October 28, 2025 • 56 mins
Think you know the Constitution’s greatest hits? We pull back the curtain with Andrew Porwancher, a constitutional historian and Hamilton biographer, to test common “truths” against the record the founders left behind. We start with power: why Madison and Hamilton expected Congress to predominate, why the judiciary was “the weakest,” and how modern presidents and courts grew in strength, often with Congress’s blessing. Then we follow a surprising breadcrumb trail to the First Amendment, where an accident of ratification made those liberties “first,” and Jefferson’s famous “wall of separation” grew from a thank-you letter inspired by a 1,200-pound “mammoth cheese.”
From there, we dig into religion and the law. Everson’s embrace of Jefferson’s metaphor, the Lemon test’s fits and starts, and the overlooked Article VI ban on religious tests show how abstract rights become real only when civil disabilities are removed. We revisit the Bill of Rights’ rocky path after Philadelphia and the Ninth Amendment’s warning not to shrink liberty to a list. Impeachment gets a clear-eyed treatment: Hamilton’s “POLITICAL” offenses versus the trial-like safeguards that suggest a narrower legal frame. The Second Amendment also gets the full arc—from militia clauses and conscientious objectors to Heller and McDonald—clarifying that the right is individual while regulation remains a live battlefield.
We also weigh how much the Federalist Papers should matter. Written to sway New York’s razor-thin ratification, they reveal the authors’ thinking but don’t always capture original public meaning across the states. What emerges is a Constitution designed less to end debate than to house it—legislatures, courts, and executive offices turning conflict into process instead of violence. If you care about constitutional law, civic education, or teaching history, this conversation gives you usable context, case names, and a better map for today’s arguments.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_00 (00:00):
Hello, listeners.
We are so excited today to haveone of our SQDL professors here,
Andrew.
He is going to talk to us aboutsome myths in the Constitution,
some stuff that maybe we learnedwe need to unlearn.
So, Andrew, I'm going to haveyou introduce yourself for our
listeners.
SPEAKER_01 (00:19):
Thank you so much, Liz, for having me on the
podcast.
Thank you to the listeners fortuning in.
It's really such a privilege tobe able to talk about my
favorite subject, theConstitution.
I am a professor ofconstitutional history here at
Skettle.
I'm new.
This is my first year.
I spent the first 12 years of mycareer teaching constitutional
history at the University ofOklahoma.
(00:40):
And in the process of that, Idiscovered that a lot of
enduring myths that we haveabout the Constitution don't
really line up with thehistorical record.
And so I'm really excited todelve into some of those
fallacies and get to the work ofdebunking with you today.
SPEAKER_00 (00:55):
Yay.
And I do want to point out youhave written a book about one of
our founding fathers.
Do you want to talk a little bitabout that?
SPEAKER_01 (01:01):
Sure.
I'll just I'll say briefly thatI had a book come out a couple
years ago called The JewishWorld of Alexander Hamilton
about his relationship with theJewish community and really
about his relationship with thebirth of religious freedom in
America more broadly.
And so that was a really funbook to work on.
And I'm now going to turn toanother Federalist and try to
(01:24):
bootstrap a book on GeorgeWashington.
So stay tuned for that.
Maybe we can do a podcast onWashington later.
SPEAKER_00 (01:30):
Yes.
And spoiler alert, we are goingto do a podcast on Alexander
Hamilton because Hamilton iscoming back to gamge.
So that is going to come later,though, because it's not until
the summer.
But we're going to talk aboutsome myths that we've heard.
So the first myth, maybe, thatpeople think is true is that all
three branches are coequal.
(01:51):
They have the same amount ofpower, right?
We've heard separation ofpowers, checks and balances, but
are they coequal?
SPEAKER_01 (01:59):
According to most any judge, most any scholar,
most any person you talk to onthe street, they would tell you
that we've three co-equalbranches of government.
It has become axiomatic, but itis not at all supported by the
evidence that we have in thehistorical record about the
Constitution.
What is striking when you lookat the language of the framers
(02:21):
themselves is that they wantedthree unequal branches.
That's not to say that theywanted one branch to dominate
the other two, but they did notbelieve that all branches should
be equal.
And to make this argument, Iwant to turn to the Federalist
Papers, which I'll brieflyremind readers what the
Federalist Papers were.
(02:41):
When the delegates of theConstitutional Convention
finished their work in Septemberof 1787, the Constitution is
just ink on parchment.
It has no legal force.
Only if at least nine of the 13states ratify the Constitution
will it take legal effect.
And so the Federalist paperswere authored by James Madison,
(03:04):
Alexander Hamilton, and JohnJay, although Hamilton did most
of the work.
I have to say that as a Hamiltonbiographer, in a bid to persuade
New Yorkers specifically to sendpro-constitution delegates to
the New York State RatifyingConvention.
And these papers are among themost commonly used tools that
(03:26):
judges rely on in interpretingvarious provisions of the
Constitution.
And James Madison in Federalist51, one of the most famous
Federalist papers, says, and I'mquoting here, in Republican
government, the legislativeauthority necessarily
predominates.
In other words, Congress is themost important branch of
(03:49):
government, the most powerful.
And Hamilton says in Federalist78, and again I quote, the
judiciary is beyond comparisonthe weakest of the three
departments of power.
And so if Congress is the mostpowerful and the judiciary is
the least powerful, then thatputs the presidency somewhere in
the middle.
So this begs the question (04:09):
why would the framers want three
unequal branches of power?
And we have to look back at ourcolonial era history.
During the colonial era, theAmerican colonists were electing
the local legislative assembliesthemselves, but the judges were
being imposed on them by thecrown.
(04:30):
They were seen as symbols ofroyal power.
And so Americans had been primedthrough 150 years of colonial
experience to see legislaturesas uniquely protective of their
interests.
And so there was much greatercomfort in endowing Congress
with wide authority.
And one of the more strikingfeatures of the last couple
(04:50):
hundred years of Americanhistory has been to see the
great expansion of both judicialpower and presidential power at
the expense of congressionalpower.
And that's often happened withCongress's willing consent.
Whether that's a good thing or abad thing is a debate I'll let
my colleagues who do politicaltheory stress about.
(05:12):
I'm just a historian.
I'm just telling you how it is.
But I think that the historicalrecord is clear that the
co-equality that we take as amaxim today was not the intent
of the framers.
SPEAKER_00 (05:27):
And that's so interesting because, you know,
when I was teaching, I kind oflooked at it as article one,
two, and three, right?
From most important becausearticle one is is quite long.
And then article three is quiteshort.
So that's a very, veryinteresting.
So speaking of the you know,format of the Constitution, the
(05:50):
First Amendment, right?
The first freedoms, FirstAmendment is the first because
it's the most important myth orfact.
SPEAKER_01 (05:59):
That is a myth.
So we when we think about theFirst Amendment, we think about
these cardinal liberties that wecherish as Americans: freedom of
the press, freedom of religion,separation of church and state,
freedom to assemble.
And there is this assumption,sometimes tacit, sometimes
(06:20):
explicit, that these rights wereput in the First Amendment
almost symbolically because theyare first and foremost freedoms.
But the truth is it's just anaccident of history that those
particular liberties becameenshrined in the First
Amendment.
Initially, there were 12amendments, but only 10 of them
got ratified.
The actual First Amendment hadto deal with a formula for
(06:43):
determining the size ofcongressional districts.
It had nothing to do withfreedom of speech or freedom of
religion.
And the original SecondAmendment, it didn't have to do
with guns.
That was the Fourth Amendment.
The original Second Amendmenthad to do with the conditions
under which members of Congresscould vote to increase their own
salaries.
SPEAKER_00 (06:59):
Doesn't that become an amendment later?
SPEAKER_01 (07:01):
That does.
That does.
I can tell you were a civicsteacher who knew her stuff.
That becomes an amendment muchlater, one of our most recent
amendments.
But it at the time in the 18thcentury, the states only ratify
10 of those 12 proposedamendments.
And so what was the thirdamendment gets bumped up to the
(07:23):
First Amendment.
And so it's a nice rhetoricalflourish to talk about the
particular freedoms as our firstfreedoms because they're in the
First Amendment, but that isactually historical
happenstance, not part of theintentional design.
SPEAKER_00 (07:36):
That is super interesting.
Now I want to like go look atthe Lost Amendment.
So speaking of the FirstAmendment, now we're looking at
the separation of church andstate.
And let me tell you, being onany kind of social media, just
hearing any kind of discussionon religion, government, people
are saying separation of churchand state, it's in the
(07:57):
Constitution.
Like that needs to happen.
Is that true?
SPEAKER_01 (08:01):
I'm sure if you polled Americans on the street
and asked, does the languageseparation of church and state
appear in the text of theConstitution?
Probably large numbers would sayyes.
And the truth is it appearsnowhere in the Constitution.
The Constitution says Congressshall make no law respecting an
establishment of religion.
So that begs the question, well,does that mean that we have to
(08:26):
have separation of church andstate?
And if it doesn't, how did wecome to this idea that
separation of church and stateis conflatable with the language
we actually do have in the textof the First Amendment?
And to delve into that history,I want to share a brief story
about the mammoth cheese, as itwas known in 1802.
(08:48):
This is and you know, somelisteners might be thinking, you
know, I've seen some pretty bigpieces of cheese.
I don't think you've seen apiece of cheese like this.
It was 17 feet in circumference.
It weighed over 1200 pounds, andemblazoned on its crust were the
weighty words rebellion totyrants is obedience to God.
And this mammoth cheese wasgifted to Thomas Jefferson as a
(09:15):
thank you for his commitment toreligious liberty.
And actually, a local newspaperat the time published a poem
about this mammoth cheese.
And the poet writes, But muse,you'll not forget to squeeze a
word about the mammoth cheese.
Such cheese no man before setface on, 'tis bigger than Don
Quixote's base on.
(09:36):
Such cheese, my stars would makeone swoon, to view tis bigger
than the moon.
This cheese is surely honoredmore than ever any cheese
before.
To feel the weight and forceforsooth and crash of
presidential tooth.
Ye maggots that dwell in thecheese with horror, how your
limbs will freeze, how you willkick and squirm and claw beneath
(09:58):
the Jeffersonian jaw.
SPEAKER_00 (10:00):
I would like everybody to know that he did
not read that.
He just recited it.
That was amazing.
SPEAKER_01 (10:05):
This is that poem is burned indelibly and into my
memory.
It is perhaps my favorite poemfrom American history.
And you might be wondering,well, what does a mammoth wheel
of cheese have to do withconstitutional history?
SPEAKER_00 (10:19):
I'm very curious.
SPEAKER_01 (10:20):
The short answer is everything.
The the cheese, as I mentioned,was a gift to honor Jefferson
for his commitment to religiousliberty.
Now, at the time that he getsthis cheese, Jefferson had
previously received a letterfrom the Danbury Baptists in
Connecticut who were worriedthat their religious liberty was
susceptible to stateencroachment and they wanted
(10:44):
some sign of affirmation fromthe president.
And Jefferson hadn't respondedto them.
But when he gets this wheel ofcheese, he is so moved by the
cheese and all that itrepresents that he is inspired
to take pen to paper and hefinally writes back the Danbury
Baptist and what is one of themost important letters in the
(11:04):
history of the Constitution.
And he says, and I quote here, Icontemplate with sovereign
reverence that act of the wholeAmerican people which declared
that their legislature shouldmake no law respecting an
establishment of religion orprohibiting the free exercise
thereof, thus building a wall ofseparation between church and
(11:26):
state.
This is where we get thelanguage separation of church
and state.
Jefferson, more than a decadeafter the ratification of the
Establishment Clause, is lookingbackwards and he is saying that
the First Amendment means youhave to have separation of
church and state.
That is the necessaryimplication of the Establishment
(11:50):
Clause.
So is Jefferson right?
Well, like almost everythingelse, the founders had very
vivid and heated debates aboutwhat the proper relationship
between church and state was.
Certainly, Jefferson is not atotal anomaly.
Folks like James Madison largelyagree with him.
(12:13):
But on the other side, you havefolks like George Washington,
Alexander Hamilton, John Jay,who were equally committed, as
were Jefferson and Madison, toreligious liberty and religious
pluralism, but they saw agreater role for religion in
American civic life than did thelikes of Jefferson or Madison.
(12:33):
So for instance, in the 1780s,there was a bill that was
proposed in the Virginia StateLegislature, where George
Washington was, of course, from,that would allow tax dollars to
fund Christian schools.
And Washington says, well, I'mnot opposed to using state money
to fund Christian schools, butonly Christians should be
(12:54):
subjected to that tax.
Jews or Muslims or anyone elsewho's not Christian should get
exempt from paying any taxeslike that.
And this was Washington's way ofwetting a commitment to
religious pluralism withgovernment support for religion.
And to be clear, I'm notendorsing the Washingtonian view
(13:14):
or the Jeffersonian viewnecessarily.
Again, I have my historian haton.
And what I'm hoping to bring tolife here is that there was
genuine debate about what theproper relationship between
church and state was among thefounders.
What we find is that in themid-19th century, we have a wave
of Catholic immigrants who cometo America to work in a lot of
(13:38):
the factory jobs that werecreated by emerging
industrialization.
And there were some establishedProtestants who feared that
these Catholic immigrants werethe front lines of a papal
invasion, that they would beloyal to the Pope over their
adopted homeland of America.
And so some of these Protestantsstarted touting the separation
(13:58):
of church and state, not as someliberal secular ideal, but as a
reactionary, xenophobic,anti-Catholic, anti-immigrant
disposition, that the separationof church and state, they hoped,
would box out Catholics fromshepherding in some sort of
presumably nefarious papalinfluence in American politics.
(14:19):
It is only later in the mid-20thcentury, when the Supreme Court
takes up the issue about themeaning of the establishment
clause, that the language ofseparation of church and state
gets recast not as some sort ofxenophobic sentiment, but rather
as the secular ideal that's morewell known today.
(14:40):
So in a famous 1947 case, theSupreme Court, looking to
Jefferson's Danbury letter,writes, and I quote, in the
words of Jefferson, the clauseagainst establishment of
religion by law was intended toerect a wall of separation
between church and state.
That wall must be kept high andimpregnable.
(15:00):
We could not approve theslightest breach.
SPEAKER_00 (15:04):
What case is that?
SPEAKER_01 (15:05):
So that was Everson.
SPEAKER_00 (15:07):
Okay.
SPEAKER_01 (15:08):
And so this was a case about whether you could
have government dollars beingused to fund busing for
religious schools.
And the Supreme Court saysactually that is fine because
it's not a foul of thisprinciple of separation of
church and state, because that'sa that's a neutral policy that
we're applying to all childrenregardless.
(15:30):
So, you know, for instance,analogously, if a Catholic
school were engulfed in flames,the fire department wouldn't
refuse to put out that fire justbecause that's a Catholic
school.
Yeah.
And and but these issues getreally tricky because you you
might wonder, well, couldgovernment dollars fund math
(15:53):
education in a religious school?
Well, what if the way thatthey're teaching math is to
calculate the area of a cross ora Muslim crescent or Jewish Star
of David?
Then do you get an interminglingof religion and state in a way
(16:13):
that's problematic?
And ultimately, the SupremeCourt develops this lemon test
to try to determine whetherthere's an undue entanglement of
government and religion.
But I've I may be getting farafield here, so forgive me.
But that what this is one of themore interesting topics, I
think, is what are theconditions under which
(16:35):
government is neither advancingnor inhibiting religion?
And that is a very difficultline for even the best intention
state actors to walk.
SPEAKER_00 (16:43):
Is the lemon test still what the Supreme Court
uses for the establishmentclause?
SPEAKER_01 (16:49):
That is a great question.
Judges do what judges do.
My wife is a litigator, and onething I've learned from watching
her practice law is that judgeshave a lot of discretion, and
sometimes the courts like toapply the lemon test, and
sometimes they pretend that itdoesn't exist.
And it will be interesting tosee over the next 10 or 20 years
(17:13):
the extent to which the lemontest continues to guide the
court or whether the courtincreasingly chooses to adopt
other tests or more ad-hominumdecisions based on the
idiosyncrasies of a particularcase.
But one thing that I can saywith a lot of confidence is that
questions of entanglementbetween government and religion
(17:33):
will continue in the future asthey have for the first 250
years of our experiment inself-government.
SPEAKER_00 (17:39):
So the religion clause in the First Amendment
actually has two parts.
We just talked aboutestablishment.
I've heard arguments that peoplesay the free exercise clause is
actually the most important.
Thoughts on that?
SPEAKER_01 (17:54):
So I have a bit of a contrarian view on this, and you
could probably find a lot oflegal scholars and historians
who disagree with me, and that'sfine.
But I believe that the mostimportant clause relating to
religion in the U.S.
Constitution is actually adifferent clause, a more
(18:14):
esoteric clause, much less wellknown, which is found in Article
6, and it is a ban on religioustests for office.
In other words, the Constitutionexplicitly opens all federal
office, elected and appointed,to people of all faiths or
people of no faiths.
And the reason I think this iseven more important than the
(18:34):
free exercise clause is becausepeople might fairly ask, well,
Andrew, why is it that a clausethat pertains to everybody, like
the free exercise clause, wouldbe more important than a clause
that pertains to the tiny sliceof Americans that actually want
to seek federal office?
And to answer that question, weneed to look at the state
(18:56):
constitutions.
When America declaresindependence, the colonies are
no longer colonies, they're nowstates.
And so they have to adopt stateconstitutions for themselves.
And many of them do this before1787.
And these state constitutionsbecome a model that the framers
look at in the summer of 1787.
(19:17):
And in these stateconstitutions, there are almost
invariably clauses thatprefigure what we see in the
free exercise clause, a broadgrant of religious liberty to
people.
But these same stateconstitutions, when it gets down
to the much more specificquestion of who is eligible to
(19:37):
serve an elected office, oftenlimit the people who are
eligible to either Christians orjust Protestants or even
particular denominations withinProtestantism.
And so the lesson from the stateconstitutions is that a broad
grant of religious liberty inthe abstract means very little
(19:59):
if you then suffer a civildisability for having exercised
your faith.
It's not really a terribly freeexercise.
What is so radical about theU.S.
Constitution is that thedelegates do not follow the
example of the stateconstitutions in limiting
federal office to certainsubsets of people, they open up
(20:22):
federal office to people of allor no religious background.
It is a major advance forreligious liberty, a substantive
grant of power in the mostimportant domain of American
civic life.
And so at a very moment in time,once the Constitution is
(20:42):
ratified, where a Catholic or aJew might not have been eligible
to serve in their local statelegislature, that selfsame
person could be electedpresident of the United States.
It is a testament to theliberality and the commitment to
religious freedom from thedelegates who met in
Philadelphia in that summer.
SPEAKER_00 (21:01):
So states that become states after the
Constitution is adopted, do theykind of follow that same model
then of anybody?
There's no religious tests foroffice?
SPEAKER_01 (21:11):
So it depends on the state.
The Bill of Rights did not applyto state governments in these
early days.
The Supreme Court only reallystarts applying the Bill of
Rights to state governments inthe 20th century.
And that happens through theratification of the 14th
(21:32):
Amendment.
It's a process of doctrine ofincorporation.
If you want to come to Scheduleand get an undergrad or graduate
degree, we can get into thosegranular details.
But suffice it to say that atthe time, just because the Bill
of Rights cabined in the federalgovernment, state governments
were free to do what theywanted.
Now, many states did follow theexample of the U.S.
(21:53):
Constitution and moved in thedirection of greater inclusion
in terms of expanding civilrights towards religious
minorities.
But there were a number ofstates where there were
holdouts.
In Maryland, it was still a livequestion well into the 19th
century whether Jews would beafforded equality.
In New Hampshire, Jews were notgiven formal legal equality
(22:15):
until the 1870s.
There were open questions wellinto the 19th century about
whether Jews and other religiousdissenters are competent to give
sworn testimony in a courtroom.
And so the direction isgenerally towards greater
religious liberty, but it is byfits and starts, and progress
(22:35):
happens at different paces indifferent places.
SPEAKER_00 (22:39):
That's really it's just cool, like to hear.
I mean, I know a lot of thisstuff, but just to hear more
about it and understanding, youknow, especially with religion,
like that little clause inArticle 6 that says there's no
religious test is huge.
(22:59):
So the next thing we're talkingabout the Bill of Rights, that
was part of the originalconstitution.
And I'm saying right, I alreadyknow the answer, but a lot of
people think that you knowthere's the articles and then
the first ten amendments, andthat was all in one sitting.
SPEAKER_01 (23:16):
Yeah, so the Bill of Rights and the Constitution were
different documents and theyhappen at different moments.
The delegates did considerhaving potentially a Bill of
Rights included in the originalConstitution.
George Mason was a delegate fromVirginia who, in the waning days
(23:37):
of the convention, floats thisidea of having a Bill of Rights.
But there was a lot ofresistance among the delegates
to having a Bill of Rights for abunch of reasons.
I mean, for one, it they hadendured a hot, sticky summer in
Philadelphia.
People wanted to get home, theywere eager to return to their
families and to their lives.
There was also concern that ifyou start debating the substance
(24:01):
of a Bill of Rights, that mightunravel important compromises
that were tenuously forgedearlier that summer.
There was also a sense amongcertain delegates, Hamilton
among them, who thought that theConstitution created a
government of limited powers.
There's no need for a Bill ofRights.
And we might actuallyunwittingly curb liberty rather
(24:24):
than expand it by having a Billof Rights because you can never
enumerate every liberty.
And so if we only name some,future generations might wrongly
infer that any liberties thatare not in the Bill of Rights
are subject to governmentencroachment.
And so Hamilton and his likewere concerned about handcuffing
(24:47):
the federal governmentneedlessly in this regard and
perhaps actually empowering afuture government to impede
individual freedoms that werenot included in any such bill.
When the text of theConstitution becomes made public
during the ratification debates,it turns out that the delegates
in the Constitutional Conventionhad badly misread the
(25:11):
temperature of the Americanpeople.
George Mason actually got itright.
The people did want their mostimportant liberties enshrined in
a Bill of Rights.
And state ratifying conventionsratified the Constitution with
the popular understanding that aBill of Rights would be
forthcoming.
And James Madison, staying trueto his promises that he makes,
(25:33):
does draft a Bill of Rights forcongressional approval to then
go out to the states forratification.
However, the states, despitewidespread support for Bill of
Rights, due to variousidiosyncrasies having to do with
Patrick Henry, who in many wayswas not a fan of the
Constitution and wanted a secondconstitutional convention,
(25:57):
manages to stall ratification inVirginia, which is the swing
vote on ratification for severalyears.
And it was not at all clear fromthe vantage point of the early
1790s that the Bill of Rightswould ever be ratified.
It finally happens in 1791, butwe should be wary of making the
(26:22):
mistake of reading our owncertainty about what happened in
the past backwards.
At the time, it was very tenuousindeed whether we would have a
Bill of Rights.
And I'm glad that they were ableto get it done.
It has been the backbone of ourexperiment in democracy.
But it the story about thisbifurcation between the
(26:45):
Constitution and the Bill ofRights is a reminder of just how
fragile this experiment was inits earliest days.
SPEAKER_00 (27:02):
So is that why Madison came up with the Ninth
Amendment?
Is just kind of, hey, here's alist.
SPEAKER_01 (27:07):
But yeah, that's right.
We have an amendment that saysexplicitly, do not misinterpret
this bill as limiting people'srights to only that which is in
the Bill of Rights.
And that has helped protectagainst government encroachment
to some extent, but it isundeniable, I think, that it has
(27:30):
been easier at moments ofgovernment overreach to encroach
upon rights that are notexpressly enumerated in the Bill
of Rights.
The courts engage this idea ofwhat they call fundamental
rights.
And there are different waysthat they try to determine what
count as fundamental rights.
But if something's in the Billof Rights, there is no question
that it is fundamental.
And you cannot have governmentencroachment on it except under
(27:54):
very limited and specificcircumstances.
SPEAKER_00 (27:57):
Interesting.
So our next topic has been inthe news quite a bit.
The term impeachment, it issomething that I think people
misunderstand what impeachmentis, what it is supposed to do.
So can you shine a light onimpeachment from the
Constitution, please?
SPEAKER_01 (28:16):
Absolutely.
So impeachment has beensomething that has been on
people's minds more than it hasfor most of American history in
recent years.
We saw President Trump getimpeached twice.
There has been discussion ofimpeaching President Biden.
Some people are predicting thatimpeachment may become part of
(28:37):
the ordinary course of politicalaffairs in American life.
I'm not a soothsayer.
I don't predict the future.
But what I can say lookingbackwards is that there are
divergent views on what the truepurpose of impeachment is.
And there are credible argumentson both sides.
(28:59):
So the two main views areeither, on the one hand, that
impeachment is a political tool.
It is part of the ordinarysystem of checks and balances by
which Congress can check apresident who is not doing his
job terribly well.
And the competing view is thatit is a narrow criminal
proceeding that can be broughtagainst a president under only
(29:22):
the most limited circumstances.
So let's talk a little bit aboutthe evidence on either side of
this issue.
And this is some of the evidencethat we saw come out in some of
the recent impeachment hearings.
So, in favor of a more robust,more expansive view of
impeachment, we can turn toHamilton and the Federalist
Papers.
(29:42):
And he says that the properbasis for impeachment isn't
criminality in any narrow sense.
He uses the word malconduct.
And he says specifically thatoffenses for impeachment are
political in nature, right?
He doesn't say legal, he says.
Political.
And he puts the words the wordpolitical in all capital
(30:05):
letters, lest anyone miss hispoint.
Hamilton was not one to besoft-spoken.
He was he was not afraid to beheavy-handed.
So there is a compelling case, acompelling philosophical case
for this view, which suggeststhat members of Congress don't
(30:26):
take an oath to us, they take anoath to the Constitution.
And if a president's not doingtheir job well, if if they're if
their job's being performedparticularly egregiously, if
they're guilty of malconduct,even in a political sense, it is
well within Congress's right,well within the right of the
House to impeach the presidentand for the Senate to remove the
(30:48):
president.
But there is compelling evidencefrom the text of the
Constitution itself thatsuggests actually there's a much
more narrow reading of theimpeachment power.
For one, the senators who sit asa jury in any impeachment trial,
they have to take an oath.
There is no other oath that theytake besides their initial oath
(31:09):
of office, except when it comesto the impeachment trial.
That's the only time there's asecond oath.
So when members of the Senateare voting up or down on a
presidential nominee to theSupreme Court, they don't take a
second oath.
When they are voting up or downon a treaty, they don't take a
second oath.
In other words, when they'reexercising their normal checks
(31:31):
and balances, they do not take asecond oath.
They only do it here.
Well, who else takes oaths?
Jurors.
Jurors take oaths to renderverdicts according to the law
and the evidence.
And so this second oath wouldsuggest that impeachment is a
legal process and it is confinedto narrowly criminal terms.
(31:53):
We should also take note thatwhen a president is impeached,
the chief justice of the SupremeCourt presides, the senior most
legal official, which wouldunderscore this idea that it is
a legalistic rather thanpolitical enterprise.
And the underlying philosophyfor this view is that we live in
a democracy, and the people havea right to the president that
(32:15):
they elected.
And if they think that presidentisn't doing a very good job,
they can go to the polls andtoss him out or her out and put
in a new president.
And so the members of Congressshould only in these small
select circumstances of highcrimes and misdemeanors usurp
(32:37):
the people's prerogative todecide who the president should
be, the only official that theentire country votes for.
(32:59):
But I think that as with so manyissues in our constitutional
law, people of good faith candisagree about how to interpret
these impeachment clauses.
SPEAKER_00 (33:10):
And I think that's the one of my favorite parts
about history and looking atthis is people can read things
differently.
And you can look at theimpeachments of Andrew Johnson,
Bill Clinton, President Trump,and really, I mean, debate both
sides.
Like, is it political because,you know, it seems like, I mean,
with all four of theimpeachments, I think that one
(33:31):
political party was trying todo, you know, impeach and try to
get this.
So it's interesting, especiallythat you brought up the
Federalist papers, which we willget to.
But before that, I want to talkabout the Second Amendment
because it's very hotlycontested.
And you know, there wasn't aSupreme Court case until
(33:55):
McDonald versus Chicago.
SPEAKER_01 (33:58):
So McDonald versus Chicago comes in 2010, and
that's the first case to addressthe question about whether the
Second Amendment is incorporatedinto the due process clause of
the 14th Amendment and appliesto the states.
Two years before that, you getDC versus Heller, which is the
first time that the court ruleson the meaning of the Second
(34:19):
Amendment.
But because DC is very unique,it's not a state, it there was
this open question about well,what does that mean for everyone
else in the country who aren'tincluded in the 700,000 people
who happen to live in thenation's capital?
And so you get this pair ofcases that work together and
move in the same direction.
And in these cases, the court istrying to decide does the Second
(34:45):
Amendment guarantee anindividual right to gun
ownership or a collective right?
In other words, does the SecondAmendment confer on individual
citizens the right to go out andand procure a gun for yourself,
or is it a collective right thatgives members of militias the
prerogative to own and exercisefirearms?
(35:09):
And they're like with theimpeachment clauses, there's
really compelling evidence onboth sides.
If you look at Anglo-Americanhistory, if you look at the
history of gun ownership inEngland during the time when
America was still part of theBritish Empire, there is a
tradition of a legal right toindividual gun ownership.
(35:30):
And we can find examples ofcolonial statutes where that
right migrates over across theAtlantic to the New World.
But there is some compellingevidence from the debate around
the Second Amendment thatsuggests that it might actually
be a collective right reservedto members of a militia.
So when Congress was debatingthe text of what would become
(35:53):
the Second Amendment, there wasoriginally a clause that had
conscientious objector cast toit.
So it read, no personreligiously scrupulous of
bearing arms shall be compelledto render military service in
person.
So that was tacked on to the endof what we know as the Second
Amendment.
(36:13):
And so that clause ended upgetting taken out because of
concerns raised by EldridgeJerry, one of the congressmen
whose the famous term we alluse, gerrymandering, comes from
Jerry because he created adistrict that looked like a
salamander.
So gerrymander.
But anyway, that's a story foranother day.
(36:34):
The Second Amendment hasinitially this conscientious
objector clause, which begs thequestion well, it doesn't make
sense to have a conscientiousobjector to an individual right
to own a gun.
No one's requiring individualsto own a gun.
And so the fact that they'reeven debating whether or not
there should be a conscientiousobjector clause means that this
(36:55):
amendment necessarily relates tomilitary service, and that even
as that clause is taken out, ithas to be read in the context of
military service, and thereforeit's a collective right.
And so I think people on eitherthe the pro-gun side or the gun
control side have historicalevidence that they can point to.
(37:16):
The Supreme Court in in 2008 inDC versus Heller, and then they
reaffirmed this in the McDonnellcase you mentioned, rule that
there is an individual right toown a gun.
But notably, the court says thatthey are willing to entertain
significant regulations on thatright, for instance, banning
(37:38):
guns in schools and other sortsof public venues.
And so the question for usmoving forward in the next
generation isn't whether it's anindividual right.
The Supreme Court has decidedthat.
The question is going to be towhat extent is the court willing
to let stand statutes at thestate level or at the federal
(38:03):
level limiting the extent ofthat right.
And that is going to be a reallyinteresting area of
jurisprudence to keep an eye onin the next 10 or 20 years.
SPEAKER_00 (38:14):
Can you, you talked about conscientious objectors.
Can you tell listeners what thatmeans?
SPEAKER_01 (38:19):
Oh, sure, yeah.
So the idea here is that if youhave in this in this particular
instance, you can have a secularconscientious objector in
theory, but as the framers weretalking about at the time, if
you had a religious aversion totaking up arms against another
person, to committing acts ofviolence, even in service of
(38:41):
defense of the state against thestate's enemies, and you know,
many Quakers fell into thisparticular box at that time in
the late 18th century, then youcould object on religious
grounds and not be required toserve in the military.
SPEAKER_00 (38:58):
Interesting.
But that did not make it to thefinal cut.
SPEAKER_01 (39:03):
That did that did not make the final cut.
And there have been exampleslater in American history of
people conscientiously objectingto military service.
SPEAKER_00 (39:13):
Muhammad Ali during the Vietnam War.
SPEAKER_01 (39:15):
That's right.
That's right.
Yeah, Muhammad Ali is is yeah,perhaps the most iconic example.
And and there are others.
I think before Vietnam, wehadn't had a war that was quite
so controversial.
Yeah.
But when you get back into thehistorical record, one of the
things that I'm struck by isthat many m wars that we we
memorialize today as having beenthese great and morally
(39:40):
righteous struggles like WorldWar II actually were deeply
controversial at the time.
SPEAKER_00 (39:47):
And that's, I think, the interesting thing about
history, right?
So that kind of takes us to ourlast piece.
We've talked a lot about theFederalist Papers, the musical
Hamilton, very famous.
People think like, well, theFederalist Papers clearly were
so important back in the day of,you know, framing and ratifying
the Constitution.
(40:08):
But I think you're going to tellus a different story.
SPEAKER_01 (40:11):
It pains me to say this, Liz, because I am a
Hamilton biographer and Hamiltonis the central figure in the
Federalist Papers.
But the commonplace assumptionthat many people make,
especially judges today make,that the Federalist Papers are
all important for understandingthe Constitution is on shaky
historical ground.
(40:32):
The Federalist Papers were, as Imentioned, written for a New
York audience to try to persuadeNew Yorkers to send
pro-constitution delegates, alsoknown as Federalists, to the
state ratifying convention inPoughkeepsie.
New York was going to beabsolutely crucial to this
enterprise of re-establishingthe country under a new
(40:56):
constitution, because even ifyou met the minimum threshold
required for the constitution totake effect, which was nine of
the 13 states, the constitutionwould only take effect in the
states that ratified.
And New York was central to theunion geographically,
economically, politically, andwithout New York's votes, even
though the nine-state thresholdhad been passed before New York
(41:19):
State Ratifying Convention, itwas very unlikely that the union
would survive.
And so New York was crucial.
And yet, despite the publicationof the Federalist Papers, New
Yorkers, by a two-to-one margin,send anti-federalists to the
state ratifying convention.
Even the chairman of the stateratifying convention was an
(41:42):
anti-federalist.
And it is only thanks toHamilton's oratorical prowess
that he is able to move thedelegates in attendance to
narrowly, by a 30 to 27 vote,ratify the New York State
Constitution for the New Yorkersto ratify the U.S.
Constitution.
(42:02):
It was the narrowest vote of anyof the state ratifying
conventions up to that point intime.
And it was not at all a foregoneconclusion that the Constitution
would be ratified.
It required a lot of hard workon the part of people like
Hamilton.
Today we often remember theConstitution in these very
(42:24):
reverential tones, and it would,everyone pledges their faith to
the Constitution as a kind ofsecular religion in America.
But the truth is it was deeplycontroversial.
Ratification was not at all aforegone conclusion.
Many of the anti-federalistssuggested, well, it's only been
four years since the war withBritain ended.
(42:45):
The Articles of Confederationhaven't had a proper chance.
And they were worried that if wepass the Constitution, we're
going to have a much morepowerful central government, and
that we're going to have apresident who acts like a king,
and we're going to have a Senatewho's like a House of Lords, and
their aristocratic arrangementis going to be protected by a
standing army, and we will havefutilely fought a war for our
(43:07):
independence only to revert backto British tyranny.
Only it would be conducted bylocal American elites.
And so they were deeply worriedabout what the Constitution
would mean for individualliberty.
And I would argue, and I thinkthe likes of Hamilton would
argue, that what we see in theU.S.
(43:31):
Constitution is that having afederal government that has what
the founders would call energy,that is efficacious, that is up
to the challenge of leadership,does not necessarily mean that
the government is going toencroach on the liberties of the
people.
It just means that the peoplehave to be vigilant over their
(43:51):
government to ensure that theirliberties endure in perpetuity.
So all of this aside, what I'llsay about the Federalist Papers
is that they are significant forunderstanding how the authors of
the Federalist Papers thought.
And they can be very usefultools for thinking through the
(44:12):
original intent of the framers.
But if we talk about theoriginal intent from the
perspective of original publicmeaning, which is to say, what
did the words of theConstitution generally mean to
Americans at the time, which ishow some originalists apply
originalism.
They don't look to framers'intent, they look to original
(44:34):
public meaning.
I think that the Federalistpapers are arguably of more
limited value in understandingthat original public meaning.
Now, the question of the meritof originalism as a school of
constitutional interpretation isa separate question than whether
a given piece of evidence isuseful in service of that
(44:56):
particular interpretation.
So I'm not here today endorsingor repudiating any particular
school.
Again, I'm wearing my historianhat very happily.
But I do think that if we aregoing to look at original
intent, it's important thatjudges and citizens be clear
about do we mean the intent ofthe framers?
Do we mean the intent of theratifying conventions that gave
the Constitution legal force?
(45:17):
Do we mean original publicmeaning?
And once we've determined whichwe're interested in, then we
have to ask, well, what kinds ofevidence count as legitimate in
discerning that intent?
SPEAKER_00 (45:30):
And that's the first time I've ever heard original
public meaning.
And I'm like, I can't wait todig into that because it's so
fun.
So we are wrapping up.
But before we do, one of thejobs you have here at SQL is the
director of graduate studies,and we have a master's degree.
Do you want to talk a little bitabout that?
Because I'm assuming listenersare like, this was really fun.
(45:54):
Where can I get more of thiskind of conversation?
SPEAKER_01 (45:59):
That's a very generous question, Liz.
We do have a master's programhere at Skettle.
It is called the Master's inClassical Liberal Education and
Leadership.
It is a hugely exciting programthat is geared towards K through
12 teachers who are interestedin history and civics.
It's geared toward people whomight want to pick up a master's
(46:21):
degree en route to applying toPhD programs.
It's a great degree for anyoneinterested in civic leadership.
This is a program where studentscan come and study the iconic
thinkers of the Westerntradition from Plato and
Aristotle through Locke andLincoln.
We went out and got the bestMadison scholar in the country.
(46:45):
We went out and got the bestLincoln scholar in the country.
And we've brought them here tothe desert.
We've brought them to Tempe.
And we have just a world-classfaculty.
Our courses are all Socraticmethods, small group seminars,
and we offer a real contentfocus that can be hard to find
in some other competing master'sprograms.
(47:09):
And so we've been very happy tohave great faculty.
We've been happy to be able torecruit great students for those
people who are interested inpicking up the degree part-time.
We are very much geared towardsyour schedule.
Our courses are all in theevenings, and we're going to
start offering uh summer classesjust starting this summer.
And we are fortunate to be ableto offer significant
(47:32):
scholarships to worthyapplicants.
And so this is a great timewhile the program is still
small, and we have a lot ofscholarship money to apply.
And I would encourage anyonelistening to look me up on the
Schedule website, shoot me anemail, let's find a time to
chat.
And I would love to talk to anyinterested prospective
applicants about our master'sprogram.
SPEAKER_00 (47:54):
And I will put links to your page and to the
master's.
I did also want to bring up thatthe James Madison Memorial
Fellowship, if that is somethingthat listeners are interested
in, they pick one teacher a yearper state.
And the Madison Fellowship hasrecognized this master's degree
as one that they will help fund.
SPEAKER_01 (48:16):
That's right.
This is one of their endorsedmaster's degrees.
And so if you win one of thesevery prestigious fellowships
from the Madison MemorialFoundation, there are a number
of universities you can take itto.
We prefer that you take it hereto schedule.
Whether you are out of state orin state, we offer classes not
(48:40):
just in person, but we alsooffer many of our courses
online.
And so wherever you are in thecountry, if you are listening to
this and you're interested inthis master's degree, whether
you're a James Madison MemorialFoundation Fellow or otherwise,
you can be a part of thisprogram.
And one of the reasons that westarted just this summer
inaugurating a week-long summerinstitute is so that we can fly
(49:03):
in our out-of-state students sothey can have a week-long
on-the-ground in-personexperience.
SPEAKER_00 (49:08):
As a side note, it is not in Phoenix.
It is in Flagstaff, correct,where the temperature is much
better than Phoenix's.
SPEAKER_01 (49:15):
That's right.
For our students, we say, getyourself to Phoenix and we'll
take care of the rest.
We have a grant.
We're funding the travel foreverybody to get up to
Flagstaff.
We're posting up at NorthernArizona University.
Your lodging and youraccommodation is all is all
covered.
And in fact, if you apply forthe master's program now, it is
not too late to get in on ourfirst ever summer institute.
And it'll be a three-creditcourse that I am teaching called
(49:37):
Constitutional Controversies.
So if you are interested in someof the topics that we've heard
today, there is much more to bediscussed and debated.
SPEAKER_00 (49:47):
And I love, I mean, I have a master's degree.
I got one a really long timeago.
And the only reason I'm notdoing this one is because I'm
doing my doctoral studies, but Ihave learned from a lot of these
professors.
And I love that it's contentfocused.
So we're really trying to helpteachers strengthen their
content knowledge because as acenter and as a school, we
(50:08):
believe that the more contentstrength that you have, the
better you are as a teacher, thebetter we can prepare these kids
for civic life, all of that funstuff.
So definitely look.
I'm going to put all of thisstuff in the show notes for you.
Even if you're listening to thisin a year, check it out.
You just never know.
Are there any final thoughtsthat you have, Andrew, before we
(50:31):
end our podcast?
SPEAKER_01 (50:32):
I'll offer one thought about the Constitution
in closing.
You know, one of the thingswe've discussed today, Liz, is
how there is some ambiguityaround the meaning of the
impeachment clauses.
There are compelling argumentson both sides.
There are compelling argumentsabout the meaning of the Second
Amendment.
There are ways in which theConstitution has become
(50:53):
interpreted that may go afieldfrom what the founding
generation intended.
And what are we to make of thesecontradictions, these nuances,
the indeterminacies of thehistorical record?
It can be frustrating.
We want to look to theConstitution to answer the very
real dilemmas that bedevil ourrepublic.
(51:14):
And we may lament the fact thatthe Constitution does not give
us clear answers to so many ofour problems.
But I would argue that to lamentthe shortcomings of the
Constitution in that regardwould be to miss its point.
The framers lived through amoment of history where people
(51:37):
stopped yelling at one anotherand started firing at each
other.
They saw politics descend intoviolence.
And they created a constitution,not necessarily to resolve all
of our debates, but rather toinstitutionalize the debates, to
create legislative chambers,courthouses, and executive
(51:59):
offices where the politicalchallenges of our day, of any
given generation, can be dealtwith peacefully.
And they did not suffer anyillusion that a country with as
(52:22):
much ideological diversity asAmerica's always had would
somehow come to harmonize undera single unified view.
Indeed, even the very people whowere at the Constitutional
Convention almost immediatelythereafter disagreed about what
various constitutional clausesmeant.
(52:43):
What they have bequeathed to usis not a set of answers.
It is not an array of solutions.
Rather, it is a set ofinstitutions through which we
can channel these fierce debatesmore peacefully.
And here we are now in 2024 onthe brink of our 250th
(53:08):
anniversary as a country, whichmakes us actually much younger
than a number of othercountries, much younger than
many other societies.
And yet we have a constitutionthat is the longest serving
national constitution inexistence anywhere in the world.
Its longevity is the ultimatetestament to its success, not in
(53:30):
resolving our problems, butrather in creating peaceful
forums through which tovigorously debate them.
And as we approach this nextquarter millennium of our
existence as a republic, theConstitution endures and that
debate lives on.
SPEAKER_00 (53:48):
Perfect.
Thank you so much, Andrew.
This has been so much fun.
And I can't wait to do aHamilton one with you.
SPEAKER_01 (53:55):
I'm excited.
Hello, listeners.
We are so excited today to haveone of our SQDL professors here,
Andrew.
He is going to talk to us aboutsome myths in the Constitution,
some stuff that maybe we learnedwe need to unlearn.
So, Andrew, I'm going to haveyou introduce yourself for our
listeners.
SPEAKER_01 (00:19):
Thank you so much, Liz, for having me on the
podcast.
Thank you to the listeners fortuning in.
It's really such a privilege tobe able to talk about my
favorite subject, theConstitution.
I am a professor ofconstitutional history here at
Skettle.
I'm new.
This is my first year.
I spent the first 12 years of mycareer teaching constitutional
history at the University ofOklahoma.
(00:40):
And in the process of that, Idiscovered that a lot of
enduring myths that we haveabout the Constitution don't
really line up with thehistorical record.
And so I'm really excited todelve into some of those
fallacies and get to the work ofdebunking with you today.
SPEAKER_00 (00:55):
Yay.
And I do want to point out youhave written a book about one of
our founding fathers.
Do you want to talk a little bitabout that?
SPEAKER_01 (01:01):
Sure.
I'll just I'll say briefly thatI had a book come out a couple
years ago called The JewishWorld of Alexander Hamilton
about his relationship with theJewish community and really
about his relationship with thebirth of religious freedom in
America more broadly.
And so that was a really funbook to work on.
And I'm now going to turn toanother Federalist and try to
(01:24):
bootstrap a book on GeorgeWashington.
So stay tuned for that.
Maybe we can do a podcast onWashington later.
SPEAKER_00 (01:30):
Yes.
And spoiler alert, we are goingto do a podcast on Alexander
Hamilton because Hamilton iscoming back to gamge.
So that is going to come later,though, because it's not until
the summer.
But we're going to talk aboutsome myths that we've heard.
So the first myth, maybe, thatpeople think is true is that all
three branches are coequal.
(01:51):
They have the same amount ofpower, right?
We've heard separation ofpowers, checks and balances, but
are they coequal?
SPEAKER_01 (01:59):
According to most any judge, most any scholar,
most any person you talk to onthe street, they would tell you
that we've three co-equalbranches of government.
It has become axiomatic, but itis not at all supported by the
evidence that we have in thehistorical record about the
Constitution.
What is striking when you lookat the language of the framers
(02:21):
themselves is that they wantedthree unequal branches.
That's not to say that theywanted one branch to dominate
the other two, but they did notbelieve that all branches should
be equal.
And to make this argument, Iwant to turn to the Federalist
Papers, which I'll brieflyremind readers what the
Federalist Papers were.
(02:41):
When the delegates of theConstitutional Convention
finished their work in Septemberof 1787, the Constitution is
just ink on parchment.
It has no legal force.
Only if at least nine of the 13states ratify the Constitution
will it take legal effect.
And so the Federalist paperswere authored by James Madison,
(03:04):
Alexander Hamilton, and JohnJay, although Hamilton did most
of the work.
I have to say that as a Hamiltonbiographer, in a bid to persuade
New Yorkers specifically to sendpro-constitution delegates to
the New York State RatifyingConvention.
And these papers are among themost commonly used tools that
(03:26):
judges rely on in interpretingvarious provisions of the
Constitution.
And James Madison in Federalist51, one of the most famous
Federalist papers, says, and I'mquoting here, in Republican
government, the legislativeauthority necessarily
predominates.
In other words, Congress is themost important branch of
(03:49):
government, the most powerful.
And Hamilton says in Federalist78, and again I quote, the
judiciary is beyond comparisonthe weakest of the three
departments of power.
And so if Congress is the mostpowerful and the judiciary is
the least powerful, then thatputs the presidency somewhere in
the middle.
So this begs the question (04:09):
why would the framers want three
unequal branches of power?
And we have to look back at ourcolonial era history.
During the colonial era, theAmerican colonists were electing
the local legislative assembliesthemselves, but the judges were
being imposed on them by thecrown.
(04:30):
They were seen as symbols ofroyal power.
And so Americans had been primedthrough 150 years of colonial
experience to see legislaturesas uniquely protective of their
interests.
And so there was much greatercomfort in endowing Congress
with wide authority.
And one of the more strikingfeatures of the last couple
(04:50):
hundred years of Americanhistory has been to see the
great expansion of both judicialpower and presidential power at
the expense of congressionalpower.
And that's often happened withCongress's willing consent.
Whether that's a good thing or abad thing is a debate I'll let
my colleagues who do politicaltheory stress about.
(05:12):
I'm just a historian.
I'm just telling you how it is.
But I think that the historicalrecord is clear that the
co-equality that we take as amaxim today was not the intent
of the framers.
SPEAKER_00 (05:27):
And that's so interesting because, you know,
when I was teaching, I kind oflooked at it as article one,
two, and three, right?
From most important becausearticle one is is quite long.
And then article three is quiteshort.
So that's a very, veryinteresting.
So speaking of the you know,format of the Constitution, the
(05:50):
First Amendment, right?
The first freedoms, FirstAmendment is the first because
it's the most important myth orfact.
SPEAKER_01 (05:59):
That is a myth.
So we when we think about theFirst Amendment, we think about
these cardinal liberties that wecherish as Americans: freedom of
the press, freedom of religion,separation of church and state,
freedom to assemble.
And there is this assumption,sometimes tacit, sometimes
(06:20):
explicit, that these rights wereput in the First Amendment
almost symbolically because theyare first and foremost freedoms.
But the truth is it's just anaccident of history that those
particular liberties becameenshrined in the First
Amendment.
Initially, there were 12amendments, but only 10 of them
got ratified.
The actual First Amendment hadto deal with a formula for
(06:43):
determining the size ofcongressional districts.
It had nothing to do withfreedom of speech or freedom of
religion.
And the original SecondAmendment, it didn't have to do
with guns.
That was the Fourth Amendment.
The original Second Amendmenthad to do with the conditions
under which members of Congresscould vote to increase their own
salaries.
SPEAKER_00 (06:59):
Doesn't that become an amendment later?
SPEAKER_01 (07:01):
That does.
That does.
I can tell you were a civicsteacher who knew her stuff.
That becomes an amendment muchlater, one of our most recent
amendments.
But it at the time in the 18thcentury, the states only ratify
10 of those 12 proposedamendments.
And so what was the thirdamendment gets bumped up to the
(07:23):
First Amendment.
And so it's a nice rhetoricalflourish to talk about the
particular freedoms as our firstfreedoms because they're in the
First Amendment, but that isactually historical
happenstance, not part of theintentional design.
SPEAKER_00 (07:36):
That is super interesting.
Now I want to like go look atthe Lost Amendment.
So speaking of the FirstAmendment, now we're looking at
the separation of church andstate.
And let me tell you, being onany kind of social media, just
hearing any kind of discussionon religion, government, people
are saying separation of churchand state, it's in the
(07:57):
Constitution.
Like that needs to happen.
Is that true?
SPEAKER_01 (08:01):
I'm sure if you polled Americans on the street
and asked, does the languageseparation of church and state
appear in the text of theConstitution?
Probably large numbers would sayyes.
And the truth is it appearsnowhere in the Constitution.
The Constitution says Congressshall make no law respecting an
establishment of religion.
So that begs the question, well,does that mean that we have to
(08:26):
have separation of church andstate?
And if it doesn't, how did wecome to this idea that
separation of church and stateis conflatable with the language
we actually do have in the textof the First Amendment?
And to delve into that history,I want to share a brief story
about the mammoth cheese, as itwas known in 1802.
(08:48):
This is and you know, somelisteners might be thinking, you
know, I've seen some pretty bigpieces of cheese.
I don't think you've seen apiece of cheese like this.
It was 17 feet in circumference.
It weighed over 1200 pounds, andemblazoned on its crust were the
weighty words rebellion totyrants is obedience to God.
And this mammoth cheese wasgifted to Thomas Jefferson as a
(09:15):
thank you for his commitment toreligious liberty.
And actually, a local newspaperat the time published a poem
about this mammoth cheese.
And the poet writes, But muse,you'll not forget to squeeze a
word about the mammoth cheese.
Such cheese no man before setface on, 'tis bigger than Don
Quixote's base on.
(09:36):
Such cheese, my stars would makeone swoon, to view tis bigger
than the moon.
This cheese is surely honoredmore than ever any cheese
before.
To feel the weight and forceforsooth and crash of
presidential tooth.
Ye maggots that dwell in thecheese with horror, how your
limbs will freeze, how you willkick and squirm and claw beneath
(09:58):
the Jeffersonian jaw.
SPEAKER_00 (10:00):
I would like everybody to know that he did
not read that.
He just recited it.
That was amazing.
SPEAKER_01 (10:05):
This is that poem is burned indelibly and into my
memory.
It is perhaps my favorite poemfrom American history.
And you might be wondering,well, what does a mammoth wheel
of cheese have to do withconstitutional history?
SPEAKER_00 (10:19):
I'm very curious.
SPEAKER_01 (10:20):
The short answer is everything.
The the cheese, as I mentioned,was a gift to honor Jefferson
for his commitment to religiousliberty.
Now, at the time that he getsthis cheese, Jefferson had
previously received a letterfrom the Danbury Baptists in
Connecticut who were worriedthat their religious liberty was
susceptible to stateencroachment and they wanted
(10:44):
some sign of affirmation fromthe president.
And Jefferson hadn't respondedto them.
But when he gets this wheel ofcheese, he is so moved by the
cheese and all that itrepresents that he is inspired
to take pen to paper and hefinally writes back the Danbury
Baptist and what is one of themost important letters in the
(11:04):
history of the Constitution.
And he says, and I quote here, Icontemplate with sovereign
reverence that act of the wholeAmerican people which declared
that their legislature shouldmake no law respecting an
establishment of religion orprohibiting the free exercise
thereof, thus building a wall ofseparation between church and
(11:26):
state.
This is where we get thelanguage separation of church
and state.
Jefferson, more than a decadeafter the ratification of the
Establishment Clause, is lookingbackwards and he is saying that
the First Amendment means youhave to have separation of
church and state.
That is the necessaryimplication of the Establishment
(11:50):
Clause.
So is Jefferson right?
Well, like almost everythingelse, the founders had very
vivid and heated debates aboutwhat the proper relationship
between church and state was.
Certainly, Jefferson is not atotal anomaly.
Folks like James Madison largelyagree with him.
(12:13):
But on the other side, you havefolks like George Washington,
Alexander Hamilton, John Jay,who were equally committed, as
were Jefferson and Madison, toreligious liberty and religious
pluralism, but they saw agreater role for religion in
American civic life than did thelikes of Jefferson or Madison.
(12:33):
So for instance, in the 1780s,there was a bill that was
proposed in the Virginia StateLegislature, where George
Washington was, of course, from,that would allow tax dollars to
fund Christian schools.
And Washington says, well, I'mnot opposed to using state money
to fund Christian schools, butonly Christians should be
(12:54):
subjected to that tax.
Jews or Muslims or anyone elsewho's not Christian should get
exempt from paying any taxeslike that.
And this was Washington's way ofwetting a commitment to
religious pluralism withgovernment support for religion.
And to be clear, I'm notendorsing the Washingtonian view
(13:14):
or the Jeffersonian viewnecessarily.
Again, I have my historian haton.
And what I'm hoping to bring tolife here is that there was
genuine debate about what theproper relationship between
church and state was among thefounders.
What we find is that in themid-19th century, we have a wave
of Catholic immigrants who cometo America to work in a lot of
(13:38):
the factory jobs that werecreated by emerging
industrialization.
And there were some establishedProtestants who feared that
these Catholic immigrants werethe front lines of a papal
invasion, that they would beloyal to the Pope over their
adopted homeland of America.
And so some of these Protestantsstarted touting the separation
(13:58):
of church and state, not as someliberal secular ideal, but as a
reactionary, xenophobic,anti-Catholic, anti-immigrant
disposition, that the separationof church and state, they hoped,
would box out Catholics fromshepherding in some sort of
presumably nefarious papalinfluence in American politics.
(14:19):
It is only later in the mid-20thcentury, when the Supreme Court
takes up the issue about themeaning of the establishment
clause, that the language ofseparation of church and state
gets recast not as some sort ofxenophobic sentiment, but rather
as the secular ideal that's morewell known today.
(14:40):
So in a famous 1947 case, theSupreme Court, looking to
Jefferson's Danbury letter,writes, and I quote, in the
words of Jefferson, the clauseagainst establishment of
religion by law was intended toerect a wall of separation
between church and state.
That wall must be kept high andimpregnable.
(15:00):
We could not approve theslightest breach.
SPEAKER_00 (15:04):
What case is that?
SPEAKER_01 (15:05):
So that was Everson.
SPEAKER_00 (15:07):
Okay.
SPEAKER_01 (15:08):
And so this was a case about whether you could
have government dollars beingused to fund busing for
religious schools.
And the Supreme Court saysactually that is fine because
it's not a foul of thisprinciple of separation of
church and state, because that'sa that's a neutral policy that
we're applying to all childrenregardless.
(15:30):
So, you know, for instance,analogously, if a Catholic
school were engulfed in flames,the fire department wouldn't
refuse to put out that fire justbecause that's a Catholic
school.
Yeah.
And and but these issues getreally tricky because you you
might wonder, well, couldgovernment dollars fund math
(15:53):
education in a religious school?
Well, what if the way thatthey're teaching math is to
calculate the area of a cross ora Muslim crescent or Jewish Star
of David?
Then do you get an interminglingof religion and state in a way
(16:13):
that's problematic?
And ultimately, the SupremeCourt develops this lemon test
to try to determine whetherthere's an undue entanglement of
government and religion.
But I've I may be getting farafield here, so forgive me.
But that what this is one of themore interesting topics, I
think, is what are theconditions under which
(16:35):
government is neither advancingnor inhibiting religion?
And that is a very difficultline for even the best intention
state actors to walk.
SPEAKER_00 (16:43):
Is the lemon test still what the Supreme Court
uses for the establishmentclause?
SPEAKER_01 (16:49):
That is a great question.
Judges do what judges do.
My wife is a litigator, and onething I've learned from watching
her practice law is that judgeshave a lot of discretion, and
sometimes the courts like toapply the lemon test, and
sometimes they pretend that itdoesn't exist.
And it will be interesting tosee over the next 10 or 20 years
(17:13):
the extent to which the lemontest continues to guide the
court or whether the courtincreasingly chooses to adopt
other tests or more ad-hominumdecisions based on the
idiosyncrasies of a particularcase.
But one thing that I can saywith a lot of confidence is that
questions of entanglementbetween government and religion
(17:33):
will continue in the future asthey have for the first 250
years of our experiment inself-government.
SPEAKER_00 (17:39):
So the religion clause in the First Amendment
actually has two parts.
We just talked aboutestablishment.
I've heard arguments that peoplesay the free exercise clause is
actually the most important.
Thoughts on that?
SPEAKER_01 (17:54):
So I have a bit of a contrarian view on this, and you
could probably find a lot oflegal scholars and historians
who disagree with me, and that'sfine.
But I believe that the mostimportant clause relating to
religion in the U.S.
Constitution is actually adifferent clause, a more
(18:14):
esoteric clause, much less wellknown, which is found in Article
6, and it is a ban on religioustests for office.
In other words, the Constitutionexplicitly opens all federal
office, elected and appointed,to people of all faiths or
people of no faiths.
And the reason I think this iseven more important than the
(18:34):
free exercise clause is becausepeople might fairly ask, well,
Andrew, why is it that a clausethat pertains to everybody, like
the free exercise clause, wouldbe more important than a clause
that pertains to the tiny sliceof Americans that actually want
to seek federal office?
And to answer that question, weneed to look at the state
(18:56):
constitutions.
When America declaresindependence, the colonies are
no longer colonies, they're nowstates.
And so they have to adopt stateconstitutions for themselves.
And many of them do this before1787.
And these state constitutionsbecome a model that the framers
look at in the summer of 1787.
(19:17):
And in these stateconstitutions, there are almost
invariably clauses thatprefigure what we see in the
free exercise clause, a broadgrant of religious liberty to
people.
But these same stateconstitutions, when it gets down
to the much more specificquestion of who is eligible to
(19:37):
serve an elected office, oftenlimit the people who are
eligible to either Christians orjust Protestants or even
particular denominations withinProtestantism.
And so the lesson from the stateconstitutions is that a broad
grant of religious liberty inthe abstract means very little
(19:59):
if you then suffer a civildisability for having exercised
your faith.
It's not really a terribly freeexercise.
What is so radical about theU.S.
Constitution is that thedelegates do not follow the
example of the stateconstitutions in limiting
federal office to certainsubsets of people, they open up
(20:22):
federal office to people of allor no religious background.
It is a major advance forreligious liberty, a substantive
grant of power in the mostimportant domain of American
civic life.
And so at a very moment in time,once the Constitution is
(20:42):
ratified, where a Catholic or aJew might not have been eligible
to serve in their local statelegislature, that selfsame
person could be electedpresident of the United States.
It is a testament to theliberality and the commitment to
religious freedom from thedelegates who met in
Philadelphia in that summer.
SPEAKER_00 (21:01):
So states that become states after the
Constitution is adopted, do theykind of follow that same model
then of anybody?
There's no religious tests foroffice?
SPEAKER_01 (21:11):
So it depends on the state.
The Bill of Rights did not applyto state governments in these
early days.
The Supreme Court only reallystarts applying the Bill of
Rights to state governments inthe 20th century.
And that happens through theratification of the 14th
(21:32):
Amendment.
It's a process of doctrine ofincorporation.
If you want to come to Scheduleand get an undergrad or graduate
degree, we can get into thosegranular details.
But suffice it to say that atthe time, just because the Bill
of Rights cabined in the federalgovernment, state governments
were free to do what theywanted.
Now, many states did follow theexample of the U.S.
(21:53):
Constitution and moved in thedirection of greater inclusion
in terms of expanding civilrights towards religious
minorities.
But there were a number ofstates where there were
holdouts.
In Maryland, it was still a livequestion well into the 19th
century whether Jews would beafforded equality.
In New Hampshire, Jews were notgiven formal legal equality
(22:15):
until the 1870s.
There were open questions wellinto the 19th century about
whether Jews and other religiousdissenters are competent to give
sworn testimony in a courtroom.
And so the direction isgenerally towards greater
religious liberty, but it is byfits and starts, and progress
(22:35):
happens at different paces indifferent places.
SPEAKER_00 (22:39):
That's really it's just cool, like to hear.
I mean, I know a lot of thisstuff, but just to hear more
about it and understanding, youknow, especially with religion,
like that little clause inArticle 6 that says there's no
religious test is huge.
(22:59):
So the next thing we're talkingabout the Bill of Rights, that
was part of the originalconstitution.
And I'm saying right, I alreadyknow the answer, but a lot of
people think that you knowthere's the articles and then
the first ten amendments, andthat was all in one sitting.
SPEAKER_01 (23:16):
Yeah, so the Bill of Rights and the Constitution were
different documents and theyhappen at different moments.
The delegates did considerhaving potentially a Bill of
Rights included in the originalConstitution.
George Mason was a delegate fromVirginia who, in the waning days
(23:37):
of the convention, floats thisidea of having a Bill of Rights.
But there was a lot ofresistance among the delegates
to having a Bill of Rights for abunch of reasons.
I mean, for one, it they hadendured a hot, sticky summer in
Philadelphia.
People wanted to get home, theywere eager to return to their
families and to their lives.
There was also concern that ifyou start debating the substance
(24:01):
of a Bill of Rights, that mightunravel important compromises
that were tenuously forgedearlier that summer.
There was also a sense amongcertain delegates, Hamilton
among them, who thought that theConstitution created a
government of limited powers.
There's no need for a Bill ofRights.
And we might actuallyunwittingly curb liberty rather
(24:24):
than expand it by having a Billof Rights because you can never
enumerate every liberty.
And so if we only name some,future generations might wrongly
infer that any liberties thatare not in the Bill of Rights
are subject to governmentencroachment.
And so Hamilton and his likewere concerned about handcuffing
(24:47):
the federal governmentneedlessly in this regard and
perhaps actually empowering afuture government to impede
individual freedoms that werenot included in any such bill.
When the text of theConstitution becomes made public
during the ratification debates,it turns out that the delegates
in the Constitutional Conventionhad badly misread the
(25:11):
temperature of the Americanpeople.
George Mason actually got itright.
The people did want their mostimportant liberties enshrined in
a Bill of Rights.
And state ratifying conventionsratified the Constitution with
the popular understanding that aBill of Rights would be
forthcoming.
And James Madison, staying trueto his promises that he makes,
(25:33):
does draft a Bill of Rights forcongressional approval to then
go out to the states forratification.
However, the states, despitewidespread support for Bill of
Rights, due to variousidiosyncrasies having to do with
Patrick Henry, who in many wayswas not a fan of the
Constitution and wanted a secondconstitutional convention,
(25:57):
manages to stall ratification inVirginia, which is the swing
vote on ratification for severalyears.
And it was not at all clear fromthe vantage point of the early
1790s that the Bill of Rightswould ever be ratified.
It finally happens in 1791, butwe should be wary of making the
(26:22):
mistake of reading our owncertainty about what happened in
the past backwards.
At the time, it was very tenuousindeed whether we would have a
Bill of Rights.
And I'm glad that they were ableto get it done.
It has been the backbone of ourexperiment in democracy.
But it the story about thisbifurcation between the
(26:45):
Constitution and the Bill ofRights is a reminder of just how
fragile this experiment was inits earliest days.
SPEAKER_00 (27:02):
So is that why Madison came up with the Ninth
Amendment?
Is just kind of, hey, here's alist.
SPEAKER_01 (27:07):
But yeah, that's right.
We have an amendment that saysexplicitly, do not misinterpret
this bill as limiting people'srights to only that which is in
the Bill of Rights.
And that has helped protectagainst government encroachment
to some extent, but it isundeniable, I think, that it has
(27:30):
been easier at moments ofgovernment overreach to encroach
upon rights that are notexpressly enumerated in the Bill
of Rights.
The courts engage this idea ofwhat they call fundamental
rights.
And there are different waysthat they try to determine what
count as fundamental rights.
But if something's in the Billof Rights, there is no question
that it is fundamental.
And you cannot have governmentencroachment on it except under
(27:54):
very limited and specificcircumstances.
SPEAKER_00 (27:57):
Interesting.
So our next topic has been inthe news quite a bit.
The term impeachment, it issomething that I think people
misunderstand what impeachmentis, what it is supposed to do.
So can you shine a light onimpeachment from the
Constitution, please?
SPEAKER_01 (28:16):
Absolutely.
So impeachment has beensomething that has been on
people's minds more than it hasfor most of American history in
recent years.
We saw President Trump getimpeached twice.
There has been discussion ofimpeaching President Biden.
Some people are predicting thatimpeachment may become part of
(28:37):
the ordinary course of politicalaffairs in American life.
I'm not a soothsayer.
I don't predict the future.
But what I can say lookingbackwards is that there are
divergent views on what the truepurpose of impeachment is.
And there are credible argumentson both sides.
(28:59):
So the two main views areeither, on the one hand, that
impeachment is a political tool.
It is part of the ordinarysystem of checks and balances by
which Congress can check apresident who is not doing his
job terribly well.
And the competing view is thatit is a narrow criminal
proceeding that can be broughtagainst a president under only
(29:22):
the most limited circumstances.
So let's talk a little bit aboutthe evidence on either side of
this issue.
And this is some of the evidencethat we saw come out in some of
the recent impeachment hearings.
So, in favor of a more robust,more expansive view of
impeachment, we can turn toHamilton and the Federalist
Papers.
(29:42):
And he says that the properbasis for impeachment isn't
criminality in any narrow sense.
He uses the word malconduct.
And he says specifically thatoffenses for impeachment are
political in nature, right?
He doesn't say legal, he says.
Political.
And he puts the words the wordpolitical in all capital
(30:05):
letters, lest anyone miss hispoint.
Hamilton was not one to besoft-spoken.
He was he was not afraid to beheavy-handed.
So there is a compelling case, acompelling philosophical case
for this view, which suggeststhat members of Congress don't
(30:26):
take an oath to us, they take anoath to the Constitution.
And if a president's not doingtheir job well, if if they're if
their job's being performedparticularly egregiously, if
they're guilty of malconduct,even in a political sense, it is
well within Congress's right,well within the right of the
House to impeach the presidentand for the Senate to remove the
(30:48):
president.
But there is compelling evidencefrom the text of the
Constitution itself thatsuggests actually there's a much
more narrow reading of theimpeachment power.
For one, the senators who sit asa jury in any impeachment trial,
they have to take an oath.
There is no other oath that theytake besides their initial oath
(31:09):
of office, except when it comesto the impeachment trial.
That's the only time there's asecond oath.
So when members of the Senateare voting up or down on a
presidential nominee to theSupreme Court, they don't take a
second oath.
When they are voting up or downon a treaty, they don't take a
second oath.
In other words, when they'reexercising their normal checks
(31:31):
and balances, they do not take asecond oath.
They only do it here.
Well, who else takes oaths?
Jurors.
Jurors take oaths to renderverdicts according to the law
and the evidence.
And so this second oath wouldsuggest that impeachment is a
legal process and it is confinedto narrowly criminal terms.
(31:53):
We should also take note thatwhen a president is impeached,
the chief justice of the SupremeCourt presides, the senior most
legal official, which wouldunderscore this idea that it is
a legalistic rather thanpolitical enterprise.
And the underlying philosophyfor this view is that we live in
a democracy, and the people havea right to the president that
(32:15):
they elected.
And if they think that presidentisn't doing a very good job,
they can go to the polls andtoss him out or her out and put
in a new president.
And so the members of Congressshould only in these small
select circumstances of highcrimes and misdemeanors usurp
(32:37):
the people's prerogative todecide who the president should
be, the only official that theentire country votes for.
(32:59):
But I think that as with so manyissues in our constitutional
law, people of good faith candisagree about how to interpret
these impeachment clauses.
SPEAKER_00 (33:10):
And I think that's the one of my favorite parts
about history and looking atthis is people can read things
differently.
And you can look at theimpeachments of Andrew Johnson,
Bill Clinton, President Trump,and really, I mean, debate both
sides.
Like, is it political because,you know, it seems like, I mean,
with all four of theimpeachments, I think that one
(33:31):
political party was trying todo, you know, impeach and try to
get this.
So it's interesting, especiallythat you brought up the
Federalist papers, which we willget to.
But before that, I want to talkabout the Second Amendment
because it's very hotlycontested.
And you know, there wasn't aSupreme Court case until
(33:55):
McDonald versus Chicago.
SPEAKER_01 (33:58):
So McDonald versus Chicago comes in 2010, and
that's the first case to addressthe question about whether the
Second Amendment is incorporatedinto the due process clause of
the 14th Amendment and appliesto the states.
Two years before that, you getDC versus Heller, which is the
first time that the court ruleson the meaning of the Second
(34:19):
Amendment.
But because DC is very unique,it's not a state, it there was
this open question about well,what does that mean for everyone
else in the country who aren'tincluded in the 700,000 people
who happen to live in thenation's capital?
And so you get this pair ofcases that work together and
move in the same direction.
And in these cases, the court istrying to decide does the Second
(34:45):
Amendment guarantee anindividual right to gun
ownership or a collective right?
In other words, does the SecondAmendment confer on individual
citizens the right to go out andand procure a gun for yourself,
or is it a collective right thatgives members of militias the
prerogative to own and exercisefirearms?
(35:09):
And they're like with theimpeachment clauses, there's
really compelling evidence onboth sides.
If you look at Anglo-Americanhistory, if you look at the
history of gun ownership inEngland during the time when
America was still part of theBritish Empire, there is a
tradition of a legal right toindividual gun ownership.
(35:30):
And we can find examples ofcolonial statutes where that
right migrates over across theAtlantic to the New World.
But there is some compellingevidence from the debate around
the Second Amendment thatsuggests that it might actually
be a collective right reservedto members of a militia.
So when Congress was debatingthe text of what would become
(35:53):
the Second Amendment, there wasoriginally a clause that had
conscientious objector cast toit.
So it read, no personreligiously scrupulous of
bearing arms shall be compelledto render military service in
person.
So that was tacked on to the endof what we know as the Second
Amendment.
(36:13):
And so that clause ended upgetting taken out because of
concerns raised by EldridgeJerry, one of the congressmen
whose the famous term we alluse, gerrymandering, comes from
Jerry because he created adistrict that looked like a
salamander.
So gerrymander.
But anyway, that's a story foranother day.
(36:34):
The Second Amendment hasinitially this conscientious
objector clause, which begs thequestion well, it doesn't make
sense to have a conscientiousobjector to an individual right
to own a gun.
No one's requiring individualsto own a gun.
And so the fact that they'reeven debating whether or not
there should be a conscientiousobjector clause means that this
(36:55):
amendment necessarily relates tomilitary service, and that even
as that clause is taken out, ithas to be read in the context of
military service, and thereforeit's a collective right.
And so I think people on eitherthe the pro-gun side or the gun
control side have historicalevidence that they can point to.
(37:16):
The Supreme Court in in 2008 inDC versus Heller, and then they
reaffirmed this in the McDonnellcase you mentioned, rule that
there is an individual right toown a gun.
But notably, the court says thatthey are willing to entertain
significant regulations on thatright, for instance, banning
(37:38):
guns in schools and other sortsof public venues.
And so the question for usmoving forward in the next
generation isn't whether it's anindividual right.
The Supreme Court has decidedthat.
The question is going to be towhat extent is the court willing
to let stand statutes at thestate level or at the federal
(38:03):
level limiting the extent ofthat right.
And that is going to be a reallyinteresting area of
jurisprudence to keep an eye onin the next 10 or 20 years.
SPEAKER_00 (38:14):
Can you, you talked about conscientious objectors.
Can you tell listeners what thatmeans?
SPEAKER_01 (38:19):
Oh, sure, yeah.
So the idea here is that if youhave in this in this particular
instance, you can have a secularconscientious objector in
theory, but as the framers weretalking about at the time, if
you had a religious aversion totaking up arms against another
person, to committing acts ofviolence, even in service of
(38:41):
defense of the state against thestate's enemies, and you know,
many Quakers fell into thisparticular box at that time in
the late 18th century, then youcould object on religious
grounds and not be required toserve in the military.
SPEAKER_00 (38:58):
Interesting.
But that did not make it to thefinal cut.
SPEAKER_01 (39:03):
That did that did not make the final cut.
And there have been exampleslater in American history of
people conscientiously objectingto military service.
SPEAKER_00 (39:13):
Muhammad Ali during the Vietnam War.
SPEAKER_01 (39:15):
That's right.
That's right.
Yeah, Muhammad Ali is is yeah,perhaps the most iconic example.
And and there are others.
I think before Vietnam, wehadn't had a war that was quite
so controversial.
Yeah.
But when you get back into thehistorical record, one of the
things that I'm struck by isthat many m wars that we we
memorialize today as having beenthese great and morally
(39:40):
righteous struggles like WorldWar II actually were deeply
controversial at the time.
SPEAKER_00 (39:47):
And that's, I think, the interesting thing about
history, right?
So that kind of takes us to ourlast piece.
We've talked a lot about theFederalist Papers, the musical
Hamilton, very famous.
People think like, well, theFederalist Papers clearly were
so important back in the day of,you know, framing and ratifying
the Constitution.
(40:08):
But I think you're going to tellus a different story.
SPEAKER_01 (40:11):
It pains me to say this, Liz, because I am a
Hamilton biographer and Hamiltonis the central figure in the
Federalist Papers.
But the commonplace assumptionthat many people make,
especially judges today make,that the Federalist Papers are
all important for understandingthe Constitution is on shaky
historical ground.
(40:32):
The Federalist Papers were, as Imentioned, written for a New
York audience to try to persuadeNew Yorkers to send
pro-constitution delegates, alsoknown as Federalists, to the
state ratifying convention inPoughkeepsie.
New York was going to beabsolutely crucial to this
enterprise of re-establishingthe country under a new
(40:56):
constitution, because even ifyou met the minimum threshold
required for the constitution totake effect, which was nine of
the 13 states, the constitutionwould only take effect in the
states that ratified.
And New York was central to theunion geographically,
economically, politically, andwithout New York's votes, even
though the nine-state thresholdhad been passed before New York
(41:19):
State Ratifying Convention, itwas very unlikely that the union
would survive.
And so New York was crucial.
And yet, despite the publicationof the Federalist Papers, New
Yorkers, by a two-to-one margin,send anti-federalists to the
state ratifying convention.
Even the chairman of the stateratifying convention was an
(41:42):
anti-federalist.
And it is only thanks toHamilton's oratorical prowess
that he is able to move thedelegates in attendance to
narrowly, by a 30 to 27 vote,ratify the New York State
Constitution for the New Yorkersto ratify the U.S.
Constitution.
(42:02):
It was the narrowest vote of anyof the state ratifying
conventions up to that point intime.
And it was not at all a foregoneconclusion that the Constitution
would be ratified.
It required a lot of hard workon the part of people like
Hamilton.
Today we often remember theConstitution in these very
(42:24):
reverential tones, and it would,everyone pledges their faith to
the Constitution as a kind ofsecular religion in America.
But the truth is it was deeplycontroversial.
Ratification was not at all aforegone conclusion.
Many of the anti-federalistssuggested, well, it's only been
four years since the war withBritain ended.
(42:45):
The Articles of Confederationhaven't had a proper chance.
And they were worried that if wepass the Constitution, we're
going to have a much morepowerful central government, and
that we're going to have apresident who acts like a king,
and we're going to have a Senatewho's like a House of Lords, and
their aristocratic arrangementis going to be protected by a
standing army, and we will havefutilely fought a war for our
(43:07):
independence only to revert backto British tyranny.
Only it would be conducted bylocal American elites.
And so they were deeply worriedabout what the Constitution
would mean for individualliberty.
And I would argue, and I thinkthe likes of Hamilton would
argue, that what we see in theU.S.
(43:31):
Constitution is that having afederal government that has what
the founders would call energy,that is efficacious, that is up
to the challenge of leadership,does not necessarily mean that
the government is going toencroach on the liberties of the
people.
It just means that the peoplehave to be vigilant over their
(43:51):
government to ensure that theirliberties endure in perpetuity.
So all of this aside, what I'llsay about the Federalist Papers
is that they are significant forunderstanding how the authors of
the Federalist Papers thought.
And they can be very usefultools for thinking through the
(44:12):
original intent of the framers.
But if we talk about theoriginal intent from the
perspective of original publicmeaning, which is to say, what
did the words of theConstitution generally mean to
Americans at the time, which ishow some originalists apply
originalism.
They don't look to framers'intent, they look to original
(44:34):
public meaning.
I think that the Federalistpapers are arguably of more
limited value in understandingthat original public meaning.
Now, the question of the meritof originalism as a school of
constitutional interpretation isa separate question than whether
a given piece of evidence isuseful in service of that
(44:56):
particular interpretation.
So I'm not here today endorsingor repudiating any particular
school.
Again, I'm wearing my historianhat very happily.
But I do think that if we aregoing to look at original
intent, it's important thatjudges and citizens be clear
about do we mean the intent ofthe framers?
Do we mean the intent of theratifying conventions that gave
the Constitution legal force?
(45:17):
Do we mean original publicmeaning?
And once we've determined whichwe're interested in, then we
have to ask, well, what kinds ofevidence count as legitimate in
discerning that intent?
SPEAKER_00 (45:30):
And that's the first time I've ever heard original
public meaning.
And I'm like, I can't wait todig into that because it's so
fun.
So we are wrapping up.
But before we do, one of thejobs you have here at SQL is the
director of graduate studies,and we have a master's degree.
Do you want to talk a little bitabout that?
Because I'm assuming listenersare like, this was really fun.
(45:54):
Where can I get more of thiskind of conversation?
SPEAKER_01 (45:59):
That's a very generous question, Liz.
We do have a master's programhere at Skettle.
It is called the Master's inClassical Liberal Education and
Leadership.
It is a hugely exciting programthat is geared towards K through
12 teachers who are interestedin history and civics.
It's geared toward people whomight want to pick up a master's
(46:21):
degree en route to applying toPhD programs.
It's a great degree for anyoneinterested in civic leadership.
This is a program where studentscan come and study the iconic
thinkers of the Westerntradition from Plato and
Aristotle through Locke andLincoln.
We went out and got the bestMadison scholar in the country.
(46:45):
We went out and got the bestLincoln scholar in the country.
And we've brought them here tothe desert.
We've brought them to Tempe.
And we have just a world-classfaculty.
Our courses are all Socraticmethods, small group seminars,
and we offer a real contentfocus that can be hard to find
in some other competing master'sprograms.
(47:09):
And so we've been very happy tohave great faculty.
We've been happy to be able torecruit great students for those
people who are interested inpicking up the degree part-time.
We are very much geared towardsyour schedule.
Our courses are all in theevenings, and we're going to
start offering uh summer classesjust starting this summer.
And we are fortunate to be ableto offer significant
(47:32):
scholarships to worthyapplicants.
And so this is a great timewhile the program is still
small, and we have a lot ofscholarship money to apply.
And I would encourage anyonelistening to look me up on the
Schedule website, shoot me anemail, let's find a time to
chat.
And I would love to talk to anyinterested prospective
applicants about our master'sprogram.
SPEAKER_00 (47:54):
And I will put links to your page and to the
master's.
I did also want to bring up thatthe James Madison Memorial
Fellowship, if that is somethingthat listeners are interested
in, they pick one teacher a yearper state.
And the Madison Fellowship hasrecognized this master's degree
as one that they will help fund.
SPEAKER_01 (48:16):
That's right.
This is one of their endorsedmaster's degrees.
And so if you win one of thesevery prestigious fellowships
from the Madison MemorialFoundation, there are a number
of universities you can take itto.
We prefer that you take it hereto schedule.
Whether you are out of state orin state, we offer classes not
(48:40):
just in person, but we alsooffer many of our courses
online.
And so wherever you are in thecountry, if you are listening to
this and you're interested inthis master's degree, whether
you're a James Madison MemorialFoundation Fellow or otherwise,
you can be a part of thisprogram.
And one of the reasons that westarted just this summer
inaugurating a week-long summerinstitute is so that we can fly
(49:03):
in our out-of-state students sothey can have a week-long
on-the-ground in-personexperience.
SPEAKER_00 (49:08):
As a side note, it is not in Phoenix.
It is in Flagstaff, correct,where the temperature is much
better than Phoenix's.
SPEAKER_01 (49:15):
That's right.
For our students, we say, getyourself to Phoenix and we'll
take care of the rest.
We have a grant.
We're funding the travel foreverybody to get up to
Flagstaff.
We're posting up at NorthernArizona University.
Your lodging and youraccommodation is all is all
covered.
And in fact, if you apply forthe master's program now, it is
not too late to get in on ourfirst ever summer institute.
And it'll be a three-creditcourse that I am teaching called
(49:37):
Constitutional Controversies.
So if you are interested in someof the topics that we've heard
today, there is much more to bediscussed and debated.
SPEAKER_00 (49:47):
And I love, I mean, I have a master's degree.
I got one a really long timeago.
And the only reason I'm notdoing this one is because I'm
doing my doctoral studies, but Ihave learned from a lot of these
professors.
And I love that it's contentfocused.
So we're really trying to helpteachers strengthen their
content knowledge because as acenter and as a school, we
(50:08):
believe that the more contentstrength that you have, the
better you are as a teacher, thebetter we can prepare these kids
for civic life, all of that funstuff.
So definitely look.
I'm going to put all of thisstuff in the show notes for you.
Even if you're listening to thisin a year, check it out.
You just never know.
Are there any final thoughtsthat you have, Andrew, before we
(50:31):
end our podcast?
SPEAKER_01 (50:32):
I'll offer one thought about the Constitution
in closing.
You know, one of the thingswe've discussed today, Liz, is
how there is some ambiguityaround the meaning of the
impeachment clauses.
There are compelling argumentson both sides.
There are compelling argumentsabout the meaning of the Second
Amendment.
There are ways in which theConstitution has become
(50:53):
interpreted that may go afieldfrom what the founding
generation intended.
And what are we to make of thesecontradictions, these nuances,
the indeterminacies of thehistorical record?
It can be frustrating.
We want to look to theConstitution to answer the very
real dilemmas that bedevil ourrepublic.
(51:14):
And we may lament the fact thatthe Constitution does not give
us clear answers to so many ofour problems.
But I would argue that to lamentthe shortcomings of the
Constitution in that regardwould be to miss its point.
The framers lived through amoment of history where people
(51:37):
stopped yelling at one anotherand started firing at each
other.
They saw politics descend intoviolence.
And they created a constitution,not necessarily to resolve all
of our debates, but rather toinstitutionalize the debates, to
create legislative chambers,courthouses, and executive
(51:59):
offices where the politicalchallenges of our day, of any
given generation, can be dealtwith peacefully.
And they did not suffer anyillusion that a country with as
(52:22):
much ideological diversity asAmerica's always had would
somehow come to harmonize undera single unified view.
Indeed, even the very people whowere at the Constitutional
Convention almost immediatelythereafter disagreed about what
various constitutional clausesmeant.
(52:43):
What they have bequeathed to usis not a set of answers.
It is not an array of solutions.
Rather, it is a set ofinstitutions through which we
can channel these fierce debatesmore peacefully.
And here we are now in 2024 onthe brink of our 250th
(53:08):
anniversary as a country, whichmakes us actually much younger
than a number of othercountries, much younger than
many other societies.
And yet we have a constitutionthat is the longest serving
national constitution inexistence anywhere in the world.
Its longevity is the ultimatetestament to its success, not in
(53:30):
resolving our problems, butrather in creating peaceful
forums through which tovigorously debate them.
And as we approach this nextquarter millennium of our
existence as a republic, theConstitution endures and that
debate lives on.
SPEAKER_00 (53:48):
Perfect.
Thank you so much, Andrew.
This has been so much fun.
And I can't wait to do aHamilton one with you.
SPEAKER_01 (53:55):
I'm excited.
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