The House of Representatives voted to impeach President Trump for a second time this week, with a vote of 232 in favor, 197 against, and four not voting. Prior to the vote, host Jeffrey Rosen sat down with two experts on the Constitution and presidential power—Cristina Rodriguez of Yale Law School and Michael McConnell of Stanford Law School. They shared their thoughts on the article of impeachment passed by the House; the charge against President Trump of incitement of insurrection in the wake of the mob invasion of the U.S. Capitol; the meaning of high crimes and misdemeanors under the Impeachment Clause; whether Section 3 of the 14th Amendment should be invoked to disqualify President Trump from holding office again; how the current media and information landscape may have contributed to polarization and events culminating in the riot; what reforms might help; and more. Professor McConnell is the author of the new book The President Who Would Not be King and professor Rodriguez is the co-author, with Adam Cox, of The President and Immigration Law.
Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. His new book is The President Who Would Not Be King: Executive Power Under the Constitution.
Cristina Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. She is the author of The President and Immigration Law (co-authored with Adam Cox). Rodríguez previously served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice. She is a non-resident fellow at the Migration Policy Institute in Washington, D.C., a member of the American Law Institute, and a past member of the Council on Foreign Relations.
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. Research was provided by Lana Ulrich, Alexandra "Mac" Taylor, and Jackie McDermott.
- Michael McConnell, The President Who Would Not Be King: Executive Power Under the Constitution
- Cristina Rodriguez and Adam Cox, The President and Immigration Law
- "The President and Immigration," Live at America's Town Hall podcast featuring Rodriguez and McConnell
- Brandenburg v. Ohio (1969)
- H.Res.24 - Impeaching Donald John Trump, President of the United States
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Alexandra "Mac" Taylor, Jackie McDermott, and Lana Ulrich.
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This transcript may not be 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.
This week, the House of Representatives introduced an article of impeachment against President Trump after the storming of the capital last week by a pro-Trump mob. On today's episode, we will discuss the constitutional issues raised by the prospect of another impeachment, as well as recent events. We'll also take a broader look at presidential power, past, present, and future. I am honored to be joined by two of America's leading experts on presidential power and the Constitution.
Michael McConnell is the Richard and Francis Mallory professor and director of the constitutional law center at Stanford Law School and a senior fellow at the Hoover Institution. He is the author of the new book, "the president who would not be King: executive power under the Constitution." Michael, it is an honor to have you back on the show.
Michael McConnell: [00:01:18] Thank you.
Rosen: [00:01:19] Cristina Rodriguez is the Leighton Homer Serbeck professor of law at Yale Law School. She is the author with Adam Cox of "the president and immigration law," which we had a great discussion of in a town hall program last fall. Cristina, thank you so much for joining.
Cristina Rodriguez: [00:01:37] Thank you for having me.
Rosen: [00:01:38] Michael, you have just completed a book called "The President who would not be King: Executive Power under the Constitution." Is there any historical precedent for last week's events? And what do you make of the argument that the storming of the capital by a violent mob represents the Founders' nightmare?
McConnell: [00:01:59] Well, there's certainly is no precedent for a president egging on a mob to attack the Capitol. This isn't the first time the Capitol was attacked by a mob, that happened before the Constitution was ratified, by a mob of unpaid soldiers in Philadelphia who mobbed Congress and actually Congress ran to Princeton and then to Camden and then to Annapolis and this is one of the main reasons they created a federal city, Washington, D.C. which would not be under the control of a state in order to protect themselves. They did anticipate that a president might abuse powers in order to stay in office.
The principal mechanism, they thought such a president would use, would be as control over the military. They were thinking of things like Julius Caesar, you know, who used his personal popularity with the army to displace constitutional government. I like to say our military has performed admirably.
I think one huge success of the American Republic is to create a non-civilian nonpolitical army that we do not have to fear. Even though, you know, former General Flynn issued, I thought the most horrifying statement of the entire last several weeks, when he urged President Trump to order martial law and have the army takeover, the voting machines and rerun the elections in the states where Trump lost by a close margin. But the military were having none of it. And so, in a sense, this is unprecedented.
Rosen: [00:03:45] Cristina, the same question to you. Is there any precedent for last week's events and in some sense, do they represent one of the framers nightmares?
Rodriguez: [00:03:54] We've certainly had hotly contested elections that have provoked violence, but as Michael said, there's no precedent for a president inciting an attack on Congress. During the last few days, and really the last couple of months, I've been thinking a lot about the way, I thought about the counting of the votes in the 2000 election. And I remember when Al Gore accepted the results, when he had to declare that his opponent was going to be the new president and gave a speech where he respected what the Supreme Court had decided in Bush V Gore, lots of people congratulating him for seceding to the peaceful transition of power and being willing to accept a loss.
And I remember thinking at the time, well, that's not really worthy of congratulation. That is a baseline for our system of government, of course everyone would fall in line behind that principle. And I still don't think it's worthy of congratulation, but I am much less likely, as most of us are now, to take that for granted and to see more clearly how the character of the individual does matter greatly to the way that the processes play out. And so this is a really stark contrast to that election that was extremely contested and where there were actual legal claims that could have been raised that seemed far more plausible than the ones that were thrown out here, but where there was no intimation of violence or second guessing the certifications, once everything had been said and done through legal processes.
Rosen: [00:05:28] Michael, this week the House introduced Articles of Impeachment against the president of the United States for incitement of insurrection. You've just studied the history of impeachment in your new book, "the president who would be King." Before turning to the factual question of whether you think the president's conduct meets the standard of incitement for insurrection, tell us, is the charge of incitement of insurrection the kind that the framers were concerned about or would have considered impeachable? And then also address some of the technical questions about whether the framers contemplated a trial of a president after he left office.
McConnell: [00:06:06] Well, I don't think that the way that the House is drafting the Articles of Impeachment is as very wise or careful or lawyerly, this is not the way they should be written. But I don't have any doubt that the conduct underlying it is an impeachable offense. There is a misunderstanding that high crimes and misdemeanors refers to things that are in the United States criminal code. And there's some argument for that, and there have been, people have been arguing that by the way, and contested impeachments way back to the early 18 hundreds.
So, it's not a new argument, but I think it is not true -- I think the framers deliberately adopted language from British precedent that was not tied to what could be actually a criminal conviction in court. The charges against Warren Hastings that were going on at the time of the foundation of the Constitution were not primarily criminal in nature. The idea was to allow impeachment for very serious, grave misconduct. Not for policy differences, not for partisan differences, not for mismanagement, but for very serious, grave misconduct. And it's hard to deny that egging on a mob to take over the Capitol and prevent the proper recognition of properly cast votes would fall into that category.
Rosen: [00:07:42] Cristina, your thoughts about whether or not incitement to insurrection, if it were proven, and we'll turn to that question in a moment , constitutes an impeachable high crime and misdemeanor, as well as any thoughts about those technical questions about issues raised by a trial after the president leaves office.
Rodriguez: [00:08:00] So, I don't think there's any question that if it were proven that actual engagement and insurrection, including by deliberate incitement of a mob to attempt to undo the counting of votes and to attack the coordinate branch of government would be a grounds for impeachment. But I also think a relevant question for Congress is whether the president's behavior just short of that, absent proof that that actually occurred under whatever legal standard you're going to apply, is grounds for impeachment. And I would contend following from the impeachment we just went through that that it most certainly is because it demonstrates a contempt for the system of government as a whole, and is part of a larger effort to undermine the very integrity of our electoral system and the ability to hold the president accountable in every way.
It's an attempt to evade that altogether. Whether or not it's permissible to try him after he's left office, I think is a subject of debate on which there is conflicting evidence. And it's obviously something that, for which there is no clear precedent when it comes to an impeachment of this sort. The reason for doing it is clearly because conviction would mean that he would no longer be eligible for office.
And I do think many people, across the political spectrum, now see that that is something of an imperative for a person who's willing to do all of the many things that this president has done, culminating in what happened last week. To possibly be voted into office again, is a grave threat. A real, grave threat to our system and to our wellbeing as a country . Whether or not that would hold after a conviction and whether or not a conviction is actually conceivable is an entirely different question. The possibility that a conviction won't be achievable is not a reason not to proceed with impeachment because the impeachment itself puts on the historical record that what has happened here is extraordinary and something that ought to be condemned by the members of Congress, if not in self-defense and in defense of the constitutional system.
Rosen: [00:10:12] Michael, now let's turn to the question of whether or not the president committed incitement insurrection, both under a constitutional standard and under the legal standard, which as the Brandenburg case reminds us, requires that speech be intended to and likely to cause imminent violence. The House's Articles of Impeachment, quote, the president's statement in his speech, on the elipse, "if you don't fight like hell, you're not going to have a country anymore." And say thus incited by President Trump, members of the crowd he addressed mobbed the Capitool. So two questions for you. First, for a Senator ruling on the incitement charge, do you think the incitement standard is met? And then if the president were to be charged in a criminal court with incitement, would his conduct meet the Brandenburg standard?
McConnell: [00:10:59] Well, I think the criminal case is difficult. I think if this, if you were actually tried in a criminal case with incitement that you'd parse every word that he said, and it's -- Brandenburg sets a very high standard. I just don't think that has anything to do with whether he has done something that is impeachable.
I think it was foolish for the House members who drew up this article, these articles of impeachment to word them in ways that get us talking about Brandenburg, because, you know, that's not what impeachment is about. And I think they could have worded it in ways which were unmistakably true as a factual matter and unmistakably impeachable as a constitutional matter.
Rosen: [00:11:48] I am moved to ask, how would you have worded it if you were trying to achieve that goal?
McConnell: [00:11:52] Well, I think there were three basic things that President Trump has done that are serious misuses of his presidential position. The one was to try to frustrate the proper registration and the recognition of the electoral results. And here I do not refer to his challenging them in court. He had a right to do them. I think he was wrong on the merits, but lots of people in court are wrong on the merits. Usually half of them in every case. But once decisions had been made, to try to pressure election officials like the secretary of state of Georgia or the legislators in Wisconsin, to disregard the vote after the proper -- after all the channels for proper challenge or were completed , was wrong.
And then secondly, to egg on a crowd, whether it's technically incitement or not, he encouraged the crowd to march on the Capitol, under circumstances where it was reasonably foreseeable that violence was going to break out . And that may not be technically incitement, but it is still deeply wrong for the president to do that.
And third, he has a take care clause, responsibility to protect the law. For him to sit back for several hours when this is taking place and not even make a clear call for his supporters to back down when his own supporters are calling to hang Mike Pence, right? Members of Congress are phoning into his aides saying that they were in fear for their lives, and he doesn't even use his influence with the crowd to get them to back down ... it's just an unbelievable dereliction.
Rosen: [00:13:53] Cristina, same three questions to you. First, did the president's conduct meet the constitutional standards for insurrection? Second, would it be incitement in a criminal trial? And then if you were drafting the Articles of Impeachment, how would you draft them differently?
Rodriguez: [00:14:09] So I think with respect to the first two questions, I quite agree with Michael that the standards are high and whether the president had the appropriate mens rea or the approach the standards required to show insurrection is difficult to say and probably would be difficult to win a prosecution on those grounds.
But that is beside the point to your third question, which is really what we should be debating. And I doubt very much, though we don't know for certain, that criminal prosecutors will pursue the president once he's out of office for his conduct. On the question of impeachment, I think one of the things that we can see from what Michael just said about the president standing by and not trying to stop his reporters, is a feature of his character that the last impeachment also brought to light, which is that his concern is for himself and his interests alone.
He is not concerned for the interests of the country and has no conception, I don't think of the public good. That is not a description of a ground for impeachment, but it is a way of understanding all of his behavior and why, if there is behavior that rises to the level of an impeachable offense, it is in the interest of the nation to get rid of him or to believe that he will only persist in doing those things that he can get away with because he cares only about his self-interest. And as we both said, his willingness to lean on government officials to try to change the outcome of an election, plus his exhortation of his supporters to attack Congress, whether that rises to the level of incitement or not, both of those reflect contempt for the system and a willingness and an effort to undo the system of elections that power our Constitution and make sure that we continue to have a democracy.
And on those grounds, I think he can be removed from office . Much of what proceeded things like the phone call with the secretary of state of Georgia are behaviors or actions that we can debate as violations of norms. I think many of the cases that were filed, if not the vast majority of the cases that were filed, were frivolous and reflect egregious infringements of norms of accepting defeat in a presidential election, particularly as the losses build and the willingness to bring cases to court where there is not a shred of evidence and only just Twitter, conspiracy theories or belief that the election must have been rigged demonstrates a form of corruption that's dangerous, but not the sort of behavior that rises to the level of high crimes and misdemeanors. Certainly behavior that should be discouraged and criticized, and I wouldn't frame it in the way that Michael has, as the, you know, the right of the candidate, especially where there is nothing to the dozens of suits that were filed and that becomes clear over time. But it's really the later events, which you and Michael have highlighted, that justify what the House is doing, even if they're not articulating the grounds in as legally sound a way. I think they're trying to do it quickly. You know, they don't have weeks to come up with Articles of Impeachment and are trying to make a larger statement about the threat that the president made against the coordinate branch and against their very legitimacy and that's why they look the way they do.
Rosen: [00:17:51] The Articles of Impeachment also cite section three of the 14th Amendment, which says that no person shall hold any office, civil or military under the United States, who having previously taken an oath to support the Constitution of the United States shall have engaged in an insurrection or rebellion against the same or given aid or comfort to the enemies thereof. Some members of Congress are arguing that whether or not impeachment succeeds, section three should be invoked to deny the president the right to hold office. Michael, tell us about the history of section three. What was it attempting to achieve? And if it were in both today, how would it work? Some have said that one House could pass a resolution, others that both and others that the president would have to sign a law passed by Congress and others that the courts would simply interpret the disqualification on their own. What's your view?
McConnell: [00:18:50] So, Jeff, I don't know and I don't actually think anybody else knows either. Section three of the 14th Amendment has a very specific history and context. It's it's right after the Civil War, it's referring to the people who were in open rebellion, you know, they called themselves rebels. It was a civil war against the United States. It has never been invoked since then.
The amendment itself does not say who would declare that people were in insurrection because there wasn't any doubt. Everybody knew who they were talking about. And so is this people who are convicted in court of the crime of insurrection? That seems the most plausible. The idea that Congress, by some kind of, you know, majority vote has the right to declare that someone's in insurrection and therefore can never hold office strikes me as committing somewhat the same error that those who thought the Vice President Pence could just dispense with the electoral vote was. It's concentrating too much power and political figures to undo elections.
You know, if the mere majority of houses of Congress can decide that, you know, folks from the people of the United States elected office, aren't going to hold office, that seems rather extreme. There's elsewhere in the Constitution that requires a two-thirds vote to expel a member of Congress for misconduct.
And so to read this sort of extreme procedure into a provision of the Constitution that's never been used, never been applied, you know, has no precedent to support it, seems to me to be unsupportable, when other perfectly straight forward constitutional means are available.
Rosen: [00:20:46] Cristina, your thoughts about the history and purpose of section three, how it would apply in practice, who would trigger it? And do you share Michael's concerns about congressional triggering or not?
Rodriguez: [00:21:00] I definitely share Michael's skepticism. I think it's a creative argument and the historical analogy is both immediately clear and intriguing, but also demonstrates why this is a route down, which we are unlikely to go because the provision was there for a very particular historical reason, in response, as Michael says, to open rebellion, seccession, war and declarations of loyalty to seceding power. We don't have anything even coming close to resembling that in these circumstances. And what I would focus on is the difficulty of having anything, approaching an objective determination that this individual or any other individual was in insurrection against the United States. I don't know, absent the kinds of historical circumstances that existed after the Civil War, that you would be able to come to a conclusion about that. And I'm deeply skeptical that the courts would actually get themselves involved in this and decide, you know, especially absent a criminal prosecution, but decide themselves that someone like President Trump had committed the offenses that make him ineligible for office under this amendment that was clearly intended to address a completely different historical circumstance, and then preclude that person from running for office, that seems dangerously close to the sort of political question that courts aren't going to want to resolve.
And then that leaves you with the congressional solution. And again, especially in our polarized times, the notion that you would have a majority of Congress disqualifying someone out of a belief that they don't believe in the country or don't--would be anathema to the system, is just a recipe for back and forth among hyper-partisan actors, who would believe the same thing about someone who hadn't done nearly the same as President Trump, but who conspiracy channels suggest are terrorist threats to our nation.
So, I think that it's an interesting debate to be having, but I don't think it will result in anything. But impeachment and removal is the path, the clear path, to addressing circumstances like this.
Rosen: [00:23:10] Michael, another fundamental constitutional question about Congress's role has arisen about whether or not it can validly reject electoral votes submitted by a state when there are not competing slates submitted after the state has certified its vote.
Does Congress in your view have a substantive role to play in objecting to certified electoral votes? And what do you make of calls by some that the senators who led the effort to question the certification, including senators Hawley and Cruz should resign or be expelled?
McConnell: [00:23:51] So, the role of Congress in the electoral college count looks pretty ministerial under the Constitution. We're talking here about the 12th Amendment. The 12th Amendment leaves the selection of electors to the States, especially the state legislature. So the state legislatures decide how they will be chosen. The electors then meet , they vote, they send their votes to Washington, and all the 12th Amendment says about Congress is that they meet together, both the House and the Senate together and in the -- I'm quoting now -- in the presence of the Senate and the House of Representatives, they open the certificates that's from the electors in the various states and the votes shall then be counted, and the person having the greatest number of votes for president shall be president. It doesn't even actually say the vice president counts them. All the vice president does is open them, and then they're counted.
Now, it so happened that in 1876 something, there was something unexpected. And that was that in three states, there was genuine uncertainty about who was, who were elected as electors. And so there were competing slates. And so what to do? The 12th Amendment doesn't really tell us that and it was a mess. And Congress tried various things, and then 10 years later, they pass the Electoral Count Act, which provides that whenever the governor certifies a slate of electors by a certain date, that that will be unchallengeable. But presumably for others, the Electoral Count Act allows challenges. Well , I do not think that that gives an opportunity for senators and congressmen to challenge other things. But you can't say that you know, but procedurally, I suppose they can, I think substantively they're wrong to do so.
But procedurally, you know, the Electoral Count Act, lets them bring the challenge. I think it's contrary to the spirit of the 12th Amendment and to the Electoral Count act. But there you have it.
Rosen: [00:26:19] Cristina, what is your view about whether or not Congress has a substantive role to play in evaluating electoral votes when they're not competing slates? And what do you make of calls by some that the senators who led the effort to challenge the votes, including senators Hawley and Cruz should be expelled to resign.
Rodriguez: [00:26:40] So, I don't think that Congress has a substantive role to play here. If there were competing slates of electors, then there are procedures laid out for how to address that conflict.
We had nothing of the sort in this election. There were doubts cast based on allegations about the legitimacy or validity of the votes from these states, but no remotely plausible path to actually contesting their legal validity. And so it was very clear that what those who are objecting to the results were doing was a stunt and their rhetoric suggesting that there are voters who believe this as justification for their raising the claim, I think is inconsistent with what they ought to have been doing pursuant to their oaths of office, which is to make clear to those voters that there is no basis for believing these things. That in fact, these votes were legally valid. And I feel quite confident that the vast majority of the people who've objected understood that and that they knew that they were engaged in political theater using disingenuous rhetoric.
Now, whether that means they should be expelled from Congress is a harder question. There is some freedom to choose whether to seat people elected to Congress. And I think it's worth thinking through whether efforts to challenge the election that were indeed disingenuous were violations of some kind of oath that would warrant not allowing them to take their seats. That is a form of disenfranchisement because you know, they were voted in the office, by the people of their states, it's a very serious thing to decide to do. And there are of course, historical precedents for that, but there are precedents like refusing to see Southern delegations from , after the Civil War, because those office holders were not elected by a Republican form of government because Blacks were excluded from the ability to vote. That's not the situation that we have here. And that's just a way of highlighting that that would be an extreme remedy for what is a political malpractice and abusive behavior. I think the people who have engaged in these challenges, especially those who took oaths to the Constitution, should be subject to censure.
They deserve the blow back that they're getting in the public sphere and by people in institutions with whom they are affiliated. But that is a very different kind of response than Congress taking upon itself to remove them from office, which I view as extreme.
Rosen: [00:29:21] Michael, tell us about the constitutional role of the vice president in counting electoral votes. Before January 6th, the vice president issued a letter concluding that he had only a ministerial role to play, and the president's efforts to get them to throw out the results of the election were not consistent with the text of the Constitution and the 12th Amendment. Do you agree or disagree?
McConnell: [00:29:45] I think Vice President Pence was absolutely correct. And you don't even have to do more than just read the words of the Constitution to see that. The vice president's role is solely that he opens the votes in the presence of the House and the Senate. It doesn't even say he counts them. The notion that he exercises some kind of supervisory authority to decide whether he thinks the elections were properly administered and so forth , it's not there. That's a complete fiction.
Rosen: [00:30:15] Cristina, your thoughts about the role of the vice president and is his role purely ministerial or does he in fact have a substantive role to play?
Rodriguez: [00:30:22] I couldn't have put it better than Michael. I don't think there's any ambiguity about this. There is no role for him to play in judging the votes. We've talked already about the possibility, and it's happened before in our history, of different slates of electors coming to Congress, but even then, it's not for the vice president to, to choose which one is going to be recognized that would effectively give the vice president the power to decide the presidency. And in our day and age, when he runs on a ticket with the president, that would be a bizarre way of approaching or creating a process. And so it is a ministerial position and it long has been.
Rosen: [00:31:00] Well, let's talk now about the role of the electoral college and the electoral count act more generally. Michael, team conservative, of which you were a distinguished part in the National Constitution Center's drafting project, proposed replacing the electoral college with a national popular vote. Do you personally think that's an urgent national priority? To what degree did the fact that several recent candidates have lost the popular vote, but won the electoral college contributed to the current election vexations? And are there any reforms of the Electoral Count Act that you think would clarify things.
McConnell: [00:31:33] I do favor a national popular election. And by the way, with rank choice voting to eliminate the problem of runoffs. But you leave out an important part of this, which is candidate selection, which I think is actually a worst part of our system by far than the electoral college. Our current system of having primaries in which people, you know, vote kind of frivolously to send a message rather than actually choosing people who would be responsible stewards of the office. I think it's a really terrible way to choose presidents. And our proposal was to use the state legislatures as effectively nominating conventions and that they would choose the candidates. It's an elaborate proposal. I won't explain it here. But the purpose is to try to find candidates, two candidates, usually, who would have the kind of experience and temperament to run the country in the interest of the country, rather than people who can just raise money and make a big splash.
But I don't actually think the electoral college is to blame for our current problems. I'm not a big fan of it. We would never, if we were a country, create an electoral college today, it's just something we are stuck with for historical reasons. It did have, does have some advantages though, in that it does require candidates to travel around the country and not just focus upon places with high populations, mostly the coasts , but try to get votes all over. And also I think the de-centralization of election machinery that the electoral college brings about turns out to have great advantages. If everything were centralized in Washington, it would be under the control of somebody.
And I don't trust anybody. So the de-centralization has been good. It has, I thought, so heartening to see the way election officials and judges, both state judges and federal judges taking their oaths of office seriously, and administering this election without seeming favoritism to their own party. It's really -- and to have so many of them involved , means that it would be very difficult for a conspiracy at the center to be able to distort the decisions of the American people.
Rosen: [00:34:12] Cristina, your thoughts about any reforms that you would propose to the electoral college to candidate selection or to the Electoral Count Act or other electoral reforms in the wake of the events of January 6th.
Rodriguez: [00:34:29] Like many people, I would love it if we could get rid of the electoral college. As Michael suggests, and he writes about this in his book, the electoral college was a creation of the framers who neither wanted a president elected by Congress, they wanted some independence, nor did they want a president elected by the people who they distrusted. But, I think as a political culture we've moved past their extreme distrust of the populace. We're much less elitist as a country than they were in that sense. And so I think popular election is really the only way that that makes sense. And I, contrary to Michael, I do think that the electoral college has contributed in some way to the distrust that has grown amongst people, because it has exacerbated the sense among Democrats in particular, that we have a system that privileges minoritarian interests, and that it's hard for the majority of the population to actually have their will expressed. It worked out well this time. There was not the gap between the popular vote and like electoral college that we saw in 2016 or 2000.
I do remember thinking before 2000 that the next time there was a discrepancy between the two, that that would be the end of the electoral college, but that's of course before it was the law school understood it's not that simple to get rid of the electoral college. But if there were a way to do that, I think that would dramatically improve our system and would encourage the kind of campaigning that Michael is expressing the value of, which is campaigning to all the people. Where California matters, where Texas matters, where New York matters in ways that large population centers don't really seem to, at least in the way the calendar is set up. And yet I also think that Michael's suggestion of thinking of ways to reform our primary system, maybe by having rank choice voting, so you don't get extreme people. When you have a field of candidates full of lots of mainstreamers, whose votes are split, and then you have the extreme person come through who appeals to the outer edges of the party, those kinds of reforms, which I think are easier, would be easier to realize then an amendment to the Constitution, are worth considering, and that could have a demonstrable effect on the political culture that we've been discussing. And in some sense, lamenting the the erosion of.
Rosen: [00:37:01] Michael, let's talk about media filter bubbles and disinformation. A Fox News poll released in December found that 77% of those who cast ballots for President Trump said they thought the election had been stolen from him. Just 10% of Democrats agreed. What are your thoughts about the role of cable television and social media in spreading disinformation through filter bubbles and echo chambers, and what, if anything, can be done about it?
McConnell: [00:37:31] I do think that our media culture has been a major part of our problem and it is splintered so that we now have lots more different channels. And that seems good. And it looked more democratic at the beginning, so that we don't just have three networks that basically were all the same and major newspapers that were all pretty much the same. But the effect of this has been that that there very few, maybe zero, institutions left that command trust among the entire population.
Now , the mainstream press I have to say has not covered itself with glory. I think it has been too inclined to align itself with the democratic party and then to blame the people for starting to distrust them. I dearly wish that newspapers and other news organs would do a little bit of maybe just reporting the news and not just not constantly telling us what we're supposed to conclude from that and making themselves into partisan organs. The fact that people don't know where to go, even I, you know, things happen and I'll say to myself, well, I wonder if that's true, that's really important, but I think I'll wait a couple of days and find out if it's actually true or not. And this is a very serious problem for a democracy.
Rosen: [00:39:10] Cristina, your thoughts about the role of media companies, including social media companies, in spreading disinformation. And what, if anything, can be done about it?
Rodriguez: [00:39:24] I do think that splintering is a serious problem, even though the creation of more outlets has in a sense democratized both the production of, and the access to information.
But it's a little bit like teaching a class where students don't read the same thing. If they read two different essays, you can't have a common discussion. And the fact that we have different groups of people who affiliate with different political parties of reading entirely different sources to understand what's going on in the world means that we don't share a reality that allows us to put pressure on, you know, our lawmakers or the people who represent us to resolve the same reality. And that contributes to the polarization in Congress to some extent. I also think that, and this is a little bit of an armchair diagnosis of the media environment about which I'm not especially expert, but that the mainstream media, whatever you define that as, but the major networks and even the mainstream newspapers are an entertainment business and often, much more interested in things that people will click on and incendiary things or sensational things that don't actually promote debate or more importantly, in some sense acknowledge, production, and acknowledge dissemination. Very few people will, relative to the size of the whole population, sit down and listen to a conversation like this, as opposed to reading a, you know, a salacious headline about how the you know, President Trump is destroying the country full-stop.
So, I think that is also a problem that I have no sense of how to solve because it is related to market incentives and what people prefer to read and see, which is things that will entertain them as opposed to things that necessarily inform . And so that's not an answer that provides a solution. But if, but if I may, and this might be a little bit hokey, but my boss , my old boss, Justice Sandra Day O'Connor, one of the things that she did in her retirement was begin a campaign to teach civics in schools. And she, though not she herself, but the people who she partnered with to do this have created an online civics education curriculum for children, which I actually think is a noble venture and born out of a desire to help people understand that we have a system in common that we need to protect and cherish. And it depends on sharing certain, very basic values and sharing understandings about the reality that we live in.
And that requires us to get out of our echo chambers, but also to try to understand the levers of power. And, maybe that holds some long-term promise, that kind of resurrection of the sense of civic participation as being something in which we should all engage, which requires listening to other people. But that sounds incredibly idealistic and perhaps not achievable, but maybe worthy of expression.
Rosen: [00:42:30] It is extremely worthy of expression and far from being idealistic. It's the essence of the solution. We're so pleased to work with our friends that iCivics founded by Justice O'Connor to promote civic education. And I'm thrilled to share with both of you and with We the People listeners that last week, nearly a half million people a day signed on to the interactive constitution to learn about the 25th amendment smashing the previous record, which had been 165,000 hits a day . Interest in civic education about the constitution has never been higher and that is such an honor for the National Constitution Center to work with iCivics and other groups in spreading constitutional light.
Well, it's time for closing arguments in this important and illuminating discussion. Michael, the first one is to you: how well has the Constitution worked in carrying America through the challenging events that followed January 6th, 2021? And if you had to propose a single reform for strengthening one of the guardrails of the Constitution to protect the rule of law, what would it be?
McConnell: [00:43:47] So, I think the conduct of the election was a real triumph for the system under very difficult circumstances, driven by COVID that led to unprecedented numbers of mail-in ballots, which do present a risk that in-person voting doesn't present, but I think we came through this remarkably well, and I say that not because there might not be fraud. I was actually paying attention to the evidence and struck by how little evidence there was. I think it's actually good that some of Mr. Trump's lawyers were able to expose how little support there was for their case in court, so that Americans were actually paying attention should have come from out of those proceedings reassured that the election was really quite, almost unblemished.
I think Attorney General Barr probably put it best when he said that, you know, any level of fraud did not rise to affecting the election results, but it sure is hard to see last Wednesday's results as the system working. It was a horrible affair with members of congress's lives, apparently at risk, a police officer being killed with members of Congress cowering in fear for their lives from a mob.
One thing we certainly need to do is to improve security procedures for Congress and to be alert for this sort of thing in the future. But the real problem, the underlying problem here is cultural. And that is that, you know, our country really needs to draw back from the hyper-partisanship in which people hate each other more than they love the country.
And that is not something that they're going to be any reforms that can accomplish. I just hope that those horrible events last a Wednesday might instill in people a desire to bring the country together again.
Rosen: [00:45:52] Cristina, the last word is to you. Has the Constitution worked in the wake of the historic events of January 6th? And if you had to propose a single reform for strengthening one of the guardrails to protect the rule of law, what would it be?
Rodriguez: [00:46:11] So, I think the electoral system, as Michael suggested, formed quite well and that the secretaries of state throughout the country, poll-workers , voters, all collaborated in a way that produced an election that we, I believe, should be reasonably proud of. I think the point that I've heard a lot in analysis of the election that I think is a way of making sense of all of the dire scenarios that were played out in advance, was that is persuasive to me, is that had the election been much closer than it was, had it come down to a single state and electoral college, for example, the kinds of things that the president and some of the supporters tried to do might've had more traction and could have led to much more serious conflict and much more reasonable doubt on both sides of the election contest about the outcome. And for that reason, I think that an important--it's not a single reform, but set of reforms i s to follow through with the kinds of reforms, to the systems of elections, to the way votes are cast to the way they're counted to the way people are permitted to register.
All of those things are things that deserve attention to ensure that the systems work even better than they do. But then to the bigger question, I don't know if this is the bigger question, but maybe it's the more immediate question about what to do about what happened on January 6th. And I think this is a different way of putting Michael's point that there's no reform to the Constitution short of switching over to a parliamentary system that would prevent what happened. If you have a person with the character of our current president who is running in the election and you have, more fundamentally a political culture that is as sick and divided as ours, and it's a combination of the polarization, the disinformation climate, the proliferation of conspiracy theories, the absence of overlapping consensus, which seems to be growing larger and larger, or the overlapping consensus, vanishingly small as the years go by that is our real fundamental problem. The inability to see commonality in one another and the fact that people have alternate realities that they truly believe in. Evidence not withstanding.
Those are problems that are not going to be fixed by constitutional reform. But they are related to the kind of political leadership that we have and the way that people talk about politics in our society. And, those are those are things that need rejuvenation.
Rosen: [00:49:03] Thank you so much, Michael McConnell and Cristina Rodriguez for modeling civil and illuminating constitutional discourse about the remarkable moment in constitutional history that we're all living and learning about together. Michael, Cristina, thank you so much for joining.
McConnell: [00:49:23] Thanks for having us.
Rodriguez: [00:49:24] Thank you very much.
Rosen: [00:49:33] Today's show was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Mac Taylor and Lana Ulrich. Please rate, review and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who's eager for constitutional enlightenment and who is not during these remarkable days.
And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, engagement, commitment, passion, love of education of people across the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org forward slash membership. Or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate.
On behalf of the National Constitution center, I'm Jeffrey Rosen.