0:00

Hello

0:03

friends, I'm Jeffrey Rosen, President and CEO

0:05

of the National Constitution Center, and welcome

0:07

to We the People, a weekly show

0:09

of constitutional debate. The National

0:11

Constitution Center is a nonpartisan nonprofit,

0:14

charted by Congress to increase awareness

0:16

and understanding of the Constitution among

0:18

the American people. In

0:20

this episode, I'm delighted to share a

0:22

great conversation I had recently with Alison

0:25

LaCroix and William B. Allen. Alison

0:28

LaCroix is author of The Interbellum

0:30

Constitution, Union Commerce and Slavery in

0:32

the Age of Federalisms, and

0:34

William B. Allen is editor and translator of a

0:37

new edition of Montesquieu's The Spirit of the Laws.

0:40

We explored constitutional interpretation during

0:42

the interbellum period before the

0:44

Civil War and the intellectual

0:47

foundations of constitutionalism

0:50

from the founding until today.

0:53

Enjoy the conversation. Welcome,

0:56

and thank you so much for joining

0:58

Alison LaCroix and William

1:00

Allen. Alison, congratulations on

1:03

your new book, The Interbellum

1:05

Constitutions. Tell us about

1:07

your argument in this very important

1:10

work, which is that this was

1:12

a time not of an age

1:14

of federalism, but federalisms, as you

1:16

put it, and that

1:18

the conventional narrative of this

1:21

period oversimplifies the deeply complex

1:23

relationship of federal, state, and local

1:25

authority that was being worked out

1:27

in the courts and

1:29

in the political arena. Thank

1:32

you, Jeff. Thanks very much. It's such a

1:34

pleasure to be here. Let me say

1:36

that first. Yes,

1:38

I think just to clarify or to kind

1:40

of explicate a little bit for the audience

1:42

where we are too in sort of a

1:44

time period here. My

1:47

focus in the book is this period

1:49

between the revolution, what we think of as

1:51

the founding period, and the

1:53

Civil War and Reconstruction, which Eric

1:56

Foner, among other historians, described

1:58

as the second founding. And I

2:00

think we spend a lot of time

2:03

in sort of public discourse and legal

2:05

discourse, historical and theoretical, talking

2:07

about those two periods, and

2:10

they're clearly enormously important transformational.

2:13

But then there's this period in between, and that's

2:15

what I was drawn to in this book coming

2:17

off of my first book, which focused on the

2:19

founding. For this book, I wanted to

2:21

really dig into this period that I call

2:24

the interbellum period between 1815 and 1861. So,

2:28

1815 is the end of the War

2:30

of 1812, which is one that

2:33

often flies under the radar, but is really

2:35

important in terms of American politics,

2:37

society, law, culture, kind of

2:40

nation building. And one

2:42

of my students really aptly once said

2:44

this period is treated by a lot

2:46

of people like constitutional flyover country, where

2:49

we know something important happens before and

2:52

something important happens after. What

2:54

happens in the middle is kind of, you know, interesting

2:56

from a distance, we don't really need to dig

2:58

in. So I wanted to really dig

3:00

in and look at the ways that it's

3:03

not a period that is only about the coming of

3:05

the Civil War. I think we tend to look at

3:07

this period when we do and say, this

3:09

is when the Civil War became inevitable,

3:12

or this is when the irrepressible

3:14

crisis, irrepressible conflict took shape.

3:16

All of that certainly is

3:18

plausible. But I

3:21

think digging into the material and really the

3:23

people, because it's written in a

3:25

more narrative way, suggests there's

3:27

actual change going on. It looks different

3:30

from the founding period. And it looks different from

3:32

what we think of as the Civil War and

3:34

Reconstruction period, especially in terms

3:36

of structure, governments

3:38

interacting, people trying to figure out which

3:41

government they want to regulate, people thinking

3:43

that different governments will actually make different

3:46

rules. So that's the federalism's plural

3:48

in the title. Wonderful.

3:51

Such an important contribution.

3:54

And so looking forward

3:56

to digging into the people and the eras

3:58

that you've been in. discuss so

4:01

powerfully to illuminate what

4:04

these federalisms can teach us. Bill

4:07

Allen, you have written so deeply about

4:09

the founding and post-founding

4:12

era. You

4:14

have a speech, The Constitution as Critical Inquiry,

4:16

which you delivered in 2021, where you

4:19

argue that the Constitution reflects a series

4:22

of historical and political

4:24

fights and settlements, and in that

4:26

sense is a dynamic historical process

4:28

rather than a fixed document. Tell

4:30

us more about that argument and

4:32

its implications for constitutional interpretation. Thank

4:36

you, Chair. First of all, thanks to

4:38

the Center and thanks to Professor

4:40

Lacroix for giving me the

4:42

opportunity to spend a little time with her.

4:44

Her presentation and summary of her

4:47

book actually answers your

4:49

question to me about my presentation.

4:52

And I think you can immediately see that what

4:54

I refer to as the complex

4:56

dynamics in that period

4:58

between the founding and

5:00

the Civil War describes

5:03

quite aptly what she's describing,

5:05

that there are lots of

5:07

transactions taking place, political transactions.

5:10

And those need to be variously studied

5:12

and identified. To give just one example,

5:15

going back to the beginning of it, 1815, the end of the war,

5:18

the Treaty of Ghent alone represents

5:21

a very important transaction dealing with the

5:23

question of how the Constitution should be

5:26

understood and what its promises mean. And

5:28

the very fact that John Quincy Adams

5:30

was in the middle of

5:32

signing a treaty that guaranteed

5:34

the return of a compensation

5:36

for slaves is sufficient

5:38

to tell us that

5:41

something important was happening. But the fact that

5:43

the treaty was so constructed that he ended

5:45

up having it arbitrated by close friends of

5:47

his from Russia also shows

5:50

the politics of the moment and

5:52

the ways in which we were negotiating the whole

5:54

question of who's responsible for what and which decisions

5:56

are going to be made with what, moral and

5:59

political impact. So this

6:01

presentation that you're citing is

6:03

designed precisely to provide a

6:05

theoretical foundation for the important

6:07

historical work that Professor Lacroix

6:09

has published for us. Super.

6:13

It really is a unique opportunity to convene both

6:15

of you to

6:18

focus on this crucial period right

6:20

after the founding and what it

6:22

can teach us about constitutional interpretation.

6:25

Alison, if I may, why

6:28

don't we begin with the

6:30

Marshall Court? The conventional interpretation is

6:33

that John Marshall, starting in cases

6:35

like McCullough and Maryland and then

6:38

most famously Gibbons and Ogden,

6:40

took a relentlessly nationalistic

6:42

approach of liberal construction,

6:46

rejecting Jeffersonian strict constructionism and always

6:48

favoring national power over states' rights.

6:50

You argue that this is far

6:52

too simplistic. You

6:55

focus on Justice William Johnson, the first

6:57

great dissenter, and talk about how

6:59

in less known cases it was really a complicated

7:01

mix of federal, local, and state

7:03

power that guided the court. Tell

7:05

us more about your findings. Yes,

7:09

great question. And I think this

7:11

is an area where for anybody

7:13

in the audience or broader,

7:16

more broadly in the conversation, in law

7:19

school but also political history, as you said,

7:21

Jeff, there's this account that, well, you

7:23

have John Marshall as Chief Justice

7:26

setting out this nationalist agenda and it's

7:29

very political. I think that's another interesting

7:32

connection between this period and

7:34

our current moment because there's

7:36

a lot of talk in this period about the

7:39

justices and the court being political and

7:41

criticisms of the court and the court is being too

7:44

embroiled in politics. And that has lots of interesting connections

7:47

to our current moment. But

7:50

yes, I think one thing I

7:52

wanted to do was to say,

7:54

again, in law school, there's this

7:56

sort of very internalistic doctrine story

7:58

about constitutional law. law that's

8:01

very detached from politics or society

8:03

or economics or nitty-gritty debates

8:05

people might be having in the real world.

8:08

And John Marshall and the Supreme Court and

8:10

the Commerce Clause are at the center. So

8:12

basically the idea is Marshall and

8:14

the court decide a number of cases where they say

8:17

the federal government has broad

8:19

power to regulate commerce. And

8:21

in many cases, that means states can't

8:24

regulate. That's the kind of big picture.

8:27

But one thing I wanted to

8:29

do, partly because I approached this

8:31

material in my historical training as

8:33

an intellectual historian, was to say,

8:35

hold on a minute, let's remember

8:37

how unfamiliar or how

8:40

strange the concept of commerce was in

8:42

a sense of saying, don't assume what we now

8:45

know, which is, oh, in everything from health care

8:47

to you name it, the Supreme Court's going to

8:49

talk about something called the Commerce Clause. Instead, let's

8:51

try to think about what it meant at the

8:54

time. And so that's

8:56

part of the project that the court took

8:58

up. We have this sense

9:00

also that John Marshall comes down

9:02

off the mountaintop and has his project and

9:05

thus forward with constitutional law. But

9:08

as you said, Jeff, with other justices on the

9:10

court who sometimes we

9:13

read out of the record, it's all Marshall and then

9:15

a few other people, well, Justice

9:17

William Johnson is a really important

9:19

figure here. He's confounding in lots

9:21

of ways. He's a South Carolinian,

9:24

he's a slave owner, he's also

9:26

a nationalist. And

9:28

so one of the things I try to look

9:30

at in the book is the cases before the

9:32

Supreme Court as the Supreme Court adjudicates

9:34

Commerce Clause cases, because you have these

9:37

cases where the Supreme Court justices are

9:39

out riding circuit as they did then.

9:41

So Marshall is sitting as

9:43

a regular federal court judge in Richmond,

9:46

Johnson is sitting as a federal court

9:48

judge in Charleston, and they're hearing trial

9:50

court cases. Many of

9:52

which involve commerce in

9:55

the really rich sense that I'm

9:57

trying to recapture. So Johnson Johnson

10:00

gets a case that he's instrumental in

10:02

bringing before his circuit court. What

10:04

do we think when South Carolina passes a law that

10:06

says all black sailors have

10:09

to be jailed, whether they're British subjects

10:11

or American subjects, they have

10:13

to be jailed in South Carolina jails while their

10:15

ships are in port? And

10:17

Johnson says that that violates

10:19

the federal commerce power. And

10:21

also, connecting to Bill's

10:23

comments, he's very concerned with the international

10:26

context as well. And there are

10:28

certain victims involved in that case because their ships are

10:30

having their crews thrown into jail

10:33

in Charleston. So it's not this simple

10:35

kind of people believe in federal power,

10:37

therefore they expand the commerce clause narrative.

10:39

And we bring in some of these

10:41

other figures and these other debates. We

10:44

see the role that slavery and migration

10:46

are playing and also international affairs. So

10:49

I think of it as commerce is

10:52

the domain or the crucible

10:54

where they have these arguments

10:56

about federalism. And we live

10:58

in the world that that created. So

11:01

interesting you

11:03

discuss Madison's

11:05

approach to federalism, the fact that

11:08

he wanted a national veto on state laws

11:10

at the convention. He lost that and considered

11:12

that his greatest defeat and then had

11:15

a sophisticated

11:17

nuanced approach to sovereignty ever

11:19

since. Bill, Alan,

11:21

you talk about Madison's

11:24

evolution on the question of the national

11:27

bank as an example of how the

11:30

debate between strict and loose construction is

11:32

too simplistic. Having initially

11:34

opposed the bank as being

11:36

beyond Congress's enumerated powers, you

11:38

note he came to accept

11:40

its constitutionality because Congress

11:42

and practice and the president had come

11:44

to accept it. Tell us more

11:46

about that evolution and what it

11:48

says about Madison's approach to how to interpret the

11:51

constitution. So I'm glad you

11:53

asked that question because that's exactly what I was

11:55

thinking about as Professor LaCroix was speaking. Remember

11:59

what Madison did. in deciding to approve

12:01

the Second Bank of the United States.

12:04

He took the position that his

12:06

previous opposition to a national bank

12:08

was incorrect, not because he originally

12:11

judged it incorrectly, but because those

12:13

who approved the original constitution decided

12:15

differently than he did. And

12:18

so he argues in 1860, well, that's

12:20

the authoritative interpretation, and

12:22

I as president will follow that. So

12:25

he reversed himself. We can call it

12:27

nuance, but actually it's very clear, very

12:30

clear, concrete, and political. And

12:33

that's what I like about Professor Lacoste's work,

12:35

because it underscores that these are decisions being

12:37

made in the moment by

12:39

people who actually have points of

12:42

reference that are politically significant and

12:44

therefore do not necessarily represent what

12:46

we call today flip-flopping. And

12:48

to give just one more example of that, take Craig

12:50

v. Pennsylvania, 1842, the other famous

12:54

dissent by Justice Taney in that case, in

12:57

which Taney disagrees with a

12:59

decision made about rendering a

13:01

Maryland slave from Pennsylvania back to Maryland,

13:03

though he favored the outcome, but disagreed

13:05

with it because he didn't think the

13:08

federal government should have that power at

13:10

all. He wanted a decision that denied

13:12

any federal authority. And remember the

13:14

whole question doesn't only involve

13:16

the Fugitive Slave Clause, but the

13:18

Commerce Clause. So the

13:20

very issues that we're talking about

13:23

were at stake in his dissenting

13:25

from an outcome that he approved

13:28

because he was arguing over the

13:30

appropriate institutional and constitutional framework for

13:32

accomplishing these ends. Alisson,

13:35

what does this say,

13:37

first of all, about Madison's approach to

13:40

originalism, if he didn't

13:42

believe that the meaning should be fixed by the

13:45

original public meaning of the tax or even

13:47

his own understanding of that, but that practice

13:49

would come to be relevant?

13:51

And then I want you to tell

13:54

us about the central

13:57

question of sovereignty.

14:00

I have to say that ever

14:02

since law school, the first

14:04

weeks of law school, I had a, it

14:07

has to be a debate with my dear friend

14:09

and teacher, Akhil Amar about who was sovereign at

14:11

the founding, the people of the United States or

14:13

the people of the several

14:15

states or both. I

14:18

thought that Madison said that there was a

14:20

dual sovereignty in Federalist 39. Akhil said that

14:23

the national people were sovereign from the beginning.

14:25

I think your account seems to suggest that Madison's

14:29

approach really was adhered to by many

14:31

people in the interbellum era, and it

14:33

was a complicated mix of sovereignties that

14:36

really prevailed with different

14:38

people reaching different conclusions in

14:40

different cases. Yes.

14:42

I mean, I think one of the

14:44

most striking things about the period that

14:47

makes it really fascinating for us and

14:49

for the way we think about constitutional

14:51

interpretation today, including originalism, is

14:53

that Madison was around for much of this period.

14:55

He lived till 1836. Now,

14:59

I think we sometimes have this construct

15:01

of what would Madison think or say.

15:05

People had it then, and in many cases, they

15:07

wrote to him to ask and he wrote back.

15:10

There's this great exchange of

15:13

letters. There

15:15

are two waves of it, but the principal one is in

15:18

about 1830. Andrew

15:22

Jackson is president and his right-hand

15:24

man, Martin Van Buren writes to

15:26

Madison to basically

15:28

say, we would

15:31

like in constructing one of Jackson's

15:33

famous vetoes. This is the

15:36

Maysville Road veto. We'd like

15:38

to use one of your vetoes from when

15:40

you were President Madison as precedent.

15:44

They've actually already done it in the veto

15:46

message of Jackson. They're

15:48

claiming Madison's authority. That's

15:51

interesting that even by 1830, Madison

15:54

still alive but has this tremendous mantle of

15:56

authority as the father of the Constitution and

15:59

Van Buren. on behalf of Jackson, want

16:01

to claim that. So they write to

16:04

Madison and they basically say, love

16:06

the veto, love your work, can we

16:08

have more? In fact, would you draft

16:11

a constitutional amendment for us? And

16:14

Madison basically writes back in what I think

16:16

of as the, I'm James Madison and you

16:18

know nothing of my work mode,

16:20

although he's more gentle. And

16:23

he basically says, what

16:26

I thought I was saying in

16:28

this veto of 1817 from his

16:30

presidency really doesn't

16:32

have weight anymore. It's about how

16:35

people have interpreted it since. So it

16:37

connects exactly to what Bill

16:39

was saying about Madison on the

16:41

bank. So to the extent we think, I mean,

16:44

I wrote an essay sometime in the

16:46

last few months about this, basically saying Madison was

16:48

not an originalist, right? Because he's in fact saying,

16:51

interpretation happens. What

16:54

the Supreme Court in the 1950s

16:56

in the Youngstown Steel Seizure case says,

16:59

Justice Frankford calls historical gloss or

17:01

the gloss of history practice, kind

17:04

of how things are worked

17:06

through. Now, the other thing I'll say is that

17:08

I think sometimes today, we

17:11

hear this referred to as liquidation, which

17:13

is a word Madison used. So the

17:16

interbellum period is not

17:18

fly over country, but it's liquidation. And

17:20

I take some issue with that

17:23

as a description of what's going on, because to

17:25

me that implies as it's used today, the meaning

17:28

of the constitution was fixed at the

17:30

founding and people just had to give

17:32

it content and figure out what it

17:35

meant. And I would say instead,

17:37

there wasn't a what it meant in 1787 that was

17:39

necessarily clear. And in fact,

17:43

that was quite different from what it meant

17:45

in say 1830. They were actually being creative

17:49

in some ways, even as they looked to someone

17:51

like Madison for authority. And yeah,

17:53

sovereignty, boy, it's such a, it's

17:56

an endlessly fascinating topic. And I think,

18:00

And this connects to Madison at the

18:02

Constitutional Convention wanting the federal government to

18:04

have a veto, the Congress,

18:07

the Senate, to have a veto

18:09

on state laws. Because I think

18:11

they took structure seriously and thought

18:15

sovereignty clearly in the sense of

18:17

real sovereignty, who can deal with

18:19

foreign powers, for instance. That's in

18:21

the national government. In

18:24

a political theory sense, it resides with the

18:26

people. But what you start to

18:28

see in the interbellum period also is states

18:31

asserting themselves as really

18:33

sovereign. And that's on all different sides of

18:35

the political spectrum. We tend to think of

18:37

it as South Carolina

18:39

nullification, later secession in defense of

18:41

slavery, and that's part of it.

18:44

But the state claims of sovereignty

18:46

are very much alive and well

18:48

throughout this period and not only

18:51

from Southern slaveholder protecting states. Fascinating.

18:55

You just do so much to illuminate

18:57

the complexity of the argument over sovereignty

18:59

and the different positions taken by different

19:03

people in the same debates. Bill Allen,

19:06

what does this say about originalism,

19:09

that Madison himself was not an

19:11

originalist in the sense of believing

19:13

that the Constitution was fixed in

19:15

terms of its original public

19:18

meaning? What

19:20

is the role of what's

19:22

called liquidation, that is subsequent

19:24

historical practice in illuminating the

19:27

original public meaning of the text? And

19:30

is it relevant that Hamilton and

19:32

Jefferson each had distinct approaches

19:35

to constitutional interpretation?

19:38

Jefferson, the strict constructionist

19:40

of the text, Hamilton,

19:43

the implied powers liberal constructionist

19:45

guy. Do we

19:47

care that the three founders had completely different

19:50

approaches to interpreting the Constitution or not? You

19:54

asked a lot in that question. I'm going to try to

19:56

tie it into what we're for as well. Let's

19:59

start with the question. to the sovereignty

20:01

itself. I think we can be over

20:03

gripped in separating out what was said

20:05

at the convention and what happened subsequently.

20:07

It is important that although Madison lost

20:09

the state veto, he did

20:11

succeed in assuring a ratification process

20:14

for the express purpose of making

20:16

it a national government. So

20:19

he did not want ratification to be

20:21

referred to the legislative authority of the

20:23

states. That's absolutely fundamental from the point

20:25

of view of the discussion of sovereignty

20:28

or nationalism, if we want to put it in

20:30

those terms. Madison never

20:32

abandoned that line. And

20:35

that's why he could repel the

20:37

pair of controversies in the 30s, and

20:39

he could repel the claims to his

20:42

authority for the state's rights arguments that

20:44

emerged in that period, because he still

20:46

hewed to the line he laid

20:48

out in the Constitutional Convention. Therefore,

20:51

it is important to put the places where

20:53

he did have to make adjustments in

20:56

perspective, and what you refer to as

20:58

the public view of the

21:00

Constitution that Madison in a way

21:03

raised to a holy standard. That

21:07

must not be treated as an

21:09

equivocation on his part. That

21:12

must be treated seriously, both

21:14

theoretically and politically. He

21:17

is not at all being disingenuous

21:19

in 1816 when he says that

21:21

these are the people who ratified

21:23

the Constitution, and

21:25

therefore their view about what the

21:27

Constitution means has greater authority than

21:29

my individual view. That's

21:32

an originalist argument. We need to

21:35

understand that. Now, it doesn't

21:37

mean when you refer to originalism, that

21:39

people do not continue to make

21:42

decision and constitutional decisions. That's

21:44

why the dynamic process is so

21:46

important, because the foundation

21:48

of the originalism is

21:50

precisely the dynamic of decision making

21:53

in the body at large. The original

21:56

Constitution seeks to create what I've described

21:58

in one of my books as political.

22:00

homogeneity. A political homogeneity

22:03

does not rule out the

22:05

extraordinary diversity in the

22:07

society at large. And the whole

22:10

point, of course, is to equilibrate

22:12

political homogeneity with the extraordinary diversity

22:14

in the society at large. Madison

22:17

never lost sight of that. I

22:19

don't think Hamilton lost sight of it

22:21

either. And I think it's important that

22:24

Thomas Jefferson, though a strict constructionist with

22:26

regard to constitutional theory, as

22:28

an administrator, used implied

22:30

construction and did not overturn the

22:33

Hamiltonian framework. So we have to

22:35

pay attention to the actual practices.

22:38

I love that emphasis in Professor

22:40

LeCoultre's work, to the actual practices,

22:42

the decisions made in the ways

22:45

they were justified, not

22:47

as departing from the originalism,

22:50

but being itself an expression of

22:52

the demand of originalism

22:54

itself. What we

22:57

have to remember is that

22:59

the most important aspect of

23:01

originalism is the responsibility that

23:04

evolves upon decision makers. That

23:07

includes those in government, and it

23:09

includes those people as sovereign themselves.

23:11

It is an ongoing process that

23:13

decision making, and that's what is

23:16

most greatly in conformity with the

23:18

original intent of the Constitution. Fascinating.

23:21

Alison, one of

23:23

your amazing chapters is chapter

23:26

nine, which talks about Wisconsin's nullification

23:28

and secession arguments in the 50s about

23:30

the Fugitive Slave Act. And

23:32

you show that far from only

23:35

being enlisted on behalf of the

23:37

slave power, as it was

23:39

in resistance, South Carolina's

23:41

decrying Congress's tariff for Georgia,

23:43

decrying the Supreme Court's power

23:46

to reorganize the Native nations.

23:48

Wisconsin actually invoked these nullification

23:50

claims on behalf of

23:52

resistance to the Federal Fugitive Slave Act.

23:55

Tell us about that amazing story and its significance. Yes,

23:57

it's one of my favorite stories. my

24:00

favorite episodes in terms

24:02

of just drama and also

24:04

surprise. I mean, I think one of the things I

24:06

wanted to do with the book was really to say,

24:08

this is not the period

24:11

that we've thought it is. And some of

24:13

that sense of surprise really comes through in

24:15

that chapter. So I'm really glad you asked

24:17

about it. So yeah,

24:19

I mean, we have this rhetoric and where

24:21

I start the chapter is by quoting some

24:25

of the Wisconsin state officials and

24:27

lawyers. So in 1850,

24:29

Congress passes a second

24:31

fugitive slave act that's really bolstered

24:34

and puts federal power very

24:37

forcefully and clearly on

24:39

the side of returning alleged

24:42

fugitive slaves. So federal

24:44

power is doing the handiwork

24:46

and the force and the violence of

24:49

slaveholders. So

24:51

any notion, and many people raised this objection

24:53

at the time, any notion that slavery

24:56

is a local institution governed

24:59

by norms of comedy among the

25:01

states is basically eliminated in 1850

25:03

when Congress says, federal

25:05

officials in the states, federal judges,

25:08

federal marshals, you are

25:10

all obliged to carry out this

25:12

fugitive slave act rendition and these

25:14

processes that are essentially kidnapping people.

25:17

And so that comes to

25:20

a very dramatic climax in Wisconsin

25:23

in 1854, when a man

25:25

named Joshua Glover, who had been enslaved

25:27

in Missouri, who lives

25:30

in Racine, Wisconsin for a couple of years,

25:32

he's a member of the

25:34

community, but he in the middle

25:36

of the night is basically arrested,

25:38

seized, thrown into a wagon by

25:41

his enslaver and some

25:43

federal officials. So it's all lawful

25:45

in terms of the federal law

25:47

of the day. He's carried up

25:49

to Milwaukee, he's put in the

25:51

jail there for a waiting process.

25:53

Meanwhile, state officials and journalists,

25:55

it's a really interesting story in terms of

25:57

the press, get wind of this.

26:00

And you have telegraphs going up and

26:02

down between Racine and Milwaukee and

26:05

anti-slavery mobs

26:07

for me. And they stormed

26:09

the jail in Milwaukee. And I have to say, I was

26:12

born in Milwaukee, so this story really has a

26:14

lot of local and kind

26:16

of hometown import to me.

26:19

The square is still there, but now it's called

26:21

Cathedral Square. At this point, it was called Courthouse

26:23

Square. And you have a

26:25

mob storming a jail, and there's

26:28

this African-American man there. And we think, we

26:30

know how this is going to go. This looks like a

26:32

mob. This looks like a lynch mob. But

26:34

they are there to break him out and help

26:36

him escape, which he does. Then

26:39

we get a lot of litigation. It goes

26:41

to the Supreme Court. But

26:43

one of the things that's so interesting

26:45

about it is you get mass meetings,

26:47

political meetings, newspaper essays. An editor in

26:49

Milwaukee named Sherman Booth is at the center of

26:51

this. And all

26:54

of their language, if you removed the word

26:56

Wisconsin, and I've done this, I've shown it

26:58

to students and I've said, who do you

27:00

think is saying this? And they think it's

27:03

South Carolina nullifiers or secessionists. But

27:05

it's not. It's states' rights language

27:08

that is Wisconsin's states' rights language. And we

27:10

might think, well, they're kind of

27:12

appropriating it. They're being strategic. It's the late

27:15

1850s. They see how things are

27:17

going. But they actually mean

27:19

it. And I think one of the most interesting points

27:21

about this is to think, as

27:23

I say in the chapter, in

27:25

the end, Wisconsin deciding to join forces with

27:27

the Union a few years later in the

27:30

Civil War did it in part

27:32

out of states' rights. But it was Wisconsin's

27:34

sense that it was being invaded by

27:37

these Southern slave owners who had captured

27:39

the federal government. So I think

27:41

of it as federalism turned upside down. Who's

27:44

on which side? And that's another part of the book,

27:46

which is to say, we have

27:48

a certain script, I think, from the

27:51

20th century, probably Reconstruction through

27:53

the 20th century about who's

27:55

on which side of federal power versus states'

27:58

rights. This looks very different. And

28:00

it's just a fascinating story. It's

28:03

completely fascinating. Bill Allen, what do you

28:05

make of the fact that in

28:07

these central debates, people seem to switch

28:10

sides based on the political imperative.

28:13

So you mentioned Jefferson abandoning his

28:15

strict construction as principles as president

28:17

for the Louisiana Purchase. Here

28:19

we have Wisconsin abolitionist

28:22

supposedly being nationalist, suddenly becoming

28:24

advocates of nullification. We

28:26

have Andrew Jackson, a big

28:30

Jeffersonian, in the end

28:32

defending the union. Do people embrace

28:34

their constitutional position purely opportunistically on

28:38

the basis of the political imperatives of the moment? Or not?

28:42

I actually believe, Jeff, that we misassign

28:45

the term constitutional to these views that

28:47

people hold. When they're making

28:49

these decisions in political context, they're looking

28:51

for the strongest argument to express the

28:54

outcomes that they desire within the framework

28:56

of the Constitution. Let us

28:58

remember that Abraham Lincoln's primary

29:00

position throughout the buildup towards the

29:03

Civil War was a states' rights

29:05

position, i.e. states

29:07

have a right not to have slavery and not

29:09

to be penetrated by slavery. The

29:12

effect of the Dred Scott decision was to

29:14

federalize slavery, nationalize slavery,

29:16

anti-states' rights. So

29:19

it's not at all surprising in Wisconsin that

29:21

people say, wait a minute, that's not acceptable.

29:23

States' rights require us to be able to live

29:25

free and

29:28

not to be forced to put up with slavery in the state. So

29:31

I think that call those reversals of

29:33

constitutional positions as a mistake. Those are

29:37

constitutional positions consistent with

29:39

the arguments that people are

29:41

making on both sides about what the import

29:43

of the Constitution is. Remember that in the

29:45

original Constitution, there was a reserve clause in what

29:48

became the Tenth Amendment. And

29:52

remember who surfaced the Tenth Amendment? I

29:54

don't mean James Madison as author in

29:57

the first Congress, but I mean the

29:59

Anti-Federalists. who led the campaign for

30:01

this and for whom therefore these

30:03

things were at stake from the

30:05

beginning. What we call today loosely

30:07

states' rights claims, but probably what

30:09

people are privily called rights claims.

30:12

And the rights claims address the

30:14

question of who properly exercises power

30:16

on what questions. And

30:18

if it is to be the case

30:21

that states are the primary authority for

30:23

the exercise of power with regard to

30:25

health safety and morals, then

30:27

you could easily see states' rights

30:30

claims be made from either side

30:32

of any political confrontation without inconsistency.

30:34

And that seems to be what

30:36

is going on. Very

30:39

interesting. So, Alison, you heard Bill say that you

30:42

can make states' rights arguments on behalf of any

30:45

question in constitutional history, and people

30:47

do on both sides. But

30:49

I wonder whether they employ

30:52

them when the states' rights claims favor their

30:54

preferred results and abandon them what they don't.

30:56

And let's talk about Andrew Jackson.

30:59

You have a chapter on the Cherokee

31:01

case, which you tell in really riveting

31:03

detail. Jackson is a big Jeffersonian

31:06

and vetoing the bank and embracing a

31:08

constrained vision of federal power. And then

31:10

he just flips when he embraces broad

31:12

federal power for Indian removal, but then

31:15

kind of coyly stays on the sidelines

31:17

during the Cherokee case and

31:19

lets Georgia defy the court

31:21

without declaring himself. Tell us about his

31:24

performance and whether it's constitutionally

31:26

principled or purely opportunistic. And most of

31:28

all, just tell the amazing Cherokee Indian

31:32

story so that our listeners

31:34

understand it. Yes.

31:37

I mean, so starting,

31:39

I guess, starting with Jackson specifically,

31:43

one thing to note,

31:46

and this ties back to something that

31:48

I think we mentioned a few minutes

31:50

ago, is thinking about the role of

31:52

the executive. And when we think about

31:54

practice and implementation and constitutional law on

31:57

the ground, a lot

31:59

of the time the... the body doing that,

32:01

the institution of government doing that is the

32:03

executive branch and the president. And so that's

32:06

a big part of Andrew Jackson

32:08

here and Jefferson and the Louisiana Purchase

32:10

that people in

32:12

this period, which again, if you think of

32:14

it as flyover country, you miss this. The

32:17

way the executive branch was developing and

32:20

developing its powers is really quite interesting

32:23

and not necessarily what we think, but

32:25

it also shows how we got to

32:27

a lot of where we

32:30

have ended up. Because the

32:32

reason that's relevant here is, yes,

32:34

a lot of the Jacksonian rhetoric

32:36

and even Jackson and also Jacksonianism

32:38

more broadly seems like

32:40

it's about states rights, you know, the sort of

32:42

this notion that Jackson is a southerner and he

32:44

believes in states rights and he sort of talks

32:47

that way. But then we

32:49

look at the Nullification

32:51

Proclamation. So this is earlier.

32:54

This is 1830 through 32. South

32:57

Carolina says we are not only going

32:59

to nullify federal tariff laws, but we're going to

33:01

stop the federal government from sending officials in to

33:04

collect the money. Like that's the sort of where

33:07

things actually cash out on the ground. And

33:10

Jackson issues one of the most forceful

33:12

statements of federal power still. I mean,

33:14

it's in casebooks in constitutional

33:16

law and federal courts because he basically says

33:19

you don't get to do that, South Carolina.

33:21

And he was South Carolina claims him as

33:23

having been born there. There's a sort of question

33:26

of was it North or South Carolina later. But

33:29

I mean, he is a southerner. He

33:31

is very kind of of a mind

33:33

similar to that of South Carolinians. But he says you

33:36

don't get to do this because it's an

33:38

affront to executive power. And so I, as the

33:40

executive can say, I'm going to

33:43

ask Congress to appropriate funds. I will

33:45

send in the military. And

33:47

I think we would think of that as a generally

33:51

kind of a use

33:54

of federal power, executive power that's consistent

33:56

with things later in the 20th century.

33:58

I mean, there are technical aspects of

34:00

the nullification. Proclamation that get picked

34:02

up in Reconstruction and in the 20th century civil

34:04

rights movement. But at the

34:06

same time, as you said, Jeff, he runs for president

34:09

in 1828 and again in 1832, very

34:15

explicitly on, we being

34:18

the federal government, we're not

34:20

making treaties with Native nations anymore.

34:22

We've done that. It's nonsensical.

34:24

I mean, he's much more derogatory.

34:26

Basically, like Native nations don't get

34:28

treaty status. Congress can just legislate

34:31

for them. We have a lot

34:33

of treaties. But from

34:35

now on, when states like Georgia want

34:38

to say, we have jurisdiction over everything in

34:40

the physical territory of Georgia,

34:43

the federal government's going to let them do that.

34:45

And he pairs it with a kind

34:48

of Yeoman farmer, Jacksonian small d

34:51

democracy vision. And this is, politically,

34:54

it's genius of a terrible sort

34:56

because he says, and all of

34:59

his party affiliates in Georgia say

35:01

this, they say, hey,

35:03

white farmers in Georgia, wouldn't you like to

35:05

have your own farm too? Well, enter this

35:08

lottery, buy literal lottery tickets

35:10

for land. And the land that

35:12

will be auctioned or

35:14

lotteryed off is Cherokee and other,

35:16

especially the five tribes land. And

35:18

so you give the small farmer

35:22

white Yeoman a

35:24

stake in dispossession of the Native

35:26

nations. And then he kind

35:29

of is willing to allow Georgia

35:31

to exercise this vast power to

35:33

expel Native nations, even

35:36

though at the same time, or

35:38

roughly at the same time, he's issuing this

35:40

very, very strong message against South Carolina. And

35:42

you look at the story, the sort of

35:44

inner workings, and they

35:47

were really worried that Jackson administration

35:49

about Georgia and South Carolina joining

35:52

forces. So they work through back

35:54

channels to get Georgia and

35:57

the Cherokees allies to kind of

35:59

stop contacting. testing because they fear

36:02

that Georgia and South Carolina will

36:04

join forces, which was very plausible,

36:06

even though the facts on the

36:08

ground were somewhat different. That

36:12

fear was so probable

36:14

that Jackson threatened to

36:17

arrest John Calhoun for treason,

36:20

his own vice president for

36:22

siding with the nullifiers, and

36:25

as you suggest, the crisis was averted

36:27

for political negotiation. Bill Allen, what

36:30

do you make of Jackson's performance

36:32

in this period? He does embrace

36:35

both stage rights and very strong

36:37

federal power arguments. Does this make him an

36:39

opportunist or is this just what people do,

36:41

as you suggested, making the arguments that best

36:43

serve their positions? And then tell us about

36:46

Jackson and the courts, because the real contribution

36:48

here is his claim, like Jefferson,

36:51

that the president can interpret

36:53

the Constitution in ways that differ from the

36:56

courts. What

36:58

does that say about who

37:00

gets to enforce constitutional meaning? So

37:05

let's go back to the original Constitution,

37:08

as I like to observe, there

37:10

isn't an office in the Constitution that

37:12

doesn't carry with it the responsibility to

37:14

judge. That's something that

37:16

we tend to neglect today in our

37:18

conversations, that everyone who

37:20

holds official position has

37:23

a responsibility to make a judgment. Now,

37:26

what is the status of the judgment that's

37:28

made in the respective offices? Are

37:31

they all equivalent status of that of the

37:33

Supreme Court when it pronounces? Well,

37:36

with respect to the primary division,

37:38

executive, legislative and judicial, I think

37:41

the argument is a sound argument that they

37:43

have the same status, not to

37:45

say that they determine legal process,

37:49

but they have the same status

37:51

of respect to proffering interpretations of

37:53

the Constitution. Now,

37:55

you're still bound to work through

37:57

legal processes. So a president

37:59

may say, disagree with the court

38:01

on the constitutional ruling. It happens still today. We

38:04

hear it all the time. A ruling comes out and

38:06

the president says, that's wrong. Well,

38:09

the president saying it's wrong does not change

38:11

what's going to happen in the courtroom. And

38:14

what the court decides governs what happens

38:16

in the courtroom. So then

38:18

the question becomes, are there other arenas

38:20

in which executives and legislators may act

38:22

in such a way as

38:25

to compensate for decisions being made

38:27

judicially? And we know that's

38:29

true because we remember, of course, the Religious

38:31

Freedom Restoration Act, which was done especially

38:34

and explicitly regarded as a

38:36

correction of Supreme

38:38

Court decisions. And

38:40

this happens on numerous occasions in different

38:42

venues. So again, not

38:45

surprising. Why? Because

38:47

everybody has a responsibility to judge

38:50

and to act in accordance with that judgment.

38:54

Therefore, what we are

38:56

observing, and Jackson, I'm going

38:58

to defer to Professor Lacour about with

39:00

regard to his overall administration and his

39:02

practices. But I think it's safe to say,

39:04

of him, that the strong

39:06

position he took with regard to the

39:08

courts was a position which

39:11

could be defended politically, even

39:13

if it couldn't be defended judicially. And

39:16

that's not an insignificant distinction to make.

39:19

So that I don't regard

39:21

Jefferson as being inconsistent because he was

39:23

a strong nationalist in terms of the

39:25

effect of many of his endeavors. And

39:28

I don't regard him as being, how

39:32

shall I express this, acting

39:35

indudiciously because

39:38

he disagreed with judicial judgments.

39:41

He was in fact participating in

39:43

a dynamic environment in

39:45

which all the participants have to react

39:47

to one another because that's

39:50

the nature of the transaction. That

39:52

there are no pristine transactions

39:54

in politics. And I

39:56

know we have a tendency and I think our legal

39:58

education is responsible for it. our thinking is going to

40:00

be honest with you. But we have

40:03

a tendency to think we can

40:05

somehow silo decision making

40:08

and then determine what the decision should

40:10

be based on the silos. That

40:12

does not describe a dynamic environment. Politics

40:15

is a dynamic environment and

40:18

therefore there are to be

40:21

interactions, de

40:23

facto negotiations, whether

40:25

face to face or through the

40:27

effect of political decision. And

40:29

that's what's going on. That's what the dynamic is

40:31

about. So I

40:33

would say of Jackson that he carried

40:36

out his responsibility to judge in

40:38

light of his judgment of what was

40:41

appropriate and he was

40:43

in most respects successful. Alistair,

40:49

of course,

40:51

the combination of this period was over

40:53

secession and the war

40:55

came as Lincoln said and although

40:58

some of Jefferson's nullification language

41:01

was invoked by Calhoun in the

41:04

Nullifiers to Endure Secession, Madison

41:06

in one of those famous

41:08

letters that you mentioned, first-war

41:12

secession and said that that

41:14

was not a constitutional move. Tell

41:17

us about that debate and how at the end

41:19

of the incredible story that you tell in this

41:21

interbellum era, as you call

41:23

it, is there then a

41:25

settlement that secession is unconstitutional

41:27

after the war reinforces Lincoln's judgment than

41:30

it is or does the question

41:32

of secession remain one of

41:34

contestation that has to be solved anew

41:36

in each era? Well,

41:40

great questions, big

41:42

questions. A few thoughts, I mean, and this

41:44

picks up on something that Bill

41:47

just mentioned. I mean, one

41:49

thing about this period and one of the things

41:51

that has drawn me to it is

41:54

that it sometimes is treated as all

41:56

politics, no law, especially again by

41:59

constitutional law. law folks. So there's

42:02

no constitutional amendment, so there's nothing in the text

42:04

we can point to. Sure,

42:06

a lot of things happened, all the things

42:08

we've been talking about and then many others, but

42:10

that's all politics, it's not law. And

42:13

I really resist that for obvious reasons,

42:15

because first of all, that stark distinction,

42:18

as Bill was saying, between law and

42:20

politics is itself false.

42:22

That's not how people experience it at

42:24

the time. It's not a

42:26

useful distinction. And so

42:29

I want to bring both back in, and

42:31

this goes I think directly to your question

42:33

also, Jeff, because one thing

42:35

that I draw out of the whole period

42:37

is this focus on

42:40

what they sometimes call umpires.

42:44

Where is the umpire? And you see this back in

42:46

1815, one of the earliest kind

42:49

of debates that I focus on in the book, right

42:52

as the War of 1812 is ending, the

42:54

famous Supreme Court case, Martin against Hunter's Lessee,

42:57

where the Virginia High Court essentially says,

43:00

we just don't think

43:02

you're the umpire on this question, Supreme

43:04

Court. And they go back and

43:06

forth and the Supreme Court of the US sort of

43:08

forcefully says, yes, we are the umpire. But

43:10

this question or revising power, like

43:13

sometimes we think of it, I would, I

43:15

tell in my constitutional law classes, it's this

43:18

question, not just who decides, but it's who

43:20

decides who decides. And this again goes to

43:22

the different branches have

43:24

a duty to make constitutional assessments.

43:28

But what happens then, right? Who decides who

43:30

decides? And what's very important to me is

43:32

that for all of us, I

43:34

think people in this period disagree

43:36

about that, just as

43:38

we do today, just as people did at the

43:41

founding. So then Lincoln and

43:43

secession. I mean,

43:45

Lincoln is right there even early

43:47

in his career in 1838. He

43:49

makes this wonderful speech in

43:52

Springfield, Illinois, to the Young Men's

43:54

Lyceum, a very tokevillian assembly of

43:56

people getting together to discuss the

43:58

issues of the day. So they

44:00

have young politician Lincoln come

44:02

in, and he basically tells

44:05

them the real danger is

44:07

mobocracy. That's what he calls it. We

44:10

need to have political religion of

44:12

the Declaration of Independence and the

44:14

Constitution. And

44:16

then we see him as president, and this is where

44:18

I'm going with, I'm working on the next book, which

44:20

is the Civil War and Reconstruction. So picking up

44:22

a lot of these issues because the

44:25

Lincoln administration sticks to the position

44:28

throughout the war that secession is unlawful.

44:30

They are not seceded states. The union

44:32

is perpetual. But

44:35

even at the very beginning of the war, even

44:38

before the war, as you see states

44:40

claiming to secede, people

44:42

aren't sure what that means. I mean, it's

44:44

funny, you have years and years of threatened

44:46

secession, and Frederick Douglass has this wonderful piece

44:50

in his Frederick Douglass Monthly. As

44:53

South Carolina and other states have seceded, where he's

44:55

basically kind of, I mean, he's kind of jeering

44:57

at them, but he's raising a serious question too,

45:00

which is, what does it even

45:02

mean to secede? You still got federal post

45:04

offices, you've got arsenals, you've got forts. Like,

45:07

what is the secession that you're so proud

45:10

of? You're having all these balls and celebrations,

45:12

but what is it really gonna mean? And

45:14

he almost, once Lincoln

45:16

is elected, Douglass says, I celebrate disunion

45:19

because now with an anti-slavery

45:22

president like Lincoln, unlike

45:25

say Buchanan, this

45:27

will unfold in a way that isn't separation

45:29

where you just have the slave

45:32

holding South continuing. But

45:34

I think there's a lot of, even

45:36

saying like the Lincoln administration says, secession

45:39

is unlawful, that develops, that

45:41

takes them a while to even figure out what that

45:43

means. Bill, what

45:46

do you make of that remarkable

45:49

debate over secession, which Alison just described?

45:52

Is there a settlement after the

45:54

war that establishes the precedent that

45:57

secession is unconstitutional as

45:59

Lincoln says? And what does it

46:01

mean and I want to bring this home because this discussion

46:03

is so important To have a

46:05

political religion of the Declaration and the

46:07

Constitution if people do disagree Essentially

46:10

about what it means and all these issues we're

46:12

talking about in every era Is

46:16

there what is there one fixed meaning that people have

46:18

to embrace in order to have allegiance to the Constitution

46:20

on a declaration or not? I

46:25

Believe it's fair to say that the

46:28

question was settled at the end

46:30

of the Civil War and I'll explain why I

46:32

think back But let me start

46:34

by saying I don't think the

46:36

differences are essential And

46:38

that's what it means to have a

46:41

political religion The differences are outside the

46:43

core beliefs that form the politic and

46:45

begin with which is why

46:47

Lincoln and the Gettysburg Address Invoked

46:49

it in the manner that he did When

46:52

I heard earlier to political homogeneity I

46:54

was describing the same thing that Lincoln

46:56

led by political religion in the YCM

46:58

address that there is

47:00

a fundamental commitment to certain foundational

47:04

political Premises which

47:06

do not quiet conflict

47:08

and disagreement But

47:10

do provide a basis

47:12

for resolving disagreements Everyone

47:15

has to as it were be content

47:18

to decide the issues in

47:20

an identifiable forum or on

47:22

the same ground now as

47:25

we said before The point

47:27

was to create a national

47:29

Institution in which it was

47:31

the authority of the people of the nation that

47:34

created the government That's where the

47:36

argument against secession begins So

47:38

that when the secession argument came into its

47:41

prominence in the 19th century It

47:43

was because of people who wanted to make the

47:45

argument the states had ratified the Constitution and not

47:47

the people of the nation and

47:50

the war in effect Reinforce

47:53

Madison's perspective that it was the people of

47:55

the nation and not the states who ratified

47:57

the Constitution. So why do I say there

47:59

was? settlement. There's

48:02

a new book that's just issued in

48:04

which I have an essay called Counter-Reconstruction.

48:07

And I happen to believe, as I prevent it

48:09

starting with Trumbull and working through

48:11

the whole process of the reaction to

48:14

reconstruction, that the

48:16

whole counter-reconstruction was an acceptance

48:18

of the settlement on the

48:21

question of secession, i.e.

48:24

the reintegration of

48:26

the previously seceding states into

48:28

the federal union ended

48:30

up taking place on the

48:33

tacit promise that the people

48:35

being reintegrated could acquire

48:37

within the context of the federal

48:39

union sufficient power to maintain what

48:41

they regarded as their distinctive way

48:43

of life and that they could

48:45

depend on decisions they wanted to make on their home

48:47

ground. And therefore they abandoned

48:51

themselves secession in

48:53

order to work through the federal structure

48:55

to accomplish the results

48:57

that they had hoped to acquire by

49:00

secession. And I believe

49:02

that's why secession became settled, in

49:04

fact. And I explained in

49:06

the essay that I've just published that

49:09

that counter-reconstruction view prevails even to

49:11

this day. It

49:13

governs the way in which federal power

49:16

is structured and administered and

49:19

the expectations people largely have of the

49:21

government in relation to the people. There's

49:24

not an accident that we still see appeals

49:26

to state rights from a different perspective. We

49:28

have sanctuary cities and sanctuary states, for heaven's

49:31

sakes, which are not very different from what

49:33

was going on in the 19th century and

49:35

on the question of future slaves and other

49:37

such questions. Those things will

49:40

remain. Every now and

49:42

again today somebody talks about

49:44

seceding from California, a county here and

49:46

there, or maybe having

49:48

Texas secede. But those are

49:51

all pie-in-the-sky fringe theories. They're not

49:53

at the heart of any politics

49:55

at all in the United States

49:57

today. So that in that sense, if you're out

49:59

of the What is its political

50:01

significance? You have to conclude that the

50:03

secession argument was settled at the end

50:05

of the Civil War so

50:08

powerful and such a Clear

50:10

way that you put it that

50:12

allegiance to the Declaration of the Constitution are not

50:16

Embrace of the same Senate

50:18

principles but a commitment to resolving a

50:20

disagreement in an identical Forum

50:22

and that is a very very helpful way Well,

50:25

it's time for closing thoughts in this

50:28

superb discussion Allison I

50:30

know our viewers and listeners

50:32

are eager to hear your thoughts

50:34

about the implications for Originalist

50:38

judges today of your of your

50:40

rich and important conclusions

50:42

in how should judges account

50:47

for Contestation

50:50

and evolution in constitutional

50:52

understanding based in history and

50:56

What should an originalist make of your arguments? Well,

51:00

this is a great very important question

51:02

and I think you know, I

51:05

first would say Historians

51:08

doing what historians do is very different

51:10

from doing what originalists do so I

51:12

think They're there

51:15

every now and then there's a sort of you

51:17

know news article or something Especially at the end

51:19

of the Supreme Court's term, especially last term last

51:21

spring around this time history

51:24

wins again at the Supreme Court and I I

51:27

have to say I I Recoiled

51:29

at that a bit because I thought they're

51:31

not they're not doing history. They're doing appeals

51:33

to history and the history and tradition Standard

51:38

now, I know why they're doing

51:40

it I know there's an authority

51:43

there that they're trying to seek hold of but

51:45

I guess I would say two things one is History

51:49

I think the court treats history differently

51:51

because they have a certain view or they take a

51:53

certain view that Anyone can

51:55

do it and this is where it connects

51:57

with plain meaning modes of interpretation Anyone

52:00

can pick up a text and read it.

52:02

The Constitution is written basically in our language.

52:05

Anyone can do this. It is a transparent

52:07

act of interpretation. We

52:10

saw this from the late Justice Scalia, for

52:12

instance, in District of Columbia v. Heller. He

52:15

basically abandons the preamble to the Constitution in

52:17

a sentence or two. And he says, you

52:19

know, it doesn't really add anything,

52:21

doesn't really mean much, doesn't tell us anything. You

52:24

look at the 18th and 19th centuries, the

52:26

preamble to the Constitution was enormously powerful and

52:29

held a lot of meaning for people. So

52:32

I guess first, the history, real history

52:34

would say there has

52:36

to be some degree of interpretation. It isn't just

52:39

obvious on the face of the document what

52:41

it means. But

52:43

second, I would say, okay, so

52:46

now, you know, do I want every justice

52:48

to be a historian? Do I

52:50

expect them to do that? No. I would

52:52

say I would like them to have the

52:55

degree of respect for history as a

52:57

methodology that they express for other methodologies.

52:59

So we know the Chief

53:01

Justice at one point talked about sociological gobbledygook,

53:04

but there's a certain sense that sociology,

53:06

economics, these other fields are fields

53:08

with methods that are not immediately

53:10

accessible. Okay, so that would

53:13

be a sort of appreciation of a methodology. What

53:16

do I think they should do? I mean, I do think history is highly

53:19

relevant to constitutional interpretation, but the

53:21

thing is, when you look at

53:23

history, you find more possible

53:25

meanings, not fewer. They look at history,

53:27

the originalist justices intend to say, history

53:30

will tell us the one meaning of

53:32

the Second Amendment or the Appointments Clause, the

53:35

14th Amendment. That's not what history

53:37

does. It's going to show several

53:39

possible meanings, many of which may be very

53:41

different from the ones on the table today.

53:43

And that's what

53:46

I think a really historically informed

53:48

justice should be informed by. And

53:50

then they might decide, my

53:52

theory of judging says

53:54

that I should care about other things. And that's

53:57

also acceptable. I think it doesn't have to be

53:59

the only method of doing

54:01

conscientious adjudication. Such

54:04

a powerful insight. The fact which you

54:06

show so indisputably,

54:09

that looking at history reveals more

54:11

meanings, not pure, and there's not

54:14

just one meaning in historical debates.

54:16

Bill Allen, the last word in

54:18

this great conversation is to you,

54:21

what should judges take

54:24

in your view from the multiple meanings

54:26

that history reveals? Well,

54:29

I hate to get my last words to end with

54:32

something of a slight dissent, but

54:34

I will do so just because we

54:36

are academics. If we don't at

54:38

some point dissent and people will begin to suspect

54:40

our credentials. I

54:42

don't believe history conveys meaning,

54:44

period. I

54:47

do think that we who revert to

54:49

history, discover meaning appropriate

54:51

to ourselves from what

54:54

we discover in history, whether that's historical

54:56

events or biographies, or any of a

54:58

number of other things. The

55:01

history is there and

55:03

it is unchanging. The text

55:05

is there and it is

55:07

unchanging. The only thing that

55:09

changes in this process are the

55:12

successive generations. Be perfectly

55:14

candid. We change

55:16

and we are the ones who

55:18

therefore use history and

55:20

any other tools we bring to

55:22

the task both to access

55:25

text and also to

55:28

find authority

55:31

for what are our most precious

55:36

wishes of the moment. Because

55:39

it turns out they don't stand on

55:41

their own. No

55:43

matter what it is we aspire to

55:45

or wish to see accomplish, what

55:48

we tend to do is recognize

55:50

that there's nothing we can say

55:53

on our own authority to

55:55

justify. Therefore,

55:57

we seek authority beyond ourselves.

56:00

So the question is, where do we

56:02

find authority beyond ourselves to

56:05

justify our strongly held

56:07

preferences? Well, it

56:10

is in human history, a tradition

56:13

that is unbroken, that

56:15

we look back to the past. We

56:18

look to the authority of the golden

56:20

age. Now, of course, there

56:22

was no such thing as a golden age, but

56:25

there was such a thing

56:27

as a founding, which even

56:29

contemporaneously to the founding was

56:31

recognized as an extraordinary accomplishment.

56:35

And for 100 years, at least subsequent to

56:37

that, recognized as

56:39

an extraordinary accomplishment, all

56:42

of which carries the importance of

56:45

encouraging people to lean on it

56:47

for authority, because it represents

56:49

accomplishment beyond the level that we

56:51

can ordinarily attain to the over-expect

56:54

of ourselves. So

56:56

there's not so much that history

56:58

conveys meaning as that we need

57:00

meaning, and we revert

57:02

to history in the

57:05

hope of eliciting that meaning.

57:07

And what the courts do,

57:10

since we were talking primarily about the courts, is,

57:13

of course, recognize that they are

57:15

constrained. They're required by

57:17

the Constitution to justify their decision, that

57:19

they could just decide without explaining. Life

57:22

would be so much easier, and say,

57:25

yes or no, whatever your particular question is, and you'd

57:27

go away and you'd have to accept it. But

57:30

we don't accept yes or no. We

57:32

demand reasons. And

57:35

so the court has to provide

57:37

reasons for us. Where

57:39

will they find reasons that are persuasive to

57:41

us? Oh, I know.

57:43

Why not turn to what we

57:45

respect, to what we know, to

57:48

the historical traditions that are

57:50

important to us. And

57:53

thus we see structure, the

57:56

entire process of trying to navigate through what

57:58

I describe in the Book of the Multiscule

58:00

and the new translation in the commentary on

58:02

the spirit of wars, the contingencies

58:06

of life. Because all

58:08

politics is about navigating

58:10

the contingencies of life.

58:13

The contingencies are never fixed. But

58:15

is there a fixed way to approach

58:17

contingency? Yes, it's

58:20

called constitutionalism. That's

58:22

what it's about. And we probably

58:25

ought to now graduate and

58:27

substitute for the word originalism,

58:29

constitutionalism. Thank

58:33

you so much, Alison LaCroix and

58:35

Bill Allen, for an incredibly illuminating,

58:37

rich, and

58:39

provocative discussion. Congratulations

58:42

on your new book, Alison LaCroix,

58:44

the Interbellum Constitution. Bill Allen on

58:46

your new translation of Montesquieu. And

58:49

thank you for shedding so much constitutional

58:51

light. Thanks to all. Thanks

58:53

for hi to you. Today's

59:00

episode was produced by Lana Ulrich, on

59:45

behalf of the National

59:48

Constitution Center, I'm Jeffrey Rosen.