A mob stormed the U.S. Capitol on January 6, leading to a ricochet of effects including the impeachment of President Trump. On this episode, experts Larry Kramer, president of the William and Flora Hewlett Foundation, and Colleen Sheehan, Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership, explore the history of mobs past and present, online and in person. They discuss how “good” versus “bad” mobs played a role at America's founding, and how concerns about mobs influenced the political and constitutional thought of founders including James Madison. They also trace how different types of mobs evolved over time and were seen as illegitimate especially around the Civil War, as well as what has fueled mobs—particularly online mobs—today, including disinformation and social media. They conclude with some thoughts on potential reforms, including the need for more civic education and protections for free speech. Jeffrey Rosen hosts.
Larry Kramer is the president of the William and Flora Hewlett Foundation. He also serves as a lecturer at Stanford Law School where he was previously the Richard E. Lang Professor of Law and Dean. He is the author of numerous works including the book The People Themselves: Popular Constitutionalism and Judicial Review.
Colleen Sheehan is Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. She is also a member of the National Constitution Center’s Madisonian Commission. She is author of James Madison and the Spirit of Republican Self-Government and numerous other works on the Founding and early American political thought.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was produced by Jackie McDermott and engineered by Greg Scheckler and Kevin Kilbourne. Research was provided by Lana Ulrich and Alexandra "Mac" Taylor.
- Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review
- Colleen Sheehan, James Madison and the Spirit of Republican Self-Government
This episode was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Alexandra "Mac" Taylor, Paige Britton, and Lana Ulrich.
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
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. An armed mob stormed the United States Capitol on January 6th.
The first time that the capital has been violently attacked since the war of 1812 on today's episode of we the people, we explore the history of mobs past, present, and online with two of America's leading experts on the founders and the mob. Larry Kramer is president of the William and flora Hewlett foundation.
He also serves as a lecturer at Stanford law school, where he was previously. Dean and Richard, Elaine professor of law is the author of many books, including. The people themselves popular constitutionalism and judicial review. Larry, thank you so much for joining.
Larry Kramer: [00:01:10] Thanks, Jeff
Jeffrey Rosen: [00:01:11] And Colleen Sheehan is director of graduate studies at the Arizona state school of civic and economic thought and leadership.
She is also a member of the national constitution. Center's Madisonian commission. She is the author of James Madison and the spirit of Republican self. Government, Colleen. It is wonderful to have you back on.
Colleen Sheehan: [00:01:31] Good to be here, Jeff.
Jeffrey Rosen: [00:01:34] Larry, your book The People Themselves: Popular constitutionalism and judicial review is perhaps the definitive account of the founders and mobs.
And as you tell the story the founders had a different view of mobs at the time of the revolution than they did at the constitutional convention. Tell us how they understood the history of mobbing and the how at the time of the revolution, some moms were perceived as legitimate,
Larry Kramer: [00:02:04] You have to understand that democratic politics as a whole was a lot more popular.
Yeah, in that period than we think of it today, we think of it as highly organized. We think of voting as the primary means by which people express their political views directly into government and so on. Whereas in the 18th century, 17th, 18th century voting was just one device among many. That, that, that the community used to express itself.
So, and partly that's because there's not really a state yet. Right. You've got a legislature, most counties, you've got a sheriff and a magistrate that's the entire law enforcement mechanism in the, in the County and so on. And so there's active engagement in governing by the people as well. And so there's all sorts of devices for that.
I mean the idea of a petition is really active. That's why it's in the first amendment, even though we almost never referred to it even today. And so you could vote, you could petition, you would call conventions right in the town. People would meet and express themselves. It might be parties.
People would give toasts. The toast actually had a lot of political meaning and context you would parade, or just a whole array of devices that involve popular and expression of views and enforcement of law in an active and engaged way. And, and these were all like highly regulated by customary rules.
And you invoke different devices as you needed them. So crowd action or what we call mobs today, where it wasn't a central part of that, it was one of the ways in which the community would express opposition to something that the, that its agents and government were doing. And it ran under really well understood customary rules that, you know, when way back they had developed all through the middle ages in Europe and in England and, and there was legal regulation around it.
So for instance, there was this thing called the riot act because there was a distinction between the legitimate crowd action and an illegitimate mob action. And if the sheriff thought that the mob was illegitimate, the sheriff would come out and literally read them the riot. Right. I mean, read the extra to them.
And then there would be a discussion among the leaders of the mob in theory about whether this was in fact legitimate or not, but they would make the ultimate decision and act, and there were targets for which, you know, those things were appropriate or not. So for instance, if you look at the American revolution from say, when it begins in 1763, through the declaration of independence, mob action is the central part of it.
Right, but it's actually understood as a legitimate expression of constitutional opposition by the colonists against parliament. So parliament passes the stamp act, the colonists, try all the earlier devices they petition and they do all of that. And parliament is just ignoring them. So they engage in mob action and the mob action allows them to form in Boston.
They go down to the Harbor where the stamped paper is and they burn it. Which is legitimate. They then move on and go to Lieutenant governor Hutchinson's home. And they wreck his home because it is a mob after all, and that's not legitimate. And so the leaders of the mob and the town compensate the governor for the damage done to his house, but there's no argument that they would compensate for the burned paper.
Similarly the Boston tea act for complicated, legal reasons, they needed to not have the P offloaded into the Harbor, but it couldn't leave the Harbor. So after negotiating for 19 days whether there was a solution to this on the 20th day, because at three weeks, The customs master would take the tea as a tax.
So on the 20th day, they went onto the boats and came up with the only solution that they had, which was to dump the tea into the Harbor. And that was a legitimate mob action, but they had to break some locks in order to get to the T and they compensated the ship owner for the locks. So it just gives you this sense of the way in which.
Mob action was a regulated understood part of active, popular politics all through the period. Fascinating.
Jeffrey Rosen: [00:05:38] Thank you so much for that history. Colleen, in your. Definitive book, James Madison and the spirit of Republican self-government. You described how it was fear of mobs in particular Shay's rebellion in 1786 and 87, that led the founders to call the constitutional convention and led Madison and others to try to create a constitution that would slow down deliberation.
To prevent Mavs from forming. Tell us about that evolution and how the framers feared moms and what they did to prevent them.
Colleen Sheehan: [00:06:14] Thanks for that great question, Jeff. Basically when Madison was preparing his notes leading up to the Philadelphia convention of 1787 and the, this Group of notes that he entitled vices of the political system of the United States.
He talked about this very problem. I mean, the problem he said was instability, injustice and confusion. I mean, that's the definition of mob rule, instability, injustice, and confusion. And he repeated after the after the Constitutional convention met and the framers came up with a plan of government that they then set to all the States and for ratification Madison engaged in that ratification debate, along with Hamilton and John Jay, to write the Federalists.
Papers and the most famous of the Federalist papers, Federalist 10 Madison starts it off by saying, because this is his first contribution to the Federalists after Jay and, and Hamilton have written the first dynasties, Madison starts off by saying there are these problems. Of popular government, but the greatest problem of all is faction.
And what is faction except the cause of instability, injustice, and confusion. So what Madison is trying to do and what the other founders are trying to do. But particularly I think led by the brilliance of, of the mind of Madison is to find a way to have the rule of law, which is the opposite of arbitrary rule or in other words, mob rule anarchy to have the rule of law that is.
Behind it actually majority rule, but without that majority being a mob or a faction, that's a tall order and it's a tall order, Jeff, because as you know, No one had ever succeeded in doing this before in the history of the world. And so they had set themselves up to try to do something that many, many, many other civilization I tried to do, particularly in Greece and Rome, but as Hamilton says in Federalist nine and those petty republics of ancient Greece and Rome, well, they tried to establish a popular government is good government, but it's a history of.
Failure one failure after another, even if there's a slight bit of time where there's a momentary Ray of glory that breaks forth from the gloom, will I dazzles us with its fleeting brilliance? We're just left with that history of failure. So this is what the founders of the American Republic set themselves up to.
It's an experiment they said, can we do this? We want the people themselves, as professor Kramer has phrased it, the people themselves really to be the rulers in this new Republic, but in order for them to be legitimate as rulers, that rule of law. Has to be based on justice and the general good. It has to be the opposite of that.
Hobbsy an idea of just might makes right. Might is not sufficient. Might has to be on the side of right. Or as Madison again, put it in vices. He said that the challenge here is how do we place. Power and right on the same side, power has to get on the side of right. Not vice versa. The majority has. And so to do all of this is why we have this elaborate constitutional system.
Of a large Republic representation rather than direct rule that, that requires our representatives to go back and forth from the seat of government, to their constituents. And it's not just traveling for the sake of being back and forth. It's to talk with them, to work out these different ideas and these differences.
And then to go back to Congress and talk to their colleagues, debate deliberate. Disagree, but try to form a consensus. And that's why we have separation of powers checks and balances, federalism and by capitalism, within the Congress, all of this is meant to refine and enlarge the public views so that majority rule could become just rule.
Jeffrey Rosen: [00:10:50] Thank you so much for that. And dear, we the people listeners, you've just heard the two great experts on this subject, and I want you to read the people themselves and James Madison and the spirit of Republican self government for more Larry Take us from the convention through the 19th century mobbing w as you defined it, crowd action.
Even the idea that there could be legitimate crowd action went out of fashion after the convention. And by the time leading up to the civil war, when violent mobs were attacking African Americans Lincoln denounced. Mob accuracy and the rule of passion rather than reason in his Springfield by cm address.
Tell us the story of how the founders lost confidence in the idea that there could be legitimate mobs and take us up through the civil war period.
Larry Kramer: [00:11:41] So, so this does not happen in a day, obviously. I mean, the, the, the, you know, the founders were active participants in mobbing all through the American revolution, right.
I mean, that's how they wage and it was how they understood constitutional enforcement should take place once the. Once the revolution has succeeded, you begin to get a different kind of argument. So Shay's rebellion, which is the most famous one, although it's only one of many that are taking can place all up and down the Western frontier, but Shay's rebellion happens.
And it's really interesting. Washington's initial reaction on hearing about chase rebellion is, well, why don't you give them the relief that they're asking for? Because it's understood to be a legitimate expression of opposition by the community. And it's only after he is. Arguably misinformed, certainly informed in any event by people.
He trusted Knox and Hamilton who suggested to him that this is not one of those legitimate mobs. This is the bad kind of mob. This is the kind of mob we have to worry about that he flips his position and they use the militia to put down that mob. And at the same time, Sam Adams, who is at this time, the governor of the state, and as I say, he was one of the leaders of the mobs all through the American revolution.
His reaction to Shay's rebellion is you. We don't need to do that anymore. Now we have Republican governments. Now the people are themselves directly represented in and by the government. So we don't need this outside the government pressure from the people because we're their direct agent. And that's, that's really the beginnings of the shift in terms of how we think about it.
It doesn't happen in a day because as I say, if you read the ratification debates on the constitution, for instance, they're filled with references Madison himself in Federalist 45 and 46 talks about, you know, the militias and the other popular devices that are used to control government. But. As that framework begins to shift.
And as Republican politics begins to settle and institutionalize, so you get the formation of political parties, which are in extra governmental device for organizing politics in and through the government and you'll get the emergence of a leadership class. And so slowly over time, the notion of turning to these direct popular devices begins to become less and less plausible.
And more and more plausible as the idea that we work through our representatives, who we actually do have control over both through the ballot and through the party system. And, you know, something else happens, which is as you move into the mid 19th century and the early 19th century, anybody's ever seen, say the movie gangs of New York, you know, gets a sense of what starts to happen, which is the mobs themselves begin to change.
Partly because of the unleashing of democratic energies, which means some breakdown in the. In the social hierarchy that had people in the community deferring to, you know, a particular leadership class. And you begin to get these kinds of much more violent mobs who are not just protesting legal actions, but are fighting for control over, you know, economic stuff and crime and all of that.
So all of these developments are happening simultaneously and growing all through the 19th century. You do continue to have these kinds of political mobs and they are. Hearkening back to the same kind of precedence for what they're doing as they are becoming increasingly less legitimate, but right up in through, you know, you take the fugitive slave act is enacted in 1850.
You have a lot of mob actions in the North designed to prevent the enforcement of the fugitive slave act and the return of slaves. By communities that are invoking these precedents to say, these laws are unconstitutional, we are not going to allow them to be enforced. And so, as I say, it's a kind of slow mixed development that over time though, as, as I say, as PA, as, as politics institutionalizes as a new leadership class emerges and as people's relationship to either mobs on the one hand or the officials on the other changes becomes illegitimate.
So that by the, by the time of the civil war, certainly that notion of mobbing has. Has dropped out as a kind of standard tool, much less something that's legitimate and desirable.
Jeffrey Rosen: [00:15:34] Colleen, tell us about the shifting attitude toward mob violence that Larry describes in the 19th and 20th century. How did the experience of mob violence before and after the civil war change?
Constitutional thinking about mobbing and how did the constitutional system respond?
Colleen Sheehan: [00:15:55] Hmm. Well, I think Larry's a book on this as, you know just the, the, the prime place to look for the historic, the historical surroundings of the, this whole problem of what you've been calling. I think mob ism, a wonderful phrase a scary phrase, perhaps at least to us today.
But perhaps I could respond to this in the, in the sense of, of how Lincoln looked at this particularly in the Lyceum address. It's interesting what he does in that address, because he sets up the, the question of mob violence and he talks about how it's on the increase. And how that, what that is doing is chipping away at not only the rule of law for those people who really don't have much respect for the law, but it's taking good citizens who thought that the rule of law was something that, that they wanted to uphold and it's making them.
Think that maybe this law is nothing in our land. In other words, it's a crisis crisis of civic, faith, just like we're facing in the country today, where there's this distrust that is building because the law doesn't seem to be there to be the non arbitrary force that we can appeal to, to know that there's justice.
That's a possibility of an outcome in the city. So what Lincoln does is juxtapose arbitrary rule or mob rule with rule of law. But what's interesting there, Jeff, I think is that's not the final answer to this because the problem is there are good laws and there are bad laws. And so rule of law is not the end of the story.
The one that's sort of in the middle, because what would be best at least theoretically would be some kind of form of discretionary rule where you got it right. Like the philosopher King, but that's in theory. Right in practice, I mean, who is that person and how are we going to find them and will they stay that way?
And so we're left with this idea of how do we make within this system of the rule of law, how do we distinguish between good laws and bad laws and how do we put America on a course of, of. When there are bad laws changing them. And that's what Lincoln does in the Dred. Scott decision is talk about precisely that because he doesn't the Supreme court ruling in Dred Scott Tani's ruling for Lincoln is, is, is tantamount to bad law.
It's it's it's injustice, of course. And so that's when Lincoln's job really kicks in, he has to be a statesman. He can't change it himself, but he has to lead public opinion because what the people think, what they believe, that what what's in their mind and what's in their hearts. That's, what's at the core of this thing.
We call America. And if we are to be one people. We have to trust each other. There has to be some basic trust in each other and in the rule of law that we, the people make. And so this job of statesmanship wasn't only important in the 19th and early 20th century, but it's critical to America today.
Jeffrey Rosen: [00:19:20] Fascinating. Larry, Colleen perfectly sets up the, the duty of statesmanship and the founders as you described. And the people themselves expected that virtuous leaders would ensure that the people were guided by reason rather than passion and by exercising powers of self government would allow the Republic to survive today.
Of course. Social media has undermined many of the guard rails that the framers thought would cultivate virtuous leaders and citizens to take the most obvious example, Madison believed that the large size of America would make it hard for moms to discover each other and to organize quickly. Now they can.
Find each other instantly and algorithms, radicalize citizens, leading them to embrace false facts. As we saw in the organization that led up to the Capitol riot. Describe how changes in technology, social media technology in particular have undermined the framers guard rails and made virtuous leaders and citizens harder to triumph.
Larry Kramer: [00:20:32] So there's two separate strands, really. And the question that you're asking although they both ultimately end up at the same point, which was the thing that, that Madison and the founders were afraid of was direct democracy. And what it could do. So it's not just mobs that he's worried about.
It's really, when he talks about faction faction, isn't always mobbing. It's just groups that have a distinct self-interest that can pursue it at the expense of others. So the idea in Federalist 10 is we're going to expand this Republic so that it's got lots and lots of different groups, and that's going to have two effects for us.
First one, it's going to make it difficult to form a majority faction, which can control the legislature and then use it to tyrannized the minority, because you're going to have to put together coalitions. And that takes time. And in that time there's room for the leadership class, which by virtue of the size of the Republic are much more likely to be the people in office to engage in the kind of deliberation, not just amongst themselves, but with the community itself.
To slow things down to temperate, to get people to think about reason and justice and not just the passions at the moment. So that's the sort of framework and it pivotally turns them on the idea of, of having to work in government through representatives. That, that the one thing, one of the many things we learned from history is that direct democracy never works.
You can have a small community where you can. Physically do it, but that you never have a small community. That's small enough to be homogeneous. So you always have these differences and majority's will tyrannized minorities in that form. So we refine the views through the, through the, through a filter of a leadership class, that's then put in a position of engaging in a conversation with the community and you stand a much better chance of getting to results that are Justin, right.
So now what happens when the internet comes along is the ability of people to do the direct democracy thing on a much larger scale increases. Right. I, you know, I've got a crazy uncle who holds all these insane positions, but my crazy uncle actually is all by himself at family events. You know, maybe he can find one or two other crazy uncles in the world.
But, but not many suddenly the internet enables my crazy uncle to find all the other crazy uncles in the world and to organize an act. I mean, it's a very interesting thing to think that. Creating direct democracy through technology will not fail as badly as having direct democracy in person. It makes it even worse if anything, right.
But that's what the, it makes it worse because you don't even have the face to face stuff that at least tempers off in the way we. Talk about each other and other groups. So it, it fans even more the flames of passion and short-term thinking and hatred that direct democracy doesn't do enough to damp down.
And so when you begin to use the internet to organize outside and you no longer have to go through the government and these formal political structures as a way of creating a group action. That's when you're, you're basically back to the problem that the whole constitution was designed to prevent from happening.
And that was the key contribution that made popular government possible in the first place. And so we're seeing exactly what you would expect, which is pressures that are threatening the cohesion of the democratic society altogether. Yeah.
Jeffrey Rosen: [00:23:50] Thank you for refining the questions. So thoughtfully, Colleen, as a member of the national constitution, center's Madisonian commission, you wrote a paper about the effects of social media technology on the Madisonian system and talked about the ways that it undermined.
The Madisonian solutions of representation and geographic science. Describe your views about how that happened and how, as a result, we're living something like Madison's nightmare.
Colleen Sheehan: [00:24:23] Madison's a solution to the small "r" republic argument. In other words or direct democracy argument is the problem they're just as leery, as just said, is what might be called a contagion of passion.
And for Madison, the song he's talking about the base passion, he's talking about prejudices and narrow self-interest and when people can communicate too easily on that they can form. If they want to, if they can get enough takers, a majority, and that majority will oppress the minority. So Madison solution was to extend the Republic and so that you have more space and with more space that you have to cover, it's going to take more time to build a majority opinion.
And during that time of building the majority opinion, Madison's hope was. That there would be all these kinds of means ways and means to build and refine and enlarge and cultivate and form and educate a more reasonable public opinion. But what happens when communication is as Swift as it is, or in other words when, what on star Trek, they they posited could possibly happen with this warp speed has almost come true almost faster than the speed of light, where, in which opinions, bad opinions, any opinions, but including bad opinions can be communicated.
And People sometimes will jump on board and there's this contagion, it's like a disease spreading. And of course that makes for a arbitrary rule for injustice for whether it's mob or not. It's, it's oppressive to the rights of others. So what to do about this? So the Madison solution doesn't quite work like it used to work because the large Republic has the same problems as the small Republic.
Now, not totally, there's still a multiplicity of different interests in religious sex, and that's still there as checks. And we still have separation of powers, checks and balances and so on. So there's still a lot in place. But we need to pay more attention to what to do about this. I'll say Jeff, that the one thing Madison for sure would not say we should do is engaging.
Cancel culture. Stopping people from trying to shut them down, shut down an opinion because you disagree with, it would be the last thing in the world. No matter what your opinion is for the most part, as long as it's not, you know, actually acting to cry fire in a crowded theater you have to let people say what they think.
No matter how much you disagree with them, put it to the test, put it to the test of delivering operation debate, engage with our fellow citizens. Madison would say, remember, this is what he says in the Virginia report and his reaction to the alien and sedition laws. He doesn't think that we should be, we should be accusing others of sedition at the drop of a hat because he thinks that free communication, free speech, the free exchange of ideas and opinions is the bedrock.
Of popular government. And so what I would hope is that we could have some disagreement amidst, ultimately working for two, become one people. Again president Biden is talking about unity. One of the ways I think that we might be able to promote unity is to promote discussion. If we stop talking.
Then this democracy is at an end. If we stop talking and exchanging ideas, there's no hope for the future. You know, this, this, for example, this 1776 commission that was disbanded, I would suggest let it stay and ask that the 1619 folks come together with the 1776 commission. And let's talk about what this country means.
What, what an accurate portrayal of our history is not shut each other off. It's time to get back to the Madisonian solution to the problems that we face by discourse, public discourse and deliberation.
Jeffrey Rosen: [00:28:45] Larry, Colleen has given us an inspiring account of the classical liberal position embraced by Madison and Louis Brandeis, that the best response to evil speech is good speech.
And as long as there's time enough for deliberation, as Brandeis said on the Whitney case, then. Reason will prevail. Do you agree analyzing the problem? And when you look at, in particular, the question of online radicalization that can lead to violence and the way people can go down, internet, rabbit holes to embrace false facts.
Does the Madisonian classical liberal faith still hold true? Or do you see other. Interventions or solutions they're necessary both.
Larry Kramer: [00:29:29] So what I would say is that, of course I do also share the sort of core notion around free speech and that we have to engage in rational debate with each other. That, that it's not a solution to just shut things down.
But I do think that the, that the new technology raises new issues that require us to rethink what it takes in order to produce that kind of public engagement. So there was two different speech issues happening at the same time in this country. When most people are thinking about cancel culture, a lot of what they're thinking about are things that are happening on campus.
In-person between groups in a very traditional setting. Whereas what's happening online is a different problem altogether. And the lack of regulation is actually shutting down more speech than anything else because you have a new way in which to shut down speech. So I think about it this way.
Imagine I'm going to take something different. In the 19th century, we have a law of torts, right? How to deal with accidents that take place on the highway. And it has rules of causation and injury and you know, all the different pieces of it. But, and they're all we argue about what they mean. That's the sort of explicit cost balance.
A cost benefit balance. That's built into it and that's true for all law and all rights. There's no such thing as an absolute, right? All rights have an implicit cost benefit analysis, even speech, you can't fall asleep, cry fire in a crowded theater because we know that's going to cause more harm than the benefit of that speech is worth.
So now what happens is in the 20th century, the car comes along and suddenly. That technology has changed, not the explicit cost benefit analysis, but an implicit one that people weren't even aware of because it was just part of the world as it was given to them. So in the 19th century, very few people were actually getting hurt in accidents on the highway.
Cause they were on horses and buggies and moving out that fast, suddenly in the 20th century, they're moving in cars, lots of them, much faster. Different problem altogether. So we rethink fundamentally, we don't just continue to play with the explicit cost benefit analysis. We rethink the underlying premises and change toward law together.
I think something similar has happened to speech. So that brand dicey and doctrine that the answer to advanced speech is more speech. It's not really true, but it was true enough in a world in which the amount of bad speech to which people were getting exposed was relatively limited because of the nature of the technology.
Right. Imagine it's 1964 and somebody comes to you and says, I have a really great story. Lyndon Johnson is running a child trafficking ring out of a pizza parlor. Let's get this story out. Well, in 1964, that story would never have gotten out to the mass public, right? Because of the nature of technology was such that the groups that had access to mass public were actually responsible.
In in, in what they would put out and what they wouldn't, the internet comes along and you have a kind of direct democracy now on speech. And it sounds great until you realize the downsides, it creates in terms of the mob action to bully people out of talking, to drown them in all sorts of ways. And so the internet, at least for speech on the internet does require some fundamental rethinking of.
How should we think the libertarian notion doesn't work on the internet in quite the same way. So we have to think if we want to produce the kind of rational debate that is pivotal to a democratic Republic, what are we going to need to do on this technology in order to make that possible? Because of the thing that works in the real world, doesn't work in the virtual world.
Jeffrey Rosen: [00:32:43] Colleen if cancel culture is not the answer. To the problem of online radicalization. What is the New York times recently ran a piece about a highly educated woman as it happened. She was a college classmate of mine who became a Q Anon conspiracy theorist because the Facebook likes and Facebook algorithms reinforced.
False facts that sent her down a rabbit hole and an MIT study that found that false observed 70% more likely to be retweeted than the truth. Whereas people who engage in more analytical thinking and taking time to deliberate are more likely to discern truth from falsehood. So this question of algorithmic.
Radicalization is a complicated one. What might some solutions be?
Colleen Sheehan: [00:33:32] You know, Jeff, I just recently at the prodding of some millennials watch this film called the social dilemma. And I knew there were problems. It pointed out all kinds of things about these algorithms and so on and how this is, you know, pushing people down these rabbit holes as you talked about.
And so when Larry says, you know, we ha we can't just have more speech. We have to do something about this. My question is. Who's the, we, you know, I mean, because if it's, you know, think of Ellis or MacIntyre's title of that book, whose justice, which rationality, I mean, who's making this decision and if it's Twitter and if it's Facebook, I'm not sure at all that.
The way to go about this because what's happening now, Jeff, with the media, of course, is this old idea of this responsible objectivity and presenting the story. The news doesn't seem to be the standard anymore. What's been put in its place. Is this idea of consciousness. False consciousness and critical theory.
And so one person's truth is another person's false hood, and this is what we're facing. So Larry is absolutely right that these problems are much. They're not just more, they're different than we faced in the past. And they're going to take a great amount of creative. Thinking to address in such a way that we don't just establish new despots because we're desperate always want to do and silence those who would communicate their ideas to form an Alliance, to challenge them.
And so that one of the things we absolutely have to avoid is that kind of despotic behavior, whether it's on the part of Twitter or Facebook or the government or friends towards other friends, just saying, I'm going to cancel you out and unfriend you because I don't like your politics. I don't know the answer, but I do know that the answer is not to make people be quiet and to cancel them out.
Jeffrey Rosen: [00:35:39] Larry. We began by talking about physical mobs resulting in violence. And we're now talking about online disinformation that may or may not lead to radicalize violence. What as Coleen says and trusting the platforms to make these decisions is problematic. Facebook is about to hear an appeal on its new Supreme court of whether or not a lifetime ban of president Trump is consistent with.
Free speech values.
Larry Kramer: [00:36:06] That that's a difficult case. We'll hear what the board has to say about it. What is your, or you've studied this question that the Hewlett foundation and as a scholar to the degree, that we can no longer agree about facts. And as Coleen says, one person's truth is another's falsehood.
What interventions do you think are most effective in helping citizens take the time to deliberate so that we can agree on a common understanding of that? So there's a number of different ways to think about that. First, just to frame the issue with large in the old world and the pre-internet world, you know, we stood at a peak and we were afraid of sliding down the slope if we allowed regulation.
So we went with a strong libertarian notion on the assumption, because the harms of doing that, we're not anywhere near the benefits of doing it, but the technology change has done is make it actually. It's not clear that we're worse off taking the chance on sliding down some kind of regulatory slope, because what we know is if we do nothing sticking with the libertarian world, I don't think democracy will survive.
I don't think it can survive this technology and what it does. So like, Colleen, do I have the answer? No, I do think there are places we can start to think about it. But it's not enough to say, well, it's problematic to have the platforms do it. It is. It's problematic to have government do it. It is.
Regulation is problematic. It's risky. The problem is so is no regulation at this point and arguably riskier even than some of the regulate regulatory options. Now it's not as though we have nowhere to look for instance, in most of Western Europe. For different reasons, given their history, they have actually had modest regulations of speech along the lines that we have not allowed or needed here that worked tolerably.
Well, I think actually quite well. I certainly don't think if you go to France or England, although there are forms of speech that are regulated in ways that we don't allow that, you know, the public as a whole is significantly less. Free or anything like that, you know? And so it's not to say we should just wholesale import European forms of regulation, but they are things to look at from which we can learn and begin to study.
And we're going to have to figure out some other system, which is obviously going to involve the government to some extent, but we don't know what. The truth is private companies have always regulated speech. In the example I gave earlier in 1964, why would that speech should not have gotten out to the public because those three big networks and those handful of big newspapers that control the access to the large public wouldn't have put it online or it wouldn't have put it into their content.
And, and we were comfortable with that. There was modest government regulation as well. We had a fairness doctrine and so on. So, you know, what we're talking about is versions of that to take into account the internet. I think the issue that we have to deal with, which is the mass exposure of irresponsible bad information is actually manageable.
What are the platforms do? It's they're not like the old world in the sense that they're feeding you the information, right? So in 1964, you could have, somebody would have run that extremist story about the trafficking in a pizza parlor that a communist party paper, the John Birch society paper, but most people wouldn't have seen that because you'd only get that.
If you went out of your way to get it, you had to go to your newsstand and buy it or subscribe to it. And most people didn't do that. The platforms don't wait for you feed it to you through their algorithms that they think you might find it interesting. And if you look, they feed just a more of it. And if it doesn't get you that way, they let anybody in your network who sees it, pass it along to you.
So the friction is gone from the system and people are getting this stuff and it has the effect that it will predictably have. You could solve this problem by simply restoring the same kind of friction. Saying that Facebook, for instance, you can be the world's largest newsstand, make everything available, but you, you can't put it into your algorithm.
People have to go out and subscribe to this stuff and maybe they have to resubscribe once a month. And yeah, you can pass along to somebody that you read an article, but you can't pass them the link. You can just say, I read this great article in chicks on the right. You should like look it up, but the person would have to go look it up themselves.
My view is even that little bit of friction would probably be enough to significantly reduce this problem. Right. By restoring in a 21st century technology context, the thing about 20th century technology that prevented the bad speech from having the effects that it did, but didn't prevent the good speech from reaching people because you know, people are getting those channels and we've continued to do so.
That's an example. We just need to think creatively about this.
Jeffrey Rosen: [00:40:23] Colleen as a classical liberal, what do you think of Larry's creative suggestion that Facebook by reintroducing friction and not algorithmically suggesting like posts in a race to the bottom might increase Madisonian deliberation.
And then I wonder whether you think that. The problem we began with, which is violent mobs that organized online, but result in real-world violence. As we saw at the Capitol. And we also saw in me and Mar where a genocide was incited on Facebook by me and Mars, military. Is that the same problem as what people call Twitter mobs and Facebook mobs, where groups express strong disapproval in a cancel culture kind of way.
The don't result in physical violence?
Colleen Sheehan: [00:41:08] Well, I think the Institute, the second question, Jeff is no, they're not the same. Both might be at bottom. Not very helpful to the common, good to civic Alliance, civic trust, but they're very different things to incite to violence. Is punishable by law and should be if it's truly inciting to violence for people to be rude to each other and to unfriend and so on.
I don't like it. I think it's silly. But it shouldn't be illegal. You can't have you there, you can't unfriend, if you can't if, once you. Start legally determining who can unfriend. And I guess you're also determining who, who can be friends and, and of course we don't want a government there on, but see, this goes to this, I think the same question is as actually your first one, because.
Larry's idea friction. I would be absolutely willing to want to think about this more. Larry is one of the best legal minds right at the top in the country. He's got solutions that are always worth hearing and is also someone who is very respectful to people's rights and liberties.
And so Let's talk about that. Let's think of it. There is a, is there a way that we can put more obstacles in the way of these kinds of things doing so much damage, possibly fatal damage to our country that would also be consistent with civil liberties and civil rights. Now having said that, I think the problem, however, is no matter what obstacles we've put in the way.
And tried to do something through these kinds of legal channels at bottom, the problem huh? To do with our character as a people, Larry had mentioned that A number of years ago, those kinds of stories that are so ridiculously false and harmful to other people. If not libelous just wouldn't have gotten now.
They wouldn't have been printed. In other words, the media, the people in the media wouldn't that would not have printed those things. They saw their jobs differently. What changed? Why are we now living in a society where even our leaders, the, the, the elites who are the poets of our society, telling the story of our society, that they, that they are, don't see their job anymore.
The people in the news don't see their job anymore is reporting the news. They want to tell us how to think. And, and, and both sides. What a ramp it up to make things as sometimes as ugly as possible, because that gets people's attention, no matter how untrue the stories might be. So I think ultimately what we have to work on is not just legal means, but trying to find a way to reclaim and our nation an understanding, not just to freedom, but of responsible freedom of self-government Free government cannot work.
If the people themselves are incapable of governing themselves, Harriet Beecher Stowe at the core of her novel uncle Tom's cabin, she said this, they who can not govern themselves, cannot govern others. That's the problem, a big part of the problem we're facing, I think in the nation today, and we are in need of very much in need of civic education of a relearning of the tools of self-government in order to get over the terrible dangers that we face before us.
Jeffrey Rosen: [00:44:52] Thank you so much for that. It's time for closing thoughts in this. Fascinating and illuminating conversation reminds us that for the framers, self-government in the political sense, relied on self-government in the personal sense, individual citizens had to govern themselves to master our unreasonable and selfish passion so that we could be guided by reason.
Okay. And that required virtue. I'll ask each of you for final observations, but Larry, how can. American citizens through education and the constitution recover the sense of self government and virtue necessary for reasoned. Self government.
Larry Kramer: [00:45:37] Thank you for that question. And I have to return a compliment to Colleen because she said some nice things, but I will say my own understanding of so much of this actually grew out of things.
She wrote that I read when I was beginning to learn all this myself, particularly sort of the rethinking of Madison in light of some of the writings that people hadn't paid any attention to, it's really amazingly important to work. Just have to say that you know, in terms of these larger, broader issues, I, I guess I have three interlocking observations to make.
So one is about the role of history and thinking about it because very much of say the mob action that you're seeing today, people are hearkening back to, you know, we're just in this great American tradition. You see the same thing in the second amendment debate about guns with no sense of the significance of changing context.
Right. I mean, in the 18th century I would have worn a wig and that would've looked right, because that's the way fashion was. If I put that wig on today, I'll look like an idiot. Not because there's something inherently different about the wig, but because the context in which the wig is being worn is completely changed and that's.
Equally true for law as it is for fashion law is understood in the context. And as the context changes, if you don't change your understanding of the law or the practice you're missing the boat. So mobs in the 18th century are not a precedent for mobs today because so much change the nature and structure of government, the nature and structure of the informal political structure.
Just everything about politics is different. So you need to think about the evolution across American history of these things in order to understand that that's one. Second point is nevertheless, there are some core ideas, values recognition that drove people at the finding that remained valid today that we need to think about because we can look at them and say, those things haven't changed.
So one of the key ones is the susceptibility of people to short-term passions, to us and them, this, to tearing each other up to all of those things that, that, that system was designed. To tamp down and regulate and, and steer in the direction of reason and justice and those core aspects of human nature haven't changed at all.
The key insight, you know, we don't like to use the word elite because it signals something that sounds like a nobility or, you know, or some kind of oligarchy. And that's not really the idea, but there is a notion. That is built into the founding that as much of what we've lost today, which is that there do need to be mediating devices that sift between the responsible and the irresponsible and that we can trust to do that.
And that people actually do trust to do that. So if we've lost anything over the last 30 or 40 years, it's that right? Our political parties have disappeared. They no longer do what they used to do. Our media have fragmented and you could not forget the crazy stuff that I was talking about. Even the mainstream media.
Are hardly responsible in any meaningful way. The, the broad acceptance of minimal notions of truth. Th we're not talking about disagreements about facts here. We're talking about people who were self-consciously promoting what they know to be lies because it advances their ideology. That would have been unacceptable across the political spectrum at any time in American history?
No, that's not quite right at an earlier time in American history, it wouldn't have mattered because you had a political elite to whom people were deferring that believed in those in the 20th century, as we really did democratize what made it work was those elite institutions though. Nevertheless, respected those lines and now we've lost it at both levels and we have a real problem going forward.
So what we really need to be thinking about doing is rebuilding trust. In a set of institutions that political institutions, media institutions that can perform the function that Colleen mentioned is at the heart of Madison's Federalist 10, which remains valid today, right? Which is, which is tamping down the bad effects of faction and steering the conversation toward the reasonable, the right.
And the, just understanding that we're going to disagree about that. But nevertheless, being able to do it in a process where there's enough sense of shared community. And enough sense of shared premises that we can find those places of agreement and move forward. And as I say, if I think we've lost anything, it's, it's, it's those institutions, nobody has faith in any of them anymore.
Jeffrey Rosen: [00:49:45] Colleen, your closing thoughts about how America can inspire citizens to recover the sense of virtuous self government that the founders thought was necessary for the survival of the Republic.
Colleen Sheehan: [00:50:00] Well, first of all, I want to say ditto. I wanna say what Larry just said, so you could just re rewind and replay that tape.
But you know, here's the, here's the thing self-government. It's hard, hard, hard work. We have taken upon ourselves as a nation since our inception. This idea that it's not good enough simply to reject despotism, we want to be ruled. We want to rule ourselves. And we want to do it right. We want to be fair to others.
W it's not enough to have democracy. We've got to have just democratic government. This is the biggest challenge there could possibly be for a society. And it is the American challenge. And I think this hard, hard work of self-government, there's no panacea. It has to happen at home and families. It has to happen in schools.
It has to happen in the society. It's civic education. Isn't always formal. There's a re there's a reason. We have the national constitution center in the great city of Philadelphia. And it's not just a building. It's a building that's meant as far as I understand it, to investigate again, what this country in this constitution is about and to see if by chance it can live on.
And, and to do that is gonna require the work of many hands and many minds teachers, parents, government officials, concerned citizens. I will say one of the, one of the things that America's, that people are fighting about in America today is what it means to be human. This is so fundamental and, and whether we even.
Want to accept this little constitution and declaration as we go forward or whether we've got a better idea, but one of the things I think that's going to make or break us is that we have to get clear. On what America has always stood for to know whether we want to keep it and try to improve it, or whether we want to reject it because we think we've got a better idea.
And there's a lot of not telling the truth these days in a, in a very. Almost lacks a day sickle way. Well, no, I guess it's a pretty darn serious way. There's a lot of not telling the truth about our nation's past and if we cannot tell the truth about our nation's past, there won't be any future. For our nation.
So I think we have to start there and it's partly a job to happen in families, in schools in the society. And the constitution center is a, is a good place to, to be one of the leaders in this effort.
Jeffrey Rosen: [00:52:59] Thank you so much. Colleen Shannon, Larry Kramer for a truly inspiring discussion. I agree with you that the constitution center has a unique and meaningful role in convening the conversations about what the country is about, what it means to be human and how we can continue the deliberation that is necessary.
If we were to keep the Republic, I've learned so much from both of your. Scholarship. And on behalf of we, the people listeners, who've learned so much from this conversation, I want to thank you for a shining light of enlightened conversation about the us constitution. Larry Coleen. Thank you so much for joining me.
Thanks. Jeff. Thank you, Jeff and Larry,
the show was engineered by David stocks and it was produced by Jackie McDermott. Research was provided by Ilana over it. Please rate, review and subscribe to we, the people on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for a weekly and timely dose of constitutional debate.
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On behalf of the national constitution center. I'm Jeffrey Rosen.