Sen. Jeremy Moss & Constitutional Scholar Richard Primus

Richard Primus works with constitutional law on the state level as well as the federal level. He has helped state governmental agencies, nonprofit organizations, His writing has appeared in many leading law reviews as well as in The New York Times, The Atlantic, Politico, The New Republic, and Foreign Affairs. Opinions of the justices of the US Supreme Court have cited his scholarship.

Episode Transcript

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You're listening to the United to Preserve Democracy and the Rule of Law

(00:04):
Speaker Series presented by Democracy First. Join us for a conversation with
constitutional scholar and the Theodore J. St. Antoine Collegiate Professor of
Law at the University of Michigan, Richard Primus. This conversation was
recorded in West Bloomfield, Michigan in October 2024 and was moderated by
Michigan State Senator Jeremy Moss.

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Dr. Primus, your work on constitutional history sheds light on how the U.S.
Constitution was framed to prevent tyranny and to protect democratic
governance. So I would like you to start off by at least illuminating for the
room here tonight. Can you talk about the basic theory that animated the

(00:48):
framers of the Constitution and some of the key mechanisms that they created to
guard against tyranny and corruption? Sure. And thank you for coming to
moderate the discussion. Thank all of you for coming out to participate and
thanks to the organizers also for inviting me. The framers of the

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Constitution were acutely aware of an important fact about the human condition
which is that governments fall. All governments eventually fall. By the
time they wrote the Constitution they had been through two regime collapses in

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their own adult lives. First the collapse of the British colonial administration
and then the sort of running a ground of the system under the Articles of
Confederation. And they thought it was really important if they were going to
try to do something better to be attentive to what it is that makes

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governments decay and fall. They were close to obsessed with historical
learning about the fall of governments. They read a lot about Rome and how Rome
went from being a healthy republic to being something that was corrupt at the
core and would fall. And they were primarily worried about two things

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because they wanted to have a democratic republic. They were clear about that.
Different kinds of governments are vulnerable to different kinds of
pathologies and the question is what are the kinds of things that might make
that kind of government decay and fall? And the framers came to two answers.
There are two things. One is the thing that we call the tyranny of the majority.

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A situation where you have 51% that calls all the shots and runs roughshod
over the lives and interests and rights of the other 49%. That's not sustainable.
And the other is corruption. The kind of corruption that causes elections to be

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unreliable or simply to put in place people who will not act in the public
interest. Officials just to be corrupt in that sense. Those were the two
things that they most wanted to avoid. And they designed a system that was
intended to be responsive to those two problems. So to meet the problem of the

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tyranny of the majority, they gave us what we know is the system of checks
and balances. The idea that rather than putting power anywhere where one
majority could control it, they would divide it up a bunch of ways. In their
day, it was well understood that the most dangerous branch of the government

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was the legislature. That's where the real power was and therefore that's where
the danger was. So that's what had to be checked the most. That's why we
have a bicameral Congress. And why most American states have bicameral
state legislatures. We don't divide the other branches in the same way.
We divide that one because it's the most powerful branch. And it's easy for

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some self-interested cabal to take control of one meeting than to take
control of two separate meetings. So the thought was divide the
legislature. The presidential veto was also a kind of check that was supposed
to work that way. The courts were actually much less of a check than now,

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but they played some checking role. That's one set of mechanisms. That's
one set of mechanisms. And it's the set that was designed to meet the problem
of the tyranny of the majority. But the framers knew that a structure, no matter
how clever, would not be sufficient to let the Republic operate and thrive

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properly if the people in office lacked all civic virtue. They didn't
expect office holders to be paragons of virtue. James Madison in the Federalist
Papers famously writes, if men were angels, no government would be necessary.

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So they understood they were planning a government in which the office holders
would be flawed human people. But we're all flawed. The question is,
can you have flawed people who have enough civic virtue, enough public
mindedness, that they can carry out the system properly rather than one that
just becomes corrupt and self-interested? So they needed mechanisms for trying to

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recruit office holders that would have at least a tolerable amount of civic
virtue. And they did it in two core ways. The first was to emphasize the
importance of local government, very local government. And populations then
were much smaller than they are now. So constituencies were much smaller

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than they are now. And the thought is, you can fool a bunch of strangers.
It's easier to con a crowd of strangers than it is to con 50 people
who live in your neighborhood who interact with you day to day. So if they
could have a bunch of government be local, that would screen out a bunch of

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the people who had no civic virtue at all. Because their neighbors wouldn't
hand them power, right? So hence federalism. The other mechanism was for the
most powerful positions at the national level to have indirect mechanisms of
election that would vest judgment in people who were informed about the

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candidates. We had indirect elections for the Senate in the beginning and most
importantly, oh there we go, and most importantly we had the Electoral College.
The Electoral College, as the framers understood it, was a very different
institution from the one that we have now. It fulfilled a very, a critically

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different function. Today, right, what we all know, what the Electoral College does
is it translates the power of each state into a certain proportion of the power
to elect the presidency, but the electors themselves are rubber stamps, right?
They don't make any decisions about who the president should be. That wasn't
the framers conception. The framers conception was the electors are actually

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the electors. They are going to exercise independent judgment and make the choice.
And the reason was they understood you can con a great big crowd of strangers
much better than you can con a small group of people who are informed and
experienced and chosen for their judgment. So the idea was that by selecting

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the president through a small group of people who were relatively well informed,
they could avoid the thing that they were most concerned about in the second,
right, dimension, which was the demagogue, right? The corrupt demagogic leader who
rides to power on the basis of conning a large part of the public and takes power.

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The system was set up to prevent that. Those were the critical mechanisms, right,
to do those things for the framers to try to keep the government healthy.
So you're talking about what they were thinking in 1787, 1788. We're living here
in 2024, far removed from that. What mechanisms, how have they changed over time,

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and what, which of those mechanisms still kind of remain the same today?
Okay, so some things are the same, right? We still have the basic architecture of
the separation of powers. We still have a bicameral Congress. I'm sure Senator Moss
knows this very well. Sometimes the checks and balances of a bicameral
legislature are intensely frustrating. Intensely frustrating, right? I mean, if

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if your party won the most recent election, you would like to get things done,
right? And when you would like to get things done, checks and balances are a
pain in your neck, right? But the Constitution exists to protect us from
our own best intentions, right? Sometimes, like, that's the price we pay for avoiding

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tyranny and certain kinds of corruption, right? And we still have the bicameral
Congress. The presidential veto is a stronger checking mechanism now than it
was for the framers. In the early years of the Republic, vetoes were rare. In fact,

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there was a considerable school of thought at the beginning that the
president should veto only a law that he thought was unconstitutional in the way
that we think of now as the court's striking something down, that policy
disagreement was not ground for a veto. That fell away over time, right? But in
the framers era, that was the basic thought. That means on the one hand we

(10:13):
have more of a check. On the other hand, it means we have a much more powerful
presidency, right? Than we had then, right? And the courts are more of a check now
than they were earlier. But we, but, right, and mentioned this earlier, we have

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also lost some of the mechanisms. We've lost the mechanism of indirect
election and the electoral college, right? We don't have that safety net
anymore. The importance of preventing self-interested corrupt demagogues from
exercising a lot of power is as strong now as it ever was. But now the

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responsibility to block the demagogue from taking office rests solely on the
voters, solely, right? There's no institutional mechanism as a backup, right?
If the voters don't come through. Talk about the evolution of the voters. I
mean, so the framers didn't see so much power being held in the voters

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originally. What would they be, what would they think of the voters'
participation in a presidential campaign or in our election system? So it's
super hard. This is always a thought experiment that people ask constitutional
lawyers to do, right? What would the framers think about? And it says really
hard thought experiment because you have to ask this question. When I, if you

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imagine, like, I now have a line to James Madison and I can have a
conversation with him and ask him what I'll describe something to him and ask
him what do you think about this? What other information do I give him, right?
Like, am I expecting him to be who he was circa 1800 and evaluate or do I get to
explain to him all the ways that the world has developed and changed from

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1800 to now, right? Because if you imagine that, I mean, look, he was a smart and
inquisitive sort of person, right, flawed human being, right, but like actively
thinking about what to do. I imagine that to answer that question he would have
some questions for us, right? How did you get from the world I knew to the world
in which you're asking me this question? Tell me that before you ask me for an

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opinion, right? And my best guess is that if the framers were to be educated about
what has happened in the succeeding 200 years, they would think about these
questions not so differently from the way that we think about these questions,
right? They would become us more or less. Now, they would bring some of

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their own preoccupations with them, right? Americans alive today have, if they've
lived their whole life in this country, have no experience of regime collapse,
right? We take the rule of law for granted. The rule of law is not the

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natural condition of humanity. It's not how most people have lived most of the
time. It is an exception and it's not magic that once it's there, it stays. It
needs tending. People who have been through regime turmoil probably have a

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finer sensitivity to that than people like most of us who have not. Because the
framers lived through something like that, right? I imagine that after we
brought them up to speed about what the world is like now, right? They would keep
one eye firmly on that set of concerns in whatever opinion they would express

(14:01):
about what we ought to do next. One thing that they did not put in the
Constitution and something that we have just this expectation is how of how
government works is the two-party system. Can you talk about how that
has evolved over time? And again, if you could call Benjamin Franklin, what

(14:23):
do you think that he would say or what do you think James Madison would say
about the partisanship, the two-party system that we have here today that isn't
going to change anytime soon? Sure. So as you said, the Constitution was
written to function without political parties.

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The word that Madison uses in the Federalist Papers to mean what
we mean by a political party is faction, and it's a dirty word. Madison
conceives of faction or party as the most dangerous thing about a
democratic system because it can be a cabal that pursues some interest that

(15:10):
isn't the general public interest, right? And so the Constitution was written to
function without political parties. Humanity being what it is, it didn't take
long for political parties to evolve anyway, right? It took about a dozen
years, and ironically with Madison being one of the most important organizers of

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political parties when they came about, right? And the first crisis, and so when
you have a system that's built to work not with political parties and turns out
there are political parties, that could go a bunch of different ways, right? It
could mean breakdown or it could mean accommodation. For the first half of the

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20th century, they managed to find an accommodation, and the key thing that
enabled the accommodation, the key moment that enabled the accommodation, was the
transfer of power in 1801 from John Adams to Thomas Jefferson. 1796, George

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Washington retires, Adams and Jefferson run against each other for the
presidency, Adams wins. Four years later in 1800, the same two candidates run
against each other, and there's a more crystallized party system this time, and
Jefferson wins. Now what does that mean? It means that for the first time in the

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history of mass national democracy, ahead of state, like the person to whom the
military responds is being asked to go away, to voluntarily step away from that
power for no better reason than that there was an election that shows someone

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else, right? We say, well of course, that's how it happened. It had never
happened before, right? It had not happened before.
Washington handed off to Adams no big deal. Adams was what Washington's chosen
successor, right? And it was not clear that it was going to happen peacefully.

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There were state militias on one side or another that were prepared to march on
Washington, right, in favor of their preferred candidate. It didn't come to
that. It didn't come to that because neither Adams nor Jefferson wanted it to
come to that, most importantly because Adams didn't want it to come to that.
Right? It helped that Adams and Jefferson had mutual respect personally. Even

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they had worked together. They disagreed about a lot of things, but they had also
been through a bunch together. They recognized each other as patriots, as
capable people, and Adams was wise enough to recognize, well, I tell my
students when I teach introductory constitutional law, the first rule of

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constitutional government is also the first rule of playground basketball. The
rule is no one can get bigger than the game, right? Like, you have to be willing
to take your losses, right? If winning is more important than respecting your
opponent in the spirit of the game, the game will break down. There will be no

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game, right? That is indispensable, right? Adams understood that, right? And he
didn't like the idea that Jefferson was taking over, but he said, but this is how
it is, right? And he stepped away. That set a good precedent, and it was a
precedent that lasted for about half a century, right? It lasted until a

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different party competition deepened over the issue of slavery, right? So the
Republican Party comes into existence in the 1850s as an anti-slavery party, and
it becomes the party of the North. The Democratic Party is mostly the party of
the South, and it's a pro-slavery party. And the first time a Republican nominee

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for president wins, right, Lincoln in 1860, most of the Democratic Party
instead of saying what Adams said in 1800, they say, no, we don't accept this.
We're taking our ball and going home. We're out, right? The system broke, and

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this gave us the Civil War, right? Which killed off more than 1% of the
population and was an enormously destructive, tragic event, right? But it
taught a lesson, because the generation that came to leadership after the Civil
War was one of those generations that had been through a society in collapse,

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right? They were sensitized to what that was like, and what they had learned was
it's not good to have a Civil War, right? It's not, right? It's much better to work
to keep to the playground basketball rules and not to do that. It took until
the 1890s to really work it out. But by the 1890s, the two parties sort of

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coalesced into a tacit arrangement that's something like a cooperative
competition, right? A game of tennis or a game of playground basketball is
cooperative competition, right? It's a competition. Each party wanted to win
each election, right? But it was cooperative in the sense that they
understood that they were playing a game with each other that they intended to

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continue and that each side needed the other not to burn the thing down, right?
When they lost. And on the understanding that that was better than Civil War, they
managed. There's a piece of this that Americans don't usually remember,
because we have very little space in our historical memories for the Spanish

(21:17):
American War. Like who cares about the Spanish American War? In 1898, we have
the Spanish American War. And the significance of it is it's the first
time since the Civil War that people regardless of party are fighting
together. Same side, shoulder to shoulder, right? It consolidates the idea that we

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have party competition, but they're not the enemy. The enemy is out there, right?
And that sense lasted, right, and kept the two-party system functional within
the constitutional structure for about a hundred years, right? Through a time when
the lesson that the Spanish American War enabled was often reinforced, right? The

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20th century is full of external threat. World Wars, Cold War, right? With that as
background, the leadership of both political parties know that one of their
highest responsibilities is to cooperate with the leadership of the other
political party, right, in defense of the system as a whole against the real

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threat, which is outside. Like we disagree with each other. We're competing. I
would like to beat you at the next election, and you would like to beat me,
right? But we're all on the end loyal to the same constitutional system, right?
The real enemy is out there, and that means we need playground basketball rules.
That enabled... here are a couple of really good examples of things that that

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enabled. In 1960, Richard Nixon and John Kennedy run for president. They did not
like each other, right? The election was very, very close. Kennedy won, but there
were a lot of people in the Republican Party who thought that Nixon should like

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go to the mattresses challenging the result because it was very close, and
there were people in the Republican Party who thought there was a shenanigan
here and there was a shenanigan there, and Nixon is the rightful winner. And
Nixon said no, right? He did what Adams did, right? And said no, like we don't do
that, right? We don't... because if we push all the way to crisis, there's no

(23:41):
safety net, right? So like I'm gonna step back. 40 years later, the shoe's on the
other foot in the partisan sense, but it's a replay, right? The election in
2000 between Al Gore and George W. Bush, extremely close, heavily contested. A lot
of people in the Democratic Party, right, with the belief that Gore was the real
winner of the election, and... but there was a legal process which awarded the

(24:06):
presidency to Bush, and Al Gore went on national television and said, I accept the
decision, right? Because Nixon in his turn and Gore in his understood, but
Adams understood, right? That the system works on playground basketball rules and
not otherwise. It's really interesting. I mean, we think about the peaceful transfer

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of power from administration to administration, and I kind of kind of
look at that George Washington decision to retire as the hallmark of that. But
really, it's the John Adams decision after losing an election that really has
set the foundation of what successive presidencies have done. I think that's
right. I mean, constitutional democracy requires the buy-in of the losers of

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elections, right? There's like... it's indispensable. Without it, you're not
operating constitutional democracy. We've talked a lot about presidential
politics and the evolution of that over time. You tease this in that 2000

(25:18):
election example, the role of courts. So, you know, when most people think about
the Constitution, they think about the court system. How has that evolved over
time? Talk about its role. Okay. So, we today think of the just basic civics, right?
We think of the federal government and most of the state governments as having

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three co-equal branches of government. It's never been the case that the three
branches were all equally powerful. And at the founding, the courts were the
least powerful branch, and they stayed not very powerful relative to the other
two branches through most of the 19th century. We all know, right, Chief Justice

(26:10):
John Marshall and Marbury versus Madison establishing the idea of judicial review,
right, that the court has the power to say that the law is unconstitutional.
Before the Civil War, the Supreme Court exercises that power a bunch of times
with respect to state laws, but essentially never with respect to
federal law, right? There are exactly two cases before the Civil War in which the

(26:32):
Supreme Court gets in the way of the federal government. The first is in
Marbury, where they don't really get in the way. I mean, it's a longer intricate
story, but you may know that what actually comes out of the Marbury case is a
political victory for the Jefferson administration. So, the court is not

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getting in the way, right? The only other law before the Civil War that the
Supreme Court ever said, federal law, that the Supreme Court ever said was
unconstitutional, was the Missouri Compromise. And by the time they said
that, the Missouri Compromise had been superseded by statute for years, right?
It wasn't even the law anymore, right? Why did the court never strike down

(27:18):
federal laws or get in the way of the federal government at all, really, before
the war? Because it didn't have the legitimacy or the buy-in to do it. For a
court to be able to practice judicial review against the political branches of
its own government, it needs people to have a strong sense that the court is

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not just some other partisan actor, and it needs to have the buy-in of the major
political powers so that they don't, when they lose, say, we're just not listening,
right? And the Supreme Court was not an institution like that before the Civil
War, because you probably know this. The Supreme Court that we know has nine

(28:01):
justices, but the number nine does not appear in the Constitution, right? Under
the Constitution, Congress, by statute, sets the size of the Supreme Court. And
before the Civil War, the consistent practice was that if your party took
control of the presidency and both houses of Congress, you would pack the

(28:22):
court. You would change the number of justices on the Supreme Court so that
you could ensure that judges from your own ideological coalition would dominate
the court, right? Over and over again, right? This happened, through the 1870s.
Between the 1870s and the end of the 19th century, as part of the same, like,

(28:48):
coming to appreciate that pushing all the way to crisis is bad, that gave us a
stable two-party system, the two parties also said, maybe we should stop packing
the court, right? If, now, it requires mutual confidence, right? The Democrats
have to be confident that the Republicans are not going to pack the court, and
the Republicans have to be confident that the Democrats are not going to pack the

(29:09):
court. But once they reached that détente, the courts could then be an
institution that was sufficiently independent of the other branches,
that it could have the legitimacy to say, no, this is unconstitutional, or to
stand up to the other branches, and to be relatively confident that other

(29:31):
government officials, including the ones who, like, command the army, will not
just roll over them. But it requires the buy-in of the two political parties, right,
to that idea, and that requires each political party to have confidence that,
like, sometimes you're gonna lose, and sometimes I'm gonna lose, and we're both
gonna take our losses. And because that détente was reached, the Supreme Court,

(29:54):
through the 20th century, became a significantly more powerful institution,
and much more like the institution that we know today. But the Supreme Court, not
just the judiciary as a whole, I mean, indispensable important. Again, the rule of
law is not a thing to be taken for granted. I have a very wise colleague who

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says, people who are inclined to doubt the value of the rule of law should
contemplate carefully what life is like in societies where it is missing, right?
And a well-functioning independent judicial system is really important for
the rule of law. But it is a mistake to forget that it is the least powerful

(30:39):
branch of the government, right? It functions only with the permission by the
buy-in of the other branches, right? The great Justice Robert Jackson, who served
on the US Supreme Court for a long stretch in the middle of the 20th century,
and who, in addition to being a justice to the Supreme Court, was the chief allied

(31:01):
prosecutor at the Nuremberg trials, right? Someone who knew something about
societal collapse and demagoguery said over and over again, if the rest of the
government becomes tyrannical, if there is a president who wants to be a
dictator, we the court will not be able to stop it. We do not have the heft to be

(31:29):
able to do it. We can put up a little resistance for a little bit of time, but
the only power sufficient to stop a president who wants to be a bully, right,
a dictator is the electorate. Good segue, talking about where we are right now and

(31:50):
the electorate before us. You know, part of the core tenet of democracy first is
making sure that we're electing the right type of person. I'm not talking
liberal or conservative or Republican or Democrat. I'm talking about people who
will follow the rule of law. And the people who, in your example, know that

(32:13):
the game is bigger than the players. So thinking of the things that have happened
over this last century that have kind of contributed to the precarious moment
that we're in right now, what do you think are those factors that have
contributed to it? I think that you can include the diminished experience of
office holders. I think that you can include the problem of disinformation

(32:33):
and misinformation and foreign interference in our politics. So leading
off of those two things, and you can expand on that, what are things that
have contributed to where we are right now? So I think you've named the most
important ones. The political parties, the major parties, used to vet

(32:59):
candidates for office in ways that they mostly don't anymore. Not that there's
no party vetting, of course there is, but it used to be that if you wanted to
hold high office, chances were you had to work your way up from small office
first. You would hold some local office, which means you had to be

(33:25):
the sort of person whose neighborhood was willing to trust them. You would
work your way up, maybe you would serve in a state legislature, you would get
some experience. A lot of other people in your community would learn whether you
were trustworthy and whether you were capable. And if you were, you could
gradually work your way up. The downside of that system was that high

(33:52):
office was mostly reserved for members of an insiders club. That's a
downside. The upside to that system was the people we got in high office
were mostly pretty capable. Not all of them, like at any time slice of
American history, you'll find a certain number of bozos in high office. Can't

(34:13):
be helped. But that was the trade-off. If you think about the run of
presidents we had in the through the middle of the 20th century, at the
time that I identified as when the two-party system tended to work well
here, let's say like from FDR to the end of the Cold War to George H.W. Bush,
if we all sat here in the room and ranked them, we would have different

(34:38):
views about who were the better and worse presidents during that time, right? And
none of us is gonna like all of them. But as a group, they were a pretty capable
bunch of people, right? They were all like experienced public servants with
views of the public interest and so on and so on and so forth. In our century, the
parties don't perform the vetting function nearly as much as they used to.

(35:01):
Partly because of the way the campaigns are funded now, it's much easier for
people with no public service experience and no experience being
responsible to an actual local constituency to just decide I want to be
senator or I want to be governor, right? And run directly for that office or even

(35:24):
for president. And when people come to the office that way, it means they haven't
been vetted, right? By the local community or by people with experience
operating the government. It also means they're more likely to be people who are
accustomed to just calling the shots how they want them, right? Because they're

(35:47):
not people who got there by like working with other people, right? They're people
who got there by just forcing their way in in some sense. So that's a problem. The
other big thing that I would point to is the information environment, right? So
through the Franklin Roosevelt to George H. W. Bush stretch, we had a pretty good

(36:12):
information environment in the United States for constitutional democracy. It
was the era of radio and then television and the structure of the news
industry was such that there was a limited number of suppliers competing
with each other, right? I mean, in the second half of that period, it's three
major national television networks. And they're all competing for the same

(36:36):
mainstream audience, right? Which means they don't have like distinctive partisan
slants. They get a lot of commonly shared information out to a very broad public,
right? That's really useful, right? I don't need to... We all have a much more
fractured information environment today. It's an environment where many people are

(37:00):
never confronted with facts that they don't like or, you know, discount. And the
problem of foreign disinformation is one that I don't think we have a solution.
I mean, imagine how much the leadership of the Soviet Union would have loved to

(37:23):
be able to run a social media disinformation campaign against candidate
Ronald Reagan in 1980, right? Had the technology and the information
environment at the time been conducive for it. They would have gone to town, right?
It could have changed the course of their history, right? We face that problem today,

(37:48):
you know, quite seriously. We don't have a solution for it yet. I don't have a
solution for it. I know one thing that can help at the retail level. That is to
say, it's not something that like will solve the problem for millions of people,
but it's a practice that I recommend when people ask me, what can I do about this

(38:09):
just in my own citizenship? And it's this, when you're thinking about who to
vote for in an election, whatever your partisan priors are, right? Look at the
candidate who the party that you usually favor is nominating and then see if you

(38:30):
can just a little bit of research, right? I mean, Google for 10 minutes. Can you find
people affiliated with that same party who are saying, I'm not supporting this
person and giving reasons, right? Those people are more likely to be reliable
sources of information than other sorts of people speaking about it because

(38:53):
they're not just prosecuting a partisan interest, right? Something about that
candidacy bothers them enough that they're going against their usual
interest. It's a general principle in the law that a statement against interest is
considered credible, right? Because why would you be saying that? I don't think,
we don't have the kind of society in which we can force everyone to do those

(39:16):
10 minutes of research, right? But in your own individual choices or the people
ask you what can I possibly do, that's my first recommendation. I want to go back,
that's profound. I mean, that's a really good piece of advice for people who
are facing choices in front of them. I want to go back to something you had
mentioned. There used to be a time when you ran for office and you listed

(39:41):
your credentials and those credentials could include congressmen,
senator, governor. That was an asset. Now it seems like the asset for some
candidates is saying, I'm an outsider. I'm not part of the institution. I have no
experience. That's my benefit to this role. How did that evolve over time? How
did that evolve from FDR to where we are today? So, you know, it's complicated. It

(40:06):
waxes and wanes. There have always been two competing impulses
that are present, right? One is trust, experience, and steady hands. And the
other is throw the bums out, right? And democracy works well when a majority of
the people know which one is the better choice at any given moment, right? Without

(40:31):
the possibility of throwing the bums out, you have no constitutional democracy,
right? And there have been moments when incumbency has been much too much of an
advantage for a healthy constitutional democracy. In many respects, in most

(40:53):
American elections, it's still like that. I mean, the number of uncontested or
virtually uncontested seats in the US House of Representatives, right? For
example, it's very high, right? It would be better if it weren't, because it
encourages polarization, right? The problem, let's distinguish between two

(41:15):
things, though. One is the person who says, I'm not an insider. I'm coming from
the outside. I have some fresh ideas. I'm gonna be different, right? Support me
because I'm different. But who takes government seriously, right? Who knows
that government is hard, right? Government is hard because society is

(41:37):
complicated, right? A person who says, this is all really easy, right? Just put
me in and I'll fix it all, right? Like, you can't run a business or a sports team
or a family that way. You can't run a superpower nation of 300 million people.
Society is complicated, right? The danger, so sometimes people come in without

(42:02):
experience and they bring fresh ideas and it's healthy, right? To have some
number of people like that in the mix. The problem is people who would like to
come in without experience and who don't take seriously that like, this is hard,
this is complicated. I have things to learn, right? I don't have all the
answers yet. One of the greatest American judges never to sit on the Supreme

(42:31):
Court was a judge who may be familiar. Some of you may have been named Learned
Hand, which is a great name if you're gonna be a judge, right? Learned Hand
famously said, the spirit of liberty is the spirit that is not too sure that it
is right, right? The danger is the office holder who has, who with no

(42:56):
experience, like, says, I've got all the answers. Is this been an evolution to
where we are now or has this been a pendulum? Is there a comparable time to
where we are now in American history? Can we expect the pendulum to swing back?
Right. So, well, okay. History never repeats itself, right? It's, ooh, who said

(43:22):
that? Right. But it rhymes, right? There's, there's a, like, I was raised on the George
Santana line that people who don't remember the pastor condemned to repeat it.
It's a very catchy line and I understand what it's supposed to teach us. It's

(43:44):
supposed to teach us to be aware of our history and that's a good lesson. But it's
wrong, right? It's not the case that people who don't remember their history
are condemned to repeat it, because history never repeats itself. History never
repeats itself because society is too complicated. There are too many variables,
right? The time we're living through now isn't exactly like the 1850s or the

(44:09):
1930s or the 1780s or any other, like, time when the foundations of a society
are sort of being questioned, right? It has a little in common with this one and
it has a little in common with that one and it has a little bit in common with
that. I mean, any of you who have families with several children, you know,

(44:30):
like your youngest kid is not like exactly any of your other kids. You can see
some of kid one and kid four and some of kid two and kid four. It's the same thing,
right? So we can draw analogies, right, from earlier times. We shouldn't become
prisoners of those analogies, right? That's a mistake, right? Because

(44:51):
what we face now is not quite like what we faced at earlier times. And, oh, here's
one respect in which it is like what we faced at what people faced earlier
times, right? One one respect. When we think about what are the previous great,
like, challenges to constitutional democracy in America? The 1780s, right, in

(45:15):
the transition from the Articles and Confederation to the Constitution, the
breakdown that leads to the Civil War, right, and the Civil War itself. The
30s and 40s, right, the Great Depression and the Second World War, right? The thing
about us is we know how all the stories come out because we live after, right? But

(45:38):
if you're a person who was living through any of those things, you don't know how
the story comes out, right? You have to do your best in that situation with no
guarantee that the ship comes through to safety on the other side, right? We share

(45:59):
that with them, right? Not with people who lived through the 1860s or the 1940s as
they were 20 years later, but as they were at the time without knowing, right?
Yeah, we can add to the list, right? Like, while it's happening you don't know the

(46:21):
end, right? You do know this, or at least I think you do. Those of us who have known,
all of us have, right, people who lived through times of real crisis. If you live
through a time like that, and almost everybody does at some point if they live

(46:41):
a long life, you judge yourself for the rest of your life on the basis of what
you did during that time period, right? And you have to face that time period
without knowing how it comes out until the work is done.
There are a lot of challenges before us, and it feels like we're living in history.

(47:04):
We can recognize that we're living in that moment, although we don't know what
happens on the other side. So what gives you hope for the future?
Finally, an easy question. My students, I started teaching law school at the

(47:25):
University of Michigan in 2001, and I've always liked my students. I've had
terrific students all along the way. My students now are a little bit different.
I mean generalizations on average than my students at the beginning, and maybe not

(47:48):
in the ways that you're thinking, because I think that my students are
actually systematically different from my perception of what the present
mainstream media image of university students is. Okay, so, okay, I mean like
between you and me, nobody's listening, right? My students are millennials, and

(48:12):
some of them are hotheads, and some of them are winers, but I believe there are
winers and hotheads in every generation, right? There's so much more than that.
They are, for one thing, more ideologically diverse and subtle than

(48:33):
they're usually given credit for. I have students with a wide range of views
about a bunch of different things, and I have excellent conversations all the
time. These are some of my favorite things about teaching them, where whatever
their views are, my job is to make it harder for them to think whatever it
is that they think, right? To teach them the habit of learning to see the

(48:55):
weaknesses in your own idea, right? Because that's how you learn to live with
other people, right? That's how you learn not to assume that you have all the
answers. That's how you learn not to think that the person who disagrees with
you is either an idiot or a liar, right? It helps for humility and it helps for
citizenship to realize that whatever your idea is, it has weaknesses, and I

(49:19):
guarantee you it does, right? My students are mostly quite willing to
realize this, and they, at first, there's unease, right? You're shaking the
foundation, but then they say, oh, this is important, right? They want to lean
into it and think hard and think better, and that, I think, is great. And many more

(49:48):
of my students today than when I started are people who came to law school
because they understand that our society, which has, I mean, we have in a lot of
ways, quite a wonderful society. Like, by the standards of world history, this is

(50:12):
a pretty lucky time and place to be alive, right? But many more of my
students today than 20 years ago understand that our society also has
quite serious challenges, and they came to law school because they want to be
part of the solution. I have always had students who came to law school for that
reason. The proportion of my students who came to law school for that reason is

(50:35):
noticeably higher now than it was 20 years ago, and I think that's great.
Let's give Dr. Primus a round of applause. Thank you all. That's a great way to
close out our formal conversation. Let's do some Q&A from the audience if that's

(50:55):
alright. I see some hands that are already raised, so we have Julian walking
around with a microphone. Speaking of presidential bullying the Supreme Court,
the case of the Cherokee Nation versus the U.S., and when the court ruled in
favor of the Cherokee Nation paraphrasing President Jackson, call out your army,

(51:21):
Supreme Court. Right. That is to say, the reference is to a set of cases that
were decided by John Marshall late in his chief justice ship during the Jackson
administration, where there was a huge complicated corrupt set of land deals
where in the end title depended on whether something belongs to the Cherokee

(51:45):
Nation or to the state of Georgia, and John Marshall and the Supreme Court
ruled for the Cherokee. Andrew Jackson, it may be apocryphal, but as
President said, John Marshall has made his decision, let him go enforce it. Right.
That's the pre-Civil War, pre-1890s state of play. Right. It's the kind of thing

(52:12):
that could happen in a world where the two parties hadn't agreed on a kind of
rule of law détente that you know we as a country were lucky enough for them to
work out, you know, 60 years later at considerable cost.
Question just real quick. Professor, I know that one of your more interesting

(52:36):
discussions is probably, I was a constitutional scholar of my law school as
well, so, but the decision to grant some level of immunity to presidents, nowhere
in the history of the Constitutional Convention was there any discussion of
that, right? None. Okay. Well, wait, I have to be very, very careful. There was no

(52:59):
stenographer at the Constitutional Convention, right? Like, there was no
C-SPAN back then? Like, 55 guys talking all summer long, lots of things were said
about which we had no records, and one of the problems with modern constitutional
interpretation that tries to decide things on the basis of what they said is
we only have snippets of their conversation, but as far as the records

(53:19):
reveal, there's nothing. Okay. Candidate H versus candidate T, and you have a
president B, and candidate H wins by hair, little hair, and three states that
decided it have Republican governors, and candidate T orders those Republican

(53:41):
governors to seize the ballot boxes, thereby turning around those state
electoral college votes. That's an illegal act, or we, it might be. Would
candidate B, or would president B, I won't say their names, but would he be violating

(54:01):
the law or abiding by his immunity and waving future arguments to overturn
that decision if he arrested candidate T? So I don't... All hypothetical. Yeah. So
here's the most important thing. I mean, there's so many unknowns. There really

(54:28):
are, right? Constitutional democracy works best when it's boring, you know, like
when we stay within the moves of the game on which there's something like
knowledge and consensus. I do want to say one important thing, because I think

(54:51):
it's a really important part of the conception of the rule of law, right? No
president should ever arrest anybody. Right? The president is the head of the
executive branch, and the executive branch is responsible for taking care
that the law be executed. But the kind of president who would want to go out and

(55:15):
arrest someone is not someone who should get within a hundred miles of the
Oval Office. It's a personalization of what should be an impersonal function. You
leave that to the civil servants, right? I know... Yes, but I want to, I really want
to emphasize the point, right? Right? It is very dicey. Like, here's part... This is

(55:45):
the playground basketball problem, right? It is very dicey to use force in a mass
democracy, right? To settle an election, right? It's the kind of thing that doesn't
happen just once. If it happens once, it'll happen again, right? That's why it's

(56:12):
so important not to get to that point in the first place. If you get to that point,
everyone is improvising. You do your best, right? But in a
minimally well-functioning system, we find a way not to get there in the first
place. And to that point, because we've talked about that first Adams loss, and

(56:36):
you referenced that 2000 election, talk about how important that was. That maybe
Al Gore had a path if he pushed a little further, you know, to determine that he
had won that election, but he didn't. He respected the rule, that last recount
halt of the Supreme Court. Talk about how important that election was. I mean, I
think... You mean, in terms of it's keeping this game going, I think it was

(57:00):
very important. I mean, I'll say a couple things about it. I happen to think that
as a matter of law, the Supreme Court's decision in the Bush versus Gore case was
wrong, right? I thought so on the day it was decided. I thought so the day before
it was decided. That's been my view very, very clearly. I also think that without

(57:28):
that decision, if you play out the history of 2000, George W. Bush probably
becomes president anyway, which means that I think the Supreme Court
sacrificed its integrity for nothing. But I do think those things. I think
that what was most important about how Gore handled it was not that it altered

(57:51):
who became president, but that it set an example for what a person in his
position, a person who had a good claim, right, could do that in the public
interest at that moment, right? He did not... He said once, right, I disagree with

(58:15):
the decision, and his immediate next sentence was, but I accept it. He did not
go out trash talking the judiciary. He did not go out trash talking George W.
Bush, right? Like he said what he said, right, and he said I accepted the decision,
right, and he was done and... And then had the role of certifying that election on

(58:38):
January 6th. Yes, because the way the system works, right, as we all know, is
that in the normal course of events, the presiding officer when the electoral
votes are counted is the incumbent vice president. There was this wonderful
poignant moment in the counting of the electoral votes that year, where

(59:02):
because the two houses of Congress sit together, right, when they do that, and
there were a few members of the House of Representatives who were from the
Democratic Party who were very riled up about how the process had gone down and
wanted to object to the certification, right? And one of them stood up, right, and

(59:26):
at the appropriate moment for calling for objections, right, and started yelling,
right, and the vice president, right, Al Gore said the chair appreciates it, but
hey, like, right, like he didn't egg, he didn't egg them on, right, he said like,

(59:48):
oh, fine, like, yeah, I too wish that I were becoming president, but we're part
of something that's bigger than that, and that's something that's bigger than
that, like, it's gonna, sometimes it's gonna work out, and sometimes it's gonna
make mistakes, but it's the best technology we have for trying to live

(01:00:09):
together peacefully under the rule of law, and if we forfeit that system, right,
like, then we're in trouble. We're at time, so I just want to thank Dr. Primus
and Senator Moss for such an engaging conversation. Let's give them a round of
applause.