41:13] Well, I must ask you both, I must ask Randy during this final round of this riveting debate, to give We The People listeners a sense of what the conservative constitutionalist state of affairs might be if the seven to two or six to three Supreme Court is to come to pass. How much of the bill of federalism that you have proposed might be enacted by the court from restrictions on the tax power of Congress to limits on the Congress power to protections for free speech? Spell out what the Constitution might look like if this court were to come to pass and tell us why you think it would be a good thing.
Barnett: [00:41:58] It would be a whole lot less than I would like, and it would not be all the things that I've urged in my books. For better or for ill, that's not what would happen. I just have one little comment on him. Then I will answer the question, but the one little comment is that when the mob is offering you protection, they come into your business and they offer you protection and they look at your plate glass windows in the front of your business and they say, “Nice plate glass windows you have here. Too bad if anything were to happen to them,” and then you sign up for their protection.
That's really what we've heard from the progressives about the Supreme Court. “Nice little Supreme Court you've got here. Too bad if anything were to happen to it,” because if you do anything that they think goes against what I guess Bruce is calling the center, then they're just going to blow up the Supreme Court, because that's what comes next. There's no such thing as sticking to the norms, so to speak, if you lose, if the progressives lose. They only stick to the norms if they win.
So, that is the threat. I agree with Bruce. It's a realistic threat that we have to take into account, and then you have to decide whether you want to capitulate to the mob the way a small business man might decide to do so because they would prefer to stay in business than to go on, than to have it be destroyed.
At any rate, in answer to your question, a lot less than I would hope for. I'd like to be the bearer of good news for Bruce. Apparently the last time he was around the Federalist Society was in the 1980s, but since then, I should tell him and the listeners, that there's a tremendous diversity in the Federalist Society. I actually wrote my last book, Our Republican Constitution, not aimed at progressives but aimed at conservatives, who I felt were wrong in their views of the Constitution because they generally were, for example, favoring judicial deference to the majoritarian branches which would mean they would tend not to invalidate progressive legislation of the kind like Obamacare and in fact the judicial restraint person in the swing vote chair did not invalidate Obamacare and he sighted judicial restraint. The good conservative Henry Friendly version of judicial restraint that Bruce loves so much in order to justify that.
I think you'd see some of that. I don't think the Rehnquist court was ever enamored with abolishing the new deal. I think that's a complete distortion of what William Rehnquist was about and what the Rehnquist court was about. I think that was basically about holding the line and saying “this far and no further” without a limiting principle that would not yield a general national problems power in Congress. So you have to give us a limiting principle, which is why so many Supreme Court arguments are based on “what is your limiting principle,” but not a rollback. There was no rollback under the Rehnquist court.
And, I would say in a future court, I think you could see some rolling back of marginal doctrines that I think are important but they are relatively marginal, like doctrines involving deference to administrative agencies, which I think the republic will survive regardless of what outcome is reached. I don't agree that there's been a rollback on civil rights, as Bruce says, nor do I think there will be a rollback on civil rights. I think there's a strong civil rights consensus, both on left and the right.
So, I would say there would be some changes at the margin and I would ... I really don't know what those changes would be. It really would depend on what the politics of the day were, so it would depend on what was being placed on the table. It would depend on whether a Republican Congress is placing things on the table with a Republican president, or a Democratic congress is placing things on the table with a Democratic president. Until you tell me what the politics of 2024 and 2028 look like, I'm not going to be able to tell you what the reaction of the diversity of conservatives on a six to three Supreme Court ... how they would handle that.
I do know we have diversity now. I think Bruce, if he went down the list of conservative Justices, would admit that there's considerable diversity on the right now, and I think that diversity would continue.
Rosen: [00:46:15] Well, this is one debate where there's no time for closing arguments, but that is just as well because we are going to continue it throughout the year leading up to the next election and beyond. This has been a supremely illuminating debate about the constitutional stakes in the next election, and I want We The People listeners to engage it by reading Bruce and Randy's really important books. Bruce's We The People, his three volume set, as well as his most recent book, Revolutionary Constitution. Randy's Our Republican Constitution as well as his many other works, and I know that you will learn as much as I have.
We will hope to reconvene soon for a round two in this ongoing and crucial debate, and until then, Bruce, Randy, thank you so much for joining.
Ackerman: [00:47:02] Thank you.
Barnett: [00:47:03] Great to be here, Jeff.
Rosen: [00:47:07] Today's show was engineered by Dave (Stonce) and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team. Your homework, dear We The People listeners, is what I already said. You must read Bruce Ackerman's three volume We The People set and Randy Barnett's Our Republican Constitution. You will learn so much from it and if you're as excited as I was when I read both of these towering books, then write to me and let me know what you learned.
And please rate, review and subscribe to We The People on Apple Podcasts and recommend this show to friends, colleagues or anyone who is hungry for constitutional education and debate, and remember always, dear friends, that the National Constitution Center is a private nonprofit. Thank you so much for writing to me and telling me how much you care about the podcast and appreciate its unique role in promoting nonpartisan education and debate. Please signal that commitment by joining or donating to the Constitution Center at any level. A dollar would be great. It will just be a sign of your engagement, passion, and commitment, and then write to me and let me know that you've done that as well. [email protected], and you can sign up at ConstitutionCenter.org/Membership or /Donate.
On behalf of the National Constitution Center, I'm Jeffrey Rosen.
Jackie McDermott: [00:48:29] Hi, We The People listeners. I'm Jackie McDermott, the show's producer. If you enjoyed this episode as we hope you did, and want to hear more from Bruce Ackerman, tune in to our companion podcast, Live at America's Town Hall next Tuesday. Professor Ackerman recently stopped by the National Constitution Center for a sit down with Jeff and our live audience here in Philly. He discussed his new book, Revolutionary Constitutions, and gave his take on the future of the US Constitution.
You can hear that conversation next week on Live at America's Town Hall available on Apple Podcasts or wherever you listen. Thanks for listening.