The Lives of the Constitution

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Thursday, June 7, 2018 during a live teleforum conference call held exclusively for Federalist Society members.       

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon our conversation is on the book, The Lives of the Constitution. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today we are very fortunate to have with us the author of the book, Mr. Joseph Tartakovsky, who is the James Wilson Fellow in Constitutional Law at the Claremont Institute and also the former Deputy and Solicitor General of Nevada. Also with us is Mr. Ilya Shapiro, who is the Senior Fellow in Constitutional Studies at the Cato Institute. After our speakers give their remarks today, we will move to an audience Q&A. I do want to let everyone know that Mr. Shapiro will need to leave the call at 2:45, but we will continue if the audience continues to have question and have the conversation continue after that. So thank you very much for speaking with us. Joseph, please begin.

 

Joseph Tartakovsky:  Thanks so much. Thanks so much, Wes. Thank you, everyone, for tuning in. I'll just quickly tell you a little bit about why I wrote the book and the argument and then tell you about some of the people in it.

 

I wrote this book because I wanted to show how it was that we have now entered our third century under the Constitution. It's really an extraordinary thing. No people on earth has lived under a written charter longer. And what I found was it's not only the text of the Constitution, as important as that is, but a constitutional culture—a set of assumptions, and habits, and traditions that, I guarantee you, are just as important as the text itself. And we know this because we see what happens in other countries. Russia has a constitution; not like ours protects freedom of speech and the freedom of the press. But I was living there a few years ago when the State took over the last independent TV station in the country. I mean, did exactly what our Framers had in mind and feared when they ratified the First Amendment. And the extraordinary thing was that Russians didn't care. They just shrugged because they've never had a culture of free press. So they have the right text, but they don’t have the culture, the constitutional culture that makes it a real thing.

 

Let me just quickly tell you about the people in the book before I zero in on a few of them. I picked 10 people, all of whom did or said things that helped create, shape, amend, or challenge our Constitution. Many of them famous; some of them unknown. I tried for the lesser known stories or the forgotten doctrines where possible. I have Alexander Hamilton, the great Founder; James Wilson, another Founder who I'll tell you about in just a second; Daniel Webster, the Massachusetts senator and the most, I think, important voice for the Constitution in the first generation after the Founders; Stephen Field, a justice who I'll talk about; two Europeans, Alexis de Tocqueville and James Bryce, who for a while were rivals for the author of the best book about America ever written by an European, although Tocqueville has since eclipsed Bryce; Woodrow Wilson, to inject a note of controversy; Ida B. Wells-Barnet who I'll talk about in a moment; Robert Jackson, the great Attorney General under FDR and later Supreme Court Justice; and then, finally, the last word went to a legal hero of mine, Antonin Scalia.

 

I'm going to tell you about three of the people. James Wilson is the most important Founder that you've never heard of. He was a Scotsman, came to America in his 20's, became a lawyer, got involved in the war effort. He is the only Founder known to have golfed. And here are some of Wilson's accomplishments: he's one of six men that signed both the Declaration of Independence and the Constitution. He was, next to Madison, the most important figure at the Constitutional Convention, I believe. And you're familiar with some of his work, like the phrase "We the People." He did that. And I always thought it was a nice, historical fact that it was an immigrant that wrote those words.

 

Ratification – he was the first Framer at the Philadelphia Convention to publicly defend the Constitution. He gave a speech called "The Statehouse Yard Speech", which became the single most cited document in the entire ratification debate on both sides, far more important than the Federalist Papers, which, actually, came late in the game and had little influence outside of New York. And, finally, he wrote something called, "The Lectures on Laws." It was the first Con Law course under the Constitution. And this is the most searching examination you'll ever find of the principles that underlie our government. It's just as good as the Federalist Papers. And I think they should be read together. And James Wilson's endlessly interesting because he, in many ways, predicted the future development.

 

To give you one example, he insisted that there should be direct election of senators. And he later won that fight in 1913 in the 17th Amendment. It's just one of many reminders that what we think of as departures from the Founding are often more [of] a belated agreement with one Founder over another. He also believed the president should be a man of the people. I mean, no one talked this way in his time. But that's what we have now.

 

Stephen Field was a Supreme Court Justice appointed by Lincoln. He would later become the second-longest serving justice. He came to San Francisco during the Gold Rush, moved up to the Sierras, which was an absolute wild place. It was like the state of nature, and Field, being the kind of guy that he was, promptly runs for mayor. He actually later said that the strike against him was that he was newcomer because he had been in this town for three days when the other guy had been there for six. But he wins, and he observes that you can be in the most wild place on earth, which California rather was. But it works so long as property rights were respected. Property rights were what held the fragile order together. And he turns this into a constitutional philosophy, this idea that property rights and the right to pursue any lofty calling in particular was just as important as free speech. And few justices think as deeply about economics and labor in the Constitution. I think you can trace to him doctrines like the right to work or the impermissibility of using health and safety justifications for what's actually protectionism.

 

You probably know Field best as the author of the Slaughterhouse dissent, and if you remember that's where New Orleans said that for a quarter century, the only -- there'd be one company that'd do all the butchering for a quarter of a million people, and that the 14th Amendment did not forbid that. Now, Field dissented that. One of the things that I try to show in my book is that constitutional history is like this – that ideas that lose in their day, you'll find them on the march, sometimes generations later. And, for example, in 2013 the Fifth Circuit decided a case involving a Louisiana law that permitted only authorized funeral directors to sell caskets. And a bunch of the plaintiffs, a bunch of Benedictine monks who did carpentry for a living, showed that there was no plausible reason for such a rule, except to protect and enrich these industry insiders. And so you see the Louisiana carpenters succeeded where the Louisiana butchers had failed 140 years earlier.

 

And let me lastly tell you about Ida Wells-Barnett. She was a Black woman, born a slave in Mississippi in 1862. She worked as a teacher in Memphis until the event that changed her life, which was the brutal lynching of her best friend. And she goes into journalism. She starts writing against lynchdom, and she's forced to flee to Chicago, where she starts doing it on a national scale. And she becomes the single most important crusader we've ever had in this country against lynching. At the peak of her fame in the 1890s, she was probably second to Frederick Douglas as a renowned Black intellectual. And she almost single-handedly awakened the conscious of the North to the charade of justice that was lynching in the South. And she even helped changed our constitutional law. And I'll just give you one example of how she did it.

 

She not only wrote about lynching, but she pioneered what we would think of as criminal defense techniques. So she would -- a Black man would be arrested; she would go to the prison, whether in Alabama, Mississippi, wherever it was, interview him, get his side of the story. And she did this after this terrible massacre after Black men and their families in Arkansas, 1919. And the facts were so horrifying. Things like the State of Arkansas has set an execution date for six Black men, but no one had bothered to set a trial date, that they decided to take a long-shot to get to the at the Supreme Court, which to this point had barely lifted a finger to intervene in any sort of judicial travesty that had been quite widespread in the South. And they get the facts to the Supreme Court in 1923 in a case called Moore v. Dempsey. The Supreme Court makes its first humanitarian intervention into lynchdom in the South. And she helped bring that about.

 

She was also a suffragist, when suffrage being, I think, the most dramatic story of how ordinary Americans changed the Constitution. Seneca Falls, the first to call for the right to vote for women, was 1848. The 19th Amendment, granting the rights – 1920. 70 years. And what changed was activists, mostly women convincing their brothers and husbands and uncles that this was justice. And in that case with suffrage, it actually came down to in one interesting incident, one person.

 

In 1920 the suffrage fight, you had to get to 36 states. 35 had ratified, it was up to Tennessee. And the legislature was deadlocked for days, and then one 24-year-old from east rural Tennessee in the legislature puts his vote and votes for suffrage, and 20 million American women get the right to vote. And he later revealed that he got a note -- he did so because he got a note from his mother who said, "Be a good boy and vote for suffrage." And he later reveals that he reflected on the fact that his mother was going to go to her grave never having voted for anyone in her life. Whereas her illiterate field hands on their farm could vote. And so he wanted to be on record for eternity as voting for it. This is an example of this one individual, his mother, at the right time in the right place changing the course of our constitutional history. This happens more than you think.

 

Let me just say, in conclusion, just a few things. The average lifespan of a national constitution since ours took effect, and there've been hundreds and hundreds of them, turns out to have been 19 years. That's how long they typically last. We're at about 230 years. We have gone through strains like civil war, world war, depression, assassinations, invasions – these strains that usually destroy constitutions, and have historically destroyed constitutions. They cannot stand it, the pressure that these sort of events put on constitutions. So you'd think we'd have confidence in our Constitution, and we do, especially if you're a member of The Federalist Society.

But we also have a measure of what I would call constitutional hypochondria. This is a part of this constitutional culture that I'm talking about. This, too, is something we've had since the beginning. There's a letter from Alexander Hamilton to Gouverneur Morris in 1802, 2 years before Hamilton died. And he wonders -- this is in a private letter. He tells Morris, he wonders why he wasted so much of his life trying to prop up what he said was our "frail and worthless" Constitution. We have a letter from John Marshall, writing in private to Joseph Story. So this is just his heartfelt conviction. He said that -- he confesses to Joseph Story -- and by the way, Marshall by this point has been the Chief Justice of the United States for 30 years and done everything he can to strengthen the Federal Constitution. And he tells Story that he has yielded reluctantly "to the conviction that our Constitution cannot last." And, yet, here we are.

 

So my proposition is that if we keep the faith, if we keep vigilant, out of the sense that most of us have that our Constitution gives us priceless blessings in terms of strength and wealth and security. As long as we keep that up, there's no reason we can't go for another 230 years.

 

And I'll stop there, and thanks, again, everyone.

 

Wesley Hodges:  Thank you, Joseph. Ilya, would you mind commenting for a couple minutes?

 

Ilya Shapiro:  Yeah, this one was a hard one to comment on and review. I have a forthcoming review of it coming out in the Claremont Review of Books. Doubly so, since Joe has an affiliation with Claremont and with the CRB. Since it's a series of vignettes, or the story of the Constitution told through 10, or really 11, individuals, which is an interesting approach. I've never seen that before. That's, I think, one of the hallmarks or good things about this book because this is not a story of the framing or how the Founders' political theories have survived the test of time or not, or a chronological exegesis of Supreme Court cases, or even the people surrounding the Supreme Court cases, or a critique of American constitutionalism from a particular ideological perspective. Those have all been done before. But if your goal was to produce an accessible book that addressed our constitutional order, the main ideas therein as they develop through our history, picking a group of people and writing a narrative through their lives is a fascinating approach. So kudos to Joe on doing it that way.

 

And particularly the way he sets it up -- his introduction is about founding myths. And he notes that America's beginning is less interesting than, say, Romulus and Remus or a covenant at Sinai, and other national myths that countries have. The United States, after all, began, as he puts it, "a bunch of legal documents—not very inspiring." And, yet, it has withstood the test of time, and we have this civic nationalism here that I think is different than other places. And that's what makes the country exceptional, that America is based on an idea rather than a race, or ethnic group, or geographical abstraction fashioned by historical accident or imperial gains or what have you.

 

But, anyway, what about the execution of that interesting approach? I found the selection of people unusual, and that's probably what Joe was going for. That it wasn't just kind of -- if someone was asked, or if even constitutional scholars were asked, who were the top 10 people throughout history that you would use to illustrate the Constitution, you wouldn’t get -- you would get some of these people, but you certainly won't get probably even most of them. Why Hamilton and not Madison, the Father of the Constitution, for example? Or Jefferson, who played such a pivotal role in theory and practice, author of the Declaration? Or why not all three together, if we're grouping together people to represent certain eras? What about Abraham Lincoln? Didn't he foundationally change and preserve the Constitution in certain ways? Why de Tocqueville, who's obviously central and plays an important part in terms of sociology and telling the story of American civil society and the little platoons and all of that. That's very much part of our discourse. But he's not thought of as someone who talks about American constitutionalism or the rule of law.

 

Or, for that matter, if you're talking about legal historians, we have, in addition to Tocqueville, another foreigner, a Scotch-Irish political figure, rather than American legal historian of the time or later writing about the time. And why Ida Wells, who's a great libertarian here, although I was happy to see her for the part of the libertarian wing of the liberty movement, if you will. But why her and not, say, Susan B. Anthony, if you're really talking about suffrage as what you really want to portray through that life.

 

Now, these are really polar games. I'm criticizing for making those choices. There are good reasons, and the narrative flows, and all the rest of it. And part of that is exposing, as Joe said, to lesser known figures because that makes the reader think more, pay attention to what did these people add that disrupt what my conventional thinking about our constitutional narrative would be.

 

I want to touch on a few of these folks as well. Maybe between Joe and myself we'll have covered most of the personages in the book. Hamilton -- I don't know if you were picking this -- what relationship the success of the musical, Hamilton, had to do with picking him rather than Madison, or Jefferson, or any other of the Founders, but I couldn't help but think of some of the lyrics from Lin Manuel Miranda as I was reading about Hamilton being the surrogate son of the childless father of our country. Washington was childless, and Hamilton kind of had a need for a father figure, and it was a fascinating symbiotic relationship. Hamilton was, I think, more practical than a lot of the Founders. He instinctively knew that all of Madison's theoretical genius wouldn't be worth the paper it's written on if the government that Madison created weren't properly stood up.

 

And so, so much of his time was spent with energy in the Executive, as we might call it now. [He] became treasury secretary at 34, which is remarkable when you think about it. I think there was a Twitter meme going around about by age 35, you should accomplish the following things. Well, he was the treasury secretary at 34. And he turned down -- I wasn't fully aware of this: he turned down chances to be governor, senator, and even Chief Justice to focus on, quote, the "practical business of government."

 

Now, Hamilton is modern libertarians' least favorite Founder. I wouldn't put myself in that boat. I actually have a portrait of Hamilton, along with Jay and Madison in my office here at CATO. But, anyway, I think to think of him as some sort of big government guy is a little anachronistic because it conflates a belief in the national institutions that the Constitution actually does create with our current post-New Deal views and battles regarding federal power.

 

There's just really interesting examples of tidbits and trivia about important people in our history. James Wilson is probably the Founder with the worst ratio of impact to modern recognition. He's right up there with Hamilton, and Madison, and Jefferson, and Washington. He's one of only six men to have signed both the Constitution and the Declaration and had just a dazzling command of political theory and institutional design. So it was not Madison doing all of that stuff. He also, and this is a neat point for our modern debate, he coined the term "politically correct." So, anyway, I think he is important, and I do commend Joe for picking him to perhaps elevate his profile.

 

Let's see . . . Stephen Field is definitely one of my favorite jurists. He had the blind spot about race, certainly, but the Slaughterhouse dissent, and then general emphasis on property rights. Interesting character and important character.

 

Woodrow Wilson. Joe says that that's a controversial pick, but he never claims to say that he agrees with all of these people. These are his favorite people that have contributed to American constitutional. I think it would be hard to deny that Wilson was a significant factor in the development of our constitutional understanding. I mean, he is essentially the anti-Constitutionalist, even before FDR's court packing or the New Deal court, "the switch and time that saved nine." Forget about that. This isn't about reading clauses flexibly, or what have you, or ignoring them. This is about how the Constitution is antiquated. I mean, talk about your living constitutionalism. He talks about "government is not a machine, but a living thing. It falls not under the theory of the universe, but the theory of organic life." This is over 100 years ago on the stump. At his famous speech at Cooper Union in 1904: "The Constitution was not made to fit us like a straightjacket. There were blank pages in it, into which could be written passages that would suit the exigencies of the day." So it's no surprise that Claremont uses Wilson centrally and as a theme in terms of ushering in the administrative state, and really bringing in German conceptions of governance, which Wilson learned during his graduate studies, into American constitutionalism. So you can't get the New Deal transformations or the Revolution of 1937 as constitutional lawyers call it, without understanding its precursors in Wilsonianism.

 

Robert Jackson I find endlessly fascinating. Jackson came up a lot of in discussions of Neil Gorsuch's nomination. That's the seat that Gorsuch currently occupies and Scalia before him, obviously. I don't know if great theoreticians, or people who have impact on American constitutionalism are concomitant with that particular Supreme Court seat. But Jackson is the only person ever to be Solicitor General, Attorney General, and Supreme Court Justice. And he was also the last justice not to receive the law degree. So any law students out there, it's not too late. The rest of us who already have that parchment . . .

 

But fascinating guy and known for one majority opinion, one dissent, and one concurrence. His majority opinion in Barnette—West Virginia [State Board of Education] v. Barnette about the Jehovah's Witness flag salute case, that you can't compel speech, which came up a lot during argument in Masterpiece Cakeshop, the ruling which came down this year. The Steel Seizures Case – very important, his concurrence in that. [It was] Truman's attempt to nationalize the steel industry. But Jackson's concurrence has become the legal standard. Nobody knows who wrote the majority or what exactly the majority said, but we do know about the tripartite division of what happened that the President gets more powers when he's acting with congressional acquiescence. He's at his nadir of his power when Congress disapproves, and then sometimes in the twilight zone when Congress is silent. And then, finally, Jackson's dissent in Korematsu, regarding the war-time internment of Japanese Americans.

 

And Jackson, I think, represents the modern Supreme Court, which is playing an outside role since the Second World War that really never did before then. Marbury v. Madison and Dred Scott and McCulloch apart. It was in the basement of the Senate, for gosh sakes. But with Jackson represents the modern jurist as a staunch defender of civil liberties and checker of executive excess but also deferential to Congress and state legislatures, which has gotten more controversial in recent times.

 

So at the end of the day, I have some quibbles with this book, but it does a masterful job of marching through the main currents of constitutional thought, making them come alive. I tried to read this as kind of an educated lay reader, not just a constitutional -- one who focuses on constitutional law all the time. And I was just delighted with the little details that illustrate the broader philosophical points. Oh, I forgot to mention. Did you know that FDR built what's now Reagan National Airport with without congressional appropriation? I knew about certain things with the New Deal, like the huge programs and how he told the chairman of the Ways and Means Committee, "Don't worry about constitutional qualms. Just pass it anyway." I didn't know that an example of this is Reagan Airport. So that's kind of cute.

 

What the book does best is, I think, what it set out to do, and that's to make the dry text—you know, those founding legal documents in lieu of a national myth, make them come alive. And that’s important because, as Joe writes, quote "constitutionalism is not a mere institutional form but a culture, a set of loyalties, sentiments, habits, assumptions, usages, and self-disciplines, a permeating spirit that animates an otherwise lifeless paper scheme."

 

Wesley Hodges:  Thank you very much for that --

 

Joseph Tartakovsky:  Well, thank you, Ilya.

 

Wesley Hodges:  -- excellent, Ilya. Excellent commentary. Joseph, do you have anything in response?

 

Joseph Tartakovsky:  Yeah, let me say a word about the biographical method that Ilya raised. By the way, you can thank FDR, I guess, if you fly into Reagan. I mean, he thought it was ridiculous that you had to stop traffic for planes to land at the time, and we were heading into World War II.

 

I chose this biographical method because it's the best way, I find, to approach this. It's the way at least, I find, most accessible in grasping history. You pick a few people that stand for larger trends or tendencies, and then you follow them on their adventures through life and see how they grapple with the issues in their day, see what common ground we have with them. Find out how they did it, what constitutional lessons they offered. I think you can't understand these people's constitutional thought unless you know something about their biography. Hamilton, for instance, you cannot understand his constitutional thinking unless you know of his war service, which is where I find so much of it originated. He's the great champion of strong, central government, a strong president, because he saw what war looked like when Congress was directing troop movements. You couldn't get a quorum together to make critical war decisions. I mean, he thought the lack of an executive under the Continental government was getting Americans killed.

 

And it's also useful, looking at the world in which these people moved because it helps you your place in history. Jefferson was convinced Hamilton was a great state builder, that the government that Hamilton created was full of bloat and unconstitutionally oversized. This is a time when the sum total of federal government employees was about 3,000 people, the size of Cleveland's city government today. At present, we have nearly 3 million. And so it just reminds you, whereas the challenge of the conservatives in the 1790s was to build up and strengthen the federal government, today it may be to trim it down. But you have to know where you are in history.

 

I should also add that I picked these people -- these are the focal points, but I do have a lot of big players. I don't want you to think that for 20 bucks you just get 10 people, because I do have -- Lincoln's in a number of chapters. He makes appearances. Susan B. Anthony pops up in the Wells-Barnett chapter. But I did try, as Ilya said, to avoid where I could the more well-traveled grounds. I think there's as many books written about Lincoln now -- I think he's second, maybe, to Jesus in the Library of Congress. So I just wanted to tell the unknown stories where I could. Although, I'll have you know, for instance, the passage comparing Hamilton to Jefferson -- they come up.

 

I had the foreigners because, well, foreigners can see us in a way that only foreigners can. Tocqueville, actually, is -- we all Tocqueville. You've cited him. You know his quotes. And this was a guy who was here for 271 days and spoke halting English and didn't actually care all that much about our Constitution as a text. And yet, how many tens of thousands of court cases have been decided by citation to Tocqueville? The Obergefell decision, just for one example, rests principally on this idea that marriage is this fundamental thing in American life. And the passage that begins that discussion by Justice Kennedy says, how do we know this? Because here's what de Tocqueville said about it in the 1830s.

 

Why don't I stop there, and then we can do questions, if that's all right, Wes.

 

Wesley Hodges:  Absolutely. Thank you, Joseph. So, everyone, in a moment you'll hear a prompt indicating that the floor mode has been turned on. After that, to request the floor with your question, just go ahead and enter the star key and then the pound key on your telephone.

 

When we get to your request you'll hear a prompt, and then you may ask your question. We'll answer all questions in the order in which they are received. Again, if you'd like to ask a question, just go ahead and enter the star key and then the pound key on your telephone.

 

While we wait for any questions in the queue to build, Ilya, do you have any questions for Joseph to begin?

 

Ilya Shapiro:  Well, he answered some of what I raised in my comments.

 

Joseph Tartakovsky:  Ilya, do you think I made the case that Woodrow Wilson gets blamed for too much? I tried to deal with Woodrow Wilson the way -- like the Soviets dealt with political criminals in rehabilitation, you know, not as guilty as charged?

 

Ilya Shapiro:  I don't think Wilson gets blamed enough. I mean, those of us who've had Claremont programing are much exposed to him and other folks as well. But if you're the educated lay reader, even the educated lay conservative or libertarian, you still think about FDR or the Great Society era, whether politically -- or the Supreme Court and the Warren Court and whatnot. Wilson is thought of, "Oh, well, World War I," "his weird League of Nations thing," "wasn't he a racist?" You really have to get to the next level to know about his basis in the administrative state and all that. So even though he looms very large, maybe for even most of the people on this call, I think in the general discourse, he's not a big enough antihero.

 

Wesley Hodges:  Thank you, Ilya.

 

Joseph Tartakovsky:  Do have anyone on the line, Wes, or should I --

 

Wesley Hodges:  We do. We do. We have one question on the line. I'd like to invite anyone else to contribute to questions, enter the star key and then the pound key. But let's go ahead and go to our first caller of the day.

 

Michael Maibach:  Hello, my name is Michael Maibach, and thank you for doing this book tour. I came in after you talked about James Wilson, so I apologize. I’m with the James Wilson Institute. And I just wondered if you had commented on his influence of the idea of natural rights in the writing of the Constitution?

 

Joseph Tartakovsky:  Thanks, Michael. Yeah, great. James Wilson Institute. I've become an evangelist for James Wilson. I'm trying to do my part to restore his reputation. I talked about his contribution --

 

Ilya Shapiro:  I have his bobble head for whatever that's worth.

 

Joseph Tartakovsky:  That's great. That's great. I didn't talk about it specifically in connection with natural rights and natural law, but that's -- I do discuss it in the book. I mean, that is the philosophical -- if the Founding Father's had a party line it was the doctrine of natural law. I mean, this idea that there are certain truths about human nature that are true across time and place just like physical laws, like gravity. And why I love James Wilson and his lectures on law is he traces how the doctrine of natural law is reflected in all of our institutional arrangements. So unlike the Federalist Papers where they talk about specifics like advice and consent, James Wilson talks about how we had created, in this country, the first-ever government based on the doctrine of natural law. He was insistent that it was not -- as much as we owed to England, that it was not true because you had three branches there. One of them was hereditary, the second one was appointed by the king, and the third was -- the Parliament was half hereditary. And the House of Commons was maybe 10 percent of it, 15 percent of it was democratically elected. He was very proud of this fact that we were the first government based on the truth that all men are created equal. And he shows that in his lectures on law.

 

Michael Maibach:  Thank you.

 

Wesley Hodges:  Thank you, Michael. Thank you, Joseph. The queue is currently open, so if anyone has a question, just go ahead and enter the star key and then the pound key. In the meantime --

 

Joseph Tartakovsky:  Wes?

 

Wesley Hodges:  Yeah, go for it. What was that?

     

Joseph Tartakovsky:  I was going to say you can interrupt me if a call comes in, but I could also just say a little bit more about Woodrow Wilson.

 

Wesley Hodges:  Oh, please. Please do.

 

Joseph Tartakovsky:  All right. What I find about Woodrow Wilson is that he'll be blamed for, say, talking about Darwin or organic institutions. I find that that was sort of how people talked in that day. Darwin was becoming popularized. So what I did, for instance, was I looked at who are the most conservative constitutionalists, legal constitutionalists, of that age. It's guys like George Sutherland, later one of the four horseman trying to resist FDR, or Elihu Root, who was the ultimate conservative, institutional lawyer. They all talked like this. They talked about organic institutions. And so it wasn't just Wilson.

 

The administrative state in Woodrow Wilson -- I mean, the interesting thing I find is that Woodrow Wilson's chief legislative accomplishment in his first term was the Clayton Antitrust Act, the Federal Trade Commission Act, and the Federal Reserve Act. And these things are entirely uncontroversial, and these, so far as I can tell, constitute the sum total of Woodrow Wilson's contribution to the administrative state. I was the Deputy Solicitor General in Nevada, and we had all sorts of federal laws that caused devastation to the state economy—the Clean Air Act, Clean Water Act, Environmental Protection Act, National Environmental Policy Act. And almost all of these -- Occupational Safety and Health Act—three quarters of these were passed in the '70s under Nixon and Ford, by Republican presidents. These are the things -- it's always curious to me that we're blaming a guy who has been out of office for a hundred years.

 

So as I say, I have all the bad stuff about Wilson, too, by the way—signing eugenics laws. He was a racist, which is the chief reason his stock has fallen. But I think he shows that there's not points in time where everything goes awry. Like this is the moment where we departed from the Founders and built the administrative state. But, actually, these things are the result of very slow accretion, step by step, often democratically done, and we have the power today to change it, if we think the administrative state is too powerful. There's not one agency in this country, one federal agency, that Congress couldn't abolish tomorrow. So that's just a thought.

 

Wesley Hodges:  Thank you, Joseph. It looks like we do have another question in the queue now. If anyone would like to join, just enter the star key and then the pound key. Let's go ahead and move to our second question.

 

Bob Davis (sp):  Hello. This is Bob Davis in Maine. You had mentioned earlier that Judge Marshall had concluded that the Constitution could not last. And yet, it has. I'm wondering if you think it has lasted only because it is not the Constitution that was originally the intent of the Framers, i.e. the virtual -- just ignoring the Ninth and Tenth Amendments, the destruction of federalism, the welfare state, the enormous power of the federal government, now, for its intrusiveness and control. So is it the document or is it more as Michael Levin suggested, we're in a post-constitutional age?

 

Joseph Tartakovsky:  Well, I think that, as you say, the story of our government in this country is the story of the growing power and dominance of the federal government. That has just been the consistent trend. It's interesting to understand why. In some respects, it seems to me inevitable in the sense that, for instance, to take the Commerce Clause, which has served as the engine for all this, give the federal government the power to regulate interstate commerce. The Commerce Clause means something different in an age when everyone lives self-sufficiently in a village, and you rarely travel outside of it. It's an age where everything's interconnected.

 

You're right about what you say in that we often lose sight of how far we've come. It was very controversial when Teddy Roosevelt signed the Food and Drug Act. The federal government was going to get into the business of regulating false cures and dangerous foods? I mean, this is protection of health and safety. This is just for states to do. It's a classic state function. But then you have President Trump the other day saying that he's going to solve the opioid crisis. He's praised on all sides and Newt Gingrich says, "Right on, President Trump." And we've forgotten how far we came. That the federal government is going to be -- it's the same idea, though, that the federal government's going to protect us from dangerous substances.

 

Calvin Coolidge thought it was unconstitutional for him to visit the site of the Mississippi floods of 1927—[It was] the worst flooding in American history—because this would create a precedent for a president to oversee disaster relief. But after the hurricanes in Texas, I was going to an event where Mike Pence was supposed to speak, and he canceled to go to Texas, not only -- his argument, of course, being something like, "It's a constitutional duty for the president and vice president to oversee these things." --

 

[Crosstalk]

 

Joseph Tartakovsky:  Yeah, go ahead.

 

Ilya Shapiro:  Whereas Grover Cleveland vetoed the provision of drought relief to Texas farmers saying that there's nowhere in the Constitution for him to do it.

 

Joseph Tartakovsky:  Yeah, he said -- these farmers were dying, and Grover Cleveland says that the people support the government, not the government supports the people. And so that was the view of the day.

 

Now, these things change, and I find that they sort of change -- they have popular support. So I tend to think that it is not a good thing to talk about that we live in a post-constitutional age because it undermines our faith in the Constitution, which I think it's dangerous to do that. This was one of Hamilton's missions – to build up confidence. He was convinced that government doesn't work without popular confidence. And I say that only because if the majority of Americans [are] convinced that we have far overleaped the bounds of the constitutional government, the remedy is at hand. You have to convince other Americans that it's time to scale back. And the person that gives us advice on this is James Madison.

 

So James Madison was convinced that the Bank of the United States, which was the most controversial constitutional question for the first 40 years under the Constitution, he was convinced that was unconstitutional. And he had good reasons for it because it seems like there was thought to propose the power in the Constitution to create a bank, and they thought it wouldn't get the votes, so they didn't propose it. And they thought they'd fight it out later. Now, James Madison wrote a letter later on in life, a series of letters. People said, "Well, what gives? You were against the bank and now you're for it?" And he said, "Look. I thought it was not in the Constitution. But presidents have created banks, and they've signed it. Successive congresses have created banks and reaffirmed the banks. The majority of state officials have acceded to this. The people seem to support the idea of a bank, so I guess I was just wrong."

 

And he said that that's just what's going to happen in this country through our history. We're going to have these constitutional struggles, and they're going to be settled by practice and, ultimately, by the people. I don't know if that seems sort of heretical or inconsistent with the idea of a written Constitution, although I think it is because I don't think the Constitution actually settled as much as we think it did. But that's actually, I think—at least as I try to show it—the truth of how we've developed as a country.

 

Bob Davis:  Thank you.

 

Wesley Hodges:  Thank you, caller, for your question. Ilya, it's just about 2:45. Do you have any closing remarks before you have to leave us today?

 

Ilya Shapiro:  Buy the book. I don’t get any royalties from or any kickbacks from Joe. Although, if you want to, I'm happy to take them. No, I think it's accessible. I think it's readable. I hope both constitutional junkies, and people interested in history, and people interested in public affairs generally read it and get it because there's a lot of stuff that I learned in here, and a lot of interesting color. There's really something for everyone, and it's not every day that you get told an interesting narrative about dry, legal documents.

 

Joseph Tartakovsky:  Thanks so much, Ilya. Appreciate it.

 

Ilya Shapiro:  My pleasure. Take care, everyone.

 

Wesley Hodges:  Thank you, Ilya. We still have 15 minutes left of the call, so if anyone has any questions for our speaker, for Joseph, now, just go ahead and enter the star key and the pound key. I do want to draw everyone's attention that our next scheduled teleforum call, assuming we don't have a Supreme Court case decided before then, is for June 14th at 10:30 am, and it's Executive Overreach at the EPA? The Pebble Mine Clean Water Act Dispute, a conversation on that.

 

It looks like we do have another question in the queue. Let's go ahead and move to our next caller.

 

Gerald Gruber (sp):  Hello. I'm Gerald Gruber from Fulton, Maryland. And I just finished reading a book, Ratification, Pauline Maier's book about the Constitution, what the debates were in the states about ratifying the Constitution. And I bought the book, and I read it particularly for one question that I had in mind, and I never found it even discussed in her book in 600-and-some pages. The issue in my own mind is Article I Section 8. And it gives the federal government the power to pay the debts and provide for the common defense. And I think the phrase is "general welfare." If it’s not exactly that phrase, it's something that's very similar to it.

 

And I had the impression that phrase meant that it had to be for everybody's good. It didn't mean that it was generally going to do some good for some people. And I'm reminded of that when you were just talking about James Madison and the National Bank. And President Jackson, of course, entered the office violently against the National Bank, and lo and behold, the government passed the National Bank Act and he vetoed it. And he vetoed it specifically because it didn't meet the constitutional requirement of the "general welfare." He said, "This is for the welfare of the shareholders of the bank and not for the people." And national banks, in fact, have been wealth gathering instruments for the wealthiest people in the country.

 

My reading, doing Google searches, of president's vetoes -- up until the Civil War, there were about eight vetoes by presidents of congressional acts—tolls roads, city of Savannah burned to the ground, Congress wanted to appropriate money to build a toll road to help rebuild Savannah, etc. etc. And all of these vetoes were between, I don't know, the first one 180-something or another, up to the Civil War. And not a single one of those vetoes was overridden by the Congress. And my question is had the Congress overridden one of those vetoes, hypothetically, would it have gone to the Supreme Court? And how might they have evaluated the pros and cons of that?

 

Joseph Tartakovsky:  Well, Gerald, thank you for that question, and a very thoughtful one. It's a really interesting question. Jackson vetoed the National Bank. I always read the veto message, which is a very famous document in American history, as not so much saying that it was unconstitutional—although, he'd say that in part. But, yeah, he said it was a policy reason, which you gave, which was that it didn't serve, or harmed most people. That the bank was an institution that was corrupt. It served the rich and powerful in Boston and Philadelphia and New York. And two really interesting constitutional doctrines rose out of that famous clash.

 

So Daniel Webster's in my book. So Webster was part of the -- he was one of the leaders of the first generation after the Founders. He was the chief opponent of Jackson in the Congress. Webster was outraged by the veto message, and the he said, "You know, the Supreme Court has said that this is constitutional in McCulloch v. Maryland. You can't second guess the Supreme Court. The Supreme Court says what is constitutional and what is not." Jackson argued that he has the power to, as he famously said, interpret the Constitution as "he understands it and not as it is understood by others." And he would later ignore Supreme Court decisions, like in Worcester v. Georgia, the Supreme Court said there were two -- he would, especially with the Indians, he refused to enforce.

 

Now, Jackson won in part and Webster won in part. Jackson won the fight on the point that a president can veto a law for any reason, including his belief that it's unconstitutional, including, even if the Supreme Court has said otherwise. He can say, "I don't care what the Supreme Court said. I think differently, and I'm vetoing it." But Webster won on the doctrine that the Supreme Court has the final say on the Constitution. This was very controversial in the 1830s and 1840s, and before the Civil War. It was very controversial that the Supreme Court would be the supreme arbiter of this. But we've come to accept it. So if the Supreme Court says it's not constitutional you can't sign it into law, for instance. And the banks fight, in particular Webster's role in it, which I discuss in the book, helped establish the doctrine that the federal Supreme Court is supreme on matters of exposition of the meaning of the Constitution. So thanks for bringing up that particular fight because it's a great one.

 

Gerald Gruber:  Thank you.

 

Wesley Hodges:  Thank you, caller. The queue, again, is now open, so if anyone has any more questions before we finish today, just go ahead and enter the star key and then the pound key. I do want to let everyone know that this call is being recorded and will be turned into a podcast and uploaded to our website, iTunes, and Google Play. So we invite you to look for it later, as well as check out the roster of previously existing podcasts. Looks like we do have another question, so let's go ahead and move to that caller.

 

Charlie Carter:  Hi, my name's Charlie Carter from North Carolina. It's actually really more of an amendment of something that one of the speakers mentioned earlier to provide some additional information. But, first of all, it relates to the Environmental Protection Agency. I’m delighted to hear the program you mentioned next week. I think that's a very important one. But I wanted to make a couple of particular points. The speaker was not entirely wrong about the creation of the environmental programs that we're now all subject to, but gave, perhaps not, too much credit or blame, however you want to assign it, to Presidents Nixon and Ford. In fact, the Environmental Protection Agency as an entity was not created by statute but by executive reorganization order by President Nixon.

 

However, if you go back and read the documents about the creation of that agency, it was not to try to assume greater authority in the federal government but to try to bring together the disparate pieces of environmental programs that were already existing in the federal government, put them in one place, and put them under a single individual, so that, in fact, the President and the Executive Branch could get better control. Now, obviously, that hasn’t entirely worked, I will grant, given what we've seen from EPA in recent years. And, in fact, while the Clean Air Act was passed under Nixon, the Federal Water Pollution Control Act Amendments of 1972, which imposed among other things, the 404 Wetlands Program that we're now fighting a great deal, was actually passed over Nixon's veto in 1972. So he actually pushed back on that but was unsuccessful.

 

So I just thought I would add those additional points. I don't really have a question other than, I guess, any further thoughts you might have on the aggregation of power that EPA has taken in the last few years?

 

Joseph Tartakovsky:  Yes, thank you, Charlie. Thanks for the point. And, yeah, it's something we struggled with in Nevada—the Endangered Species Act, the Environmental Protection Act. These are extremely powerful laws. I think you make a good point, which is one I think I try to bring out in the book, which is that the federal government's power is -- it has grown to a slow accretion. I mean, we were talking about our friend Woodrow Wilson. He created the FTC, the Federal Trade Commission, which was popular. It was demanded by the American business community because they were the ones that brought, by far, the most antitrust complaints. But it was very modern. It had sort of -- you could make recommendations, issue injunctions in certain cases, but it was just sort of toothless. And then these things go over time. They have the same functions with bolstered powers. I mean, people -- I remember learning -- I've been a lawyer, too, and I remember going to an interview with a member of the FDA. The FDA has special agents, and these special agents carry guns. A few people may be surprised at it. It's just something that has happened over time. And as you say, there're often those big fights. But there's an interesting rationing effect that once you create these things, you can limited jurisdiction, but it certainly grows overtime in ways that its creators didn't expect. So you've got to be careful about creating these things.

 

Charlie Carter:  I would absolutely agree. And, by the way, your point about carrying guns, there's actually a criminal group, division within the Environmental Protection Agency which does, in fact, carry guns and search people's premises and so on. To say the least, I think, that's gotten way, way beyond anything anybody ever contemplated.

 

Joseph Tartakovsky:  Yeah. Well, thank you, Charlie.

 

Wesley Hodges:  Thank you very much, caller. The queue is now empty, and we only have just a couple more minutes left on the call. Joseph, I wanted to turn back to you. Is there anything that you would like, to, I guess, elaborate more on before we end today? Or any closing thoughts you want to have for our audience?

 

Joseph Tartakovsky:  Yeah, let me say one thing about the Founders in our world today. What I try to bring out in the book is that we're endlessly indebted to them. There's a generation of genius that we'll never see again. And they settled a lot for us. But we tend to think that the task is to ventriloquize them, and that's often very hard to do. We talked about the Bank. Jefferson has a story that the big state nationalists got together and said, "Let's try to raise the power of a bank." And they knew they didn't have the votes. And so they said, "We're just going to have to fight this out over time."

 

There's a story: Rufus King, who was one of the important Founders from New York, he, at one point asked -- he says, "I would like everyone to tell me what we mean in the Constitution"—this is near the very end—"what do we mean by direct taxation?" which is actually a very important clause in the Constitution. And Madison records, "No one answered him." These were things that they just didn't resolve. They resolved a great deal but not everything. And so long as we try to be men and women of their kind, to think about the Constitution with their intensity, with their intelligence, with their patriotism, and with their learning -- and I know of no legal organization in the world that does this better than The Federalist Society, which is why I'm so grateful to The Federalist Society for hosting this, and why everyone should be involved in The Federalist Society -- we'll be okay.

 

And so, on that note, I thank everyone for joining the call. I hope you'll take a look at the book. It's in stores [and] online now. And, Wes, thank you so much for moderating.

 

Wesley Hodges:  Of course, Joseph. And we're very grateful for your time today. And just the biggest way we can say thank you is just please consider buying the book. You can find it on The Federalist Society's website, but also links to Amazon. Again, the name of the book is The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law. You will not regret it.

 

So thank you all very much. We want to thank Joseph, and Ilya before, for the benefit of their valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us. The call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.