Constitutional Fragility with Sandy Levinson

This is chatter. I'm Kevin Frazier. This week, Professor Sandy Levinson, on amending, revising and improving the US Constitution. I would say that I've shifted from having kind of academic criticisms in the Constitution. It's undemocratic. To believe very, very deeply that the Constitution has become in its own way of metast, there are aspects of the Constitution that threaten our survival. What makes lawyering very strange as a profession is that you are not obliged to believe your own arguments and in fact you are obliged to make arguments that you don't believe so long as they're not fivalous. I think politics really is a lot like sausage. The outputs are more important than the inputs and if you find the output acceptable, then you're gonna go on into your life. Politics is not the central concern for most people. Well, Sandy Levinson, thank you so much for joining chatter. As a young scholar, it's one of those moments where they say don't meet your heroes and frankly I think they're wrong because it is quite great to chat with you. I haven't quite made it through all 450 of your articles. Maybe I will one day, but in terms of your scholarly productivity and your scholarly insights, it really is a hoot to get to chat with you. So thanks for joining us. You should know though that I have a habit of publishing the same ideas at least three or four times. So hey, divide problem for. I think it's brilliant. And I have to admit, so we are recording on September 25th. Yesterday in the New York Times, there was a op-ed by Michelle Goldberg highlighting prominent constitutional scholar calls out the constitution and I turned to that page thinking great, I'm so glad that somebody's highlighting Sandy Levinson's work. Instead, it was about another prominent scholar, Irwin Chemrinsky, the dean of my alma mater. But I did feel a little bit robbed on your behalf. You don't have to comment on whether Michelle should have referred to you. But the reason I expected to see your name is because you've been calling out the constitution, implying some quality constitutional criticism since way before it was cool. And so one thing I'd love to just start with was what initially turned you on to this approach of critiquing meaningfully and substantively the constitution where we grow up in a culture of veneration for the constitution, veneration for the founding fathers. Was there a moment in your education or in your personal life that just made you think, hey, you know, maybe the constitution's not all it's chalked up to me? I think an honest answer would be originally and I think I first floated the idea might not be interesting to have a new constitutional convention back around 1980 in a piece in the nation. But quite candidly, I think that probably reflected a kind of academic contrarianism or G wouldn't be it wouldn't be interesting if. But it did not represent what I would call a deep alienation from the constitution. The first book I wrote was in 1988, book called Constitutional Faith. And the last chapter of that book talked about my visit to the bicentennial exhibit in Philadelphia in 1987. And it happened to be the case that the exhibit was designed by one of my closest friends. It concluded with the invitation for visitors to sign the constitution themselves. And I thought about it because I certainly did not think the constitution was close to perfect. Things like the electoral college and the Senate had occurred to me long before the last several years. And I listened to some people as they were deciding whether or not to sign. And then I decided to sign. This is 1987. Frankly, because Frederick Douglass ended up rather impossibly, I think, but he ended up in the late 1850s, 1960s, you know, giving a pay on to the constitution. And back then, most of the discussions of the constitution, including probably my own, focused much more on rights than on structures. You know, I wasn't ignorant about structures. I just mentioned the electoral college and the Senate. But like most people, if you ask them, well, what do you think about anything about the constitution? The first thing a modern person is likely to say, is it protects my rights next Y and Z? So in the next literal 20 years, 1980 to 2003, I became more interested in the structural provisions and more perturbed by what I saw as the costs of the structural provisions of the constitution. So the next book that I wrote about the constitution are in democratic constitution, which was published in 2006, written in 2005. The first chapter of that book talks about a visit that my wife and I paid to the National Constitution Center in Philadelphia. And I was on a, you know, scholars advisory board or whatever they called it. It includes by steering the visitors to what they call, I think founders hall or framers hall. And there are life-size statues of each of the 55 people who were there at one point or another. That's interesting in itself. You realize how tall George Washington was, how short James Madison was and stuff like that. And again, you're invited to sign the constitution. And in 2003, when I was up there for the opening of the center, I didn't. And the reason I didn't is not because I had become disaffected from the rights provisions, but because I really was more and more perturbed about the structural provisions. But in 2003, which astonishingly is 21 years ago now, I think it's fair to say that I had academic questions. You know, I was teaching that there were problems we ought to confront. But the problems had to do, I mean, the second book, our in democratic constitution, focused on all of the ways that the constitution is on democratic. But the response to that book led me to believe that most people didn't care. That whether it's democratic or not is an academic question. And I think politics really is a lot like sausage. That the outputs are more important than the inputs. And if you find the output acceptable, then you're going to go on with your life. And it was my central academic concern. But still, you know, a lot of people say, sure it's anti-democratic. But what's your point? You know, things are going along reasonably well. And I just literally finished writing another essay and found myself referring to the Halcyon days of the Bush administration. Ted Kennedy and George W. Bush cooperated in passing some important domestic legislation. 77 Democrats voted to authorize the Iraq war. And there was never any doubt that if George Bush had been beaten in 2004, he would have left the presidency gracefully. We don't live in that world anymore. And so in the last 20 years, rather than the last 40 years, I would say that I've shifted from having kind of academic criticisms of the Constitution. It's undemocratic. This is that and the other. To believing very, very deeply that the Constitution has become in its own way a mess, and that there are aspects of the Constitution that along with a whole bunch of other things, threaten our survival. I will say with regard to Michelle Goldberg's column, I would be dishonest if I didn't admit to having some of the same reflections that you described, but it's also true that, and I can call her Michelle, 'cause I know her slightly, her very first column in the Times, which I think is now about eight or nine years ago, actually mentioned me and gave some very appreciated and appreciated publicity to my ideas. And in some ways, you know, from a very personal perspective, of course I would have loved to have gotten a shout out, but I was really quite exhilarated by the column. That is the column a couple of days ago, because I have felt in what I've written over the last decade or so, a great deal of frustration in getting from zero to one, where zero is no attention by any recognized political leader or any of the higher pundit class. Now, in fact, Michelle did, you know, mentioned me seven, eight years ago, however, whenever she started the Times, but, you know, she's gone on to a lot of other things. And the major pundits, some of whom I know, and respect a great deal, just don't wanna talk about Constitutional Reform. So, if Michelle's column, and, you know, I would say she's a major pundit, if her column forces other people to read Irwin's book, and to start saying, "Well, you know, he's on to something, including the genuine desire of a lot of Americans to think about succession." Session, I think, is impractical for a whole bunch of reasons, but there have been a bunch of books published in the last four or five years across the political spectrum about succession. So, I'll be very, very interested to see if Michelle and Jamil Bowie, also at the Times, she's the other pundit who actually talks on occasion about Constitutional Reform, but as you may know, if you're familiar with any of my recent stuff, there's the Steve Wavitsky and Dan Ziblatt book from several years ago, "How Democracies Die." And I reviewed the book generally quite favorably, but said it doesn't really wrestle with Constitutional Design, particularly in the United States. It's much more about political culture. That was also true of the book by Tom Mann and Norm Ornstein back in 2012, for God's sake. It's even worse than it looks, which painted a very, very doer picture of where we were, but maybe it's because they're inside the beltway. Ornstein is that American enterprise institute, man, is at Brookings Institution. I don't think you're either as retired. And it was really a very critical book, but the idea of Constitutional Reform didn't occur to them. And that is what is so frustrating. In fact, I was at a conference in Madison, Wisconsin last weekend, and I titled my presentation, which will be published in the Wisconsin Law Review, "Confessions of a Contankerous Crake." And it's, you know, I'm fairly serious with the title, maybe because of my age, I have become more of a crank about the need to think about Constitutional Reform because nobody in the leadership political class is really willing to address it. And we can literally count on half the fingers of one hand the number of pundits who have written anything at all about it. So that's a long answer. - It's a fantastic answer. And it's given us plenty of things to pull on. But I think the through line of many of your marks and your stories is this notion of a personal relationship with the Constitution that every American has in some way, shape, or form. Some engagement with either the text itself, it's an embodiment, it's an actment, it's enforcement, as well as just the idea of the Constitution. And I think your insights back from 1988 in your first book, "Constitutional Faith" really bring that to the fore, viewing the Constitution as a sort of religious document from the perspective of many Americans. And obviously that was at the height of a lot of religious, further a lot of religious conversations back in the late 1980s. And I wonder how you've seen the personal relationship of Americans' Constitution change over time. With maybe a specific focus on whether we've become for lack of a better phrase, sort of Jack Catholics. We don't really attend, we don't pay due deference to the Constitution, but we just have this lofty notion of its good and let's lean on it and move forward without tithing, without showing up to Mass on Sunday. What does that relationship to the Constitution look like now? - It's an excellent question. The honest answer is that I'm not enough of an empirical political scientist to offer any confident answer to how do people in Mass think about the Constitution. I can report though, you know, this is sheer anecdotal evidence. But I'm giving a course this semester at the Harvard Law School on Constitutional Reform. It's so-called reading course. There are I think 14 students in it. Yesterday's assignment was a book that my wife and I wrote together called "Fault Lines in the Constitution." And it's kind of interesting or odd that I assigned it because if you actually look at the book, you realize it was written for teenagers. And in fact, it's been much more successful than anything else I've ever written because a number of high school teachers are using it. In fact, some junior college teachers are using it. And I have unassumably, unabashedly assigned it to the Harvard and Yale Law Schools because what's unique about the book other than that thanks to my wife who really is a prize winning children's author. Not only is it very accessible, but also it's one of the very, very few books about the Constitution that focuses by and large and structural issues. And one of the chapters toward the end of the book grades the Constitution. My wife had been a teacher for many years. So the question is, what do we want out of a Constitution? Look at the preamble. If the preamble sets out the goals, you know, you have a math course. By the end of the year, you ought to know your multiplication tables or your this, that, or the other. So we can grade you at the end of the year by giving you a test. So we have this chapter in which we grade the Constitution and we don't give it a very high grade. So I asked the students yesterday to write up their own grade for the Constitution. And I will have to say thanks to the students, not to me, I think it was probably the best single class I can ever recall having because the students really did engage with one another. And there was a particularly interesting engagement about the Constitution and a more perfect union. One of the students gave it a D plus. Bye. saying, "Look, how can you ignore the fact that we killed 700,000 people between 186018 and 6080's, you fell off, overslavery, and because of the Constitution. That in itself is enough, if not to flunk the Constitution, then certainly to give it nothing higher than a deep plus." At least two other students said, "Well, you know, we are such a, you know, pick your favorite word. We're such a diverse society, a pluralistic society, a divided society, or a polarized society, that we have nothing in common other than reliance on kind of the myth and symbol of the Constitution." And that's really what's important about the Constitution. It's not that people necessarily know everything that's in it. Nobody knows. Even people who teach this for a living would not necessarily score 100 on a well-conceived, malicious test dealing with each and every provision of the Constitution, letters of Mark and Reprisal, etc. But a couple of the students said, "In essence, that's not really important. What's important is that it's a symbol of what unites us as Americans, and the Constitution really has done that." I don't know what the data would show. All I can report with confidence really is my own, increasingly, dejected feeling. I think Erwin Schermerinsky's book is very, very important culturally because Erwin, whom I know reasonably well, is a very thoughtful liberal. But in terms of his politics, one would describe him as a thoughtful moderate. He's not a bomb-thrower. A number of his previous books have been built around faith in the good old Constitution. Criticism of the Supreme Court for not enforcing the Constitution the way it ought to be enforced. If you really focus on rights debates, you can criticize Supreme Court's decisions on abortion, on guns, and the like. But then your answer is a point of view Supreme Court judges with better views, and the sun will come out tomorrow. Whereas this new book, or the latest book, just published last year by Lewinsky and Ziblatt called "Tierney the Minority," is much, much more worried about our political future, and no longer puts any great faith in the Supreme Court as a potential savior if only we had better judges. If you are concerned about climate change, if you are concerned about the housing shortage, if you are concerned about immigration as a problem, if you're concerned about the national debt, wherever you are on the ideological spectrum, A, the odds are overwhelming that you don't have any great confidence in Congress as being able to confront what you consider the most important problems. It's just beside the point to go to court that the court has done a great deal of mischief with regard to the possibility of certain climate possibilities with the so-called major questions doctrine, which I can go into if you want to, but it's an esoteric law professor's point. But if they were completely welcoming to any and all legislation, capaciously interpreted, you'd still have to get the legislation. The Supreme Court can't write a thousand-page climate bill. The Supreme Court can't write an acceptable health policy or housing policy, etc. And law professors in particular have a vested interest in overestimating the importance of the Supreme Court. And doesn't have to trivialize the Supreme Court in order to say that it's just false to say that the Supreme Court is the most important decision maker in society, that in terms of what most people care about across the ideological spectrum, the Supreme Court is, if not irrelevant, then just not that important. Abortion is probably the most important counter example. Where the court turns out to be very, very important, but quite frankly, again, if you're just doing a kind of empirical analysis, abortion is the number one issue for relatively few of the 340 million people who live in the United States or 160 or 180 million voters, every people turn out in November, people who care about abortion care about it extraordinarily deeply. And that has to be taken into account in terms of any analysis of current politics in the Supreme Court. But if you care about climate change, the Supreme Court is going to be way down your list. And with regard to most of the issues we're talking about, what the Supreme Court does is just not that important. So one thing that I'd love to dive further into is your mention of some of the incentives facing members of the legal community and in particular, members of the legal academy. If you're a law professor, writing on the palace intrigue in coming out of the Supreme Court or the latest series of cases, that's something that you know law reviews will be interested in. That popular media will be interested in likewise from a professional point of view when you teach constitutional law, there are very few incentives to do the sort of deep structural dive you're discussing here. Not only is that sort of deep structural dive not on the bar exam, but as you pointed out previously, most students don't go on to practice any form of constitutional law. And so I'm keen to know a little bit more about your sense of obligation on lawyers, on the legal community to be stewards of the constitution, both not only revering it when necessary, but reforming it when necessary, because I think that this notion of a greater responsibility on lawyers and the legal community to actively have this conversation has kind of been absent if not completely missing. Well, that's a very, very important question. And it's something that I've done quite a bit of thinking about. And in fact, joining with this group of students at William and Mary Law School for a symposium, I'll take place in February, on constitutional law case books, somewhat esoteric topic, but actually it touches very, very much on what you're talking about. What is it that law students should be learning? And then I would add one question to the one you asked, why is it that most, though not all law schools require courses in constitutional law? And they don't require courses in say evidence, or corporations, or family law. Family law is likely to be more important to more people over the course of their lives than constitutional law. Marriage divorce, wills, aging parents, et cetera, et cetera. We don't require that. So why require constitutional law? One answer is it's on the bar. But so is evidence, so is corporations, and we don't require them. So the next answer might be, well, lawyers are so likely to practice constitutional law, much more than family law, but that simply falls empirically. That especially the sort of constitutional law that most of us think of most quickly, in a kind of free association test, okay, what are constitutional law cases, affirmative action, guns, abortion, free speech. Very, very few lawyers are going to have any of those cases in their entire career. If you want to talk about the part of constitutional law that might arise in practice, well, if you do, if you're a criminal lawyer, you're going to have to know a lot of constitutional criminal procedure, which ironically or not, we don't require students to take, and it's not part of the canon of an introduction to constitutional law. Or if you're working for corporations, you might find yourself mitigating in a somewhat esoteric, but not an important area called the dormant commerce cause, that is to what extent can states regulate matters that affect interstate commerce. Again, as it happens, if you look at case books, if you look at syllabi, you find that fewer and fewer people spend any time in this. We want to spend time on abortion, guns, affirmative action, etc. And further, we don't spend any time on what is not mitigated because constitutional courses focus almost exclusively on the work product of the US Supreme Court. So not surprisingly, there are no cases testing whether it is legitimate that Wyoming and California each gets to senators. If you were to mitigate it, you'd be thrown out a court because the judge would say, what part of two do you not understand? The Constitution very specifically says, in state gets to senators. James Madison called this an evil. He then went on to say it was a necessary evil or a lesser evil because it was one of those compromises necessary to get the Constitution, which is correct. But this is also true of slavery. And nobody says, well, because it was a necessary compromise in 1787, there before we should honor it. No, we killed 700,000 people in order to get rid of it. So why do we teach constitutional law? What ought to be an art syllabi? I would say that the point of a constitutional law course should be citizenship training, a very high level form of civic education. But as I'm sure you're aware, you know that civic education has fallen on hard times for kids. I mean, I mentioned this book of my wife and I had written. And it is an intervention in civic education because it is written for teenagers. We are exhilarated when we discover that high school teacher has assigned it. And my wife in particular has paid visits, both in person and on Zoom, to some high school classes all over the country. And, but, you know, there's been quite a bit of literature on how budgets are being cut on social studies. STEM is taking over the world and STEM doesn't have much use for old-fashioned social studies. And so there's that problem, but, and it is a huge but. Law schools have always had an uneasy relationship to what I often call the real university. At least in aspiration is devoted to the world of ideas. You go where the ideas take you sometimes very uncomfortably, but your job is not to prepare people for a job. Now, obviously, anybody who has any relationship with a modern university knows that this kind of ethereal platonic notion of the university is in trouble because students are extremely aware of job markets. And their parents are even more aware. So if the child comes back and says, "I've decided to major in writing poetry," that is not likely to generate warm and fuzzy feelings in many many. Every parents worst nightmare. Exactly. You're studying what? Right. But, you know, if you're a president of the university, you would say, "Poetry is really important." And there's a reason we have several professors on poetry, or we have, you know, an ancient history department that keeps play to an Aristotle and Homer, etc. alive, unto the next generation. Law schools are vocational schools. Our job is to prepare people to be lawyers. And there is a real tension. And when I say it's a real tension, I mean that it can't be dismissed. That I'm very academic. I have a PhD as well as a law degree. And in my sunset years, I increasingly define myself as a political scientist. And when I refer to the real university, you know, offhandedly, it also does reflect how deeply, deeply important my graduate training, which happened to be at Harvard in the 1960s, just shaped my life in all sorts of ways in terms of thinking and following ideas. And, but law school, my job, I am paid very, very well by the state of Texas. And it's a notorious truth that legal academics are paid far more than professors of poetry. And this can be explained through a market that, you know, law professors could make money practicing law, whereas professors of poetry are unlikely to be able to make money by writing poetry. And so, you know, all this is reflected law schools are organized to train lawyers. So in a class unconstitutional law, or preparing a case book unconstitutional law, which I'm part of, there's this real tension between what one might want to do. If one were teaching a subject called American Constitutional Development, to a group of undergraduates or graduate students, as the GENST teaching that course to a group of law students who really want to learn how to be lawyers. And for lawyers, it is important to know what courts do. Now, you know, ironically, students might find very interesting some of the exposés about what goes into deciding actual cases. There's a remarkable story in the times last week about John Roberts and the various Trump cases this past term. And I could certainly see bringing them up, but I would bring them up probably in order to generate a discussion about idealized models of judicial decision making as the GENST what journalists or academics are suggesting might be the actual dynamics of decision-making and a multi-member court. But that's still very different from teaching the kind of legal history that I'm increasingly much more interested in than the current Supreme Court or teaching comparative constitutional design where I think one of the ways that American law schools are just terrible in teaching a rounded understanding of the US Constitution is that we rarely compare the US Constitution to other constitutions and by other constitutions I am referring not only to the French or Spanish or South African Constitution but to the Minnesota or Texas or California constitutions there are 51 constitutions in the United States. The higher you go up in the law school pecking order the less likely you are to really realize that fact because we spend all of our time almost literally this is not hyperbolic we spend almost all of our time on one of those constitutions and never ever talk about the fact that Florida like most states elects its Attorney General separately from the governor and so you often hear people say well American constitutionalism is just committed to the so-called unitary executive the presidents in charge of everything even if one believes that's a correct reading of the United States Constitution it is the monstrantly false to say that the unitary executive is the American way because at least 45 the 50 states have rejected it and students ought to be aware of that and they ought to talk about that that again I will refer to the book that my wife and I wrote it is very comparative but the primary comparisons are to our to states although we do have national comparisons as well my aspiration is to get students high school students arguing with one another as vigorously as you know should hate speech be protected should the United States nationally adopt the same kind of veto system that most states have where governors can engage in the line-eyed veto or is it wise to give the president the the extent of the power to pardon whomever he or she wishes to a lot of governors don't have that same would we at the national level be better off we like Wisconsin or California enable to have recall elections for governors it failed in Wisconsin it succeeded in California what do we think of the fact that most judges in the United States are elected they're not appointed these are eminently worth arguing about but they just never come up in most courses on constitutional law because we fixate on one of them and then assume that that's just the American way of organizing the state and the state is the monster we false as someone who's clerked on a state Supreme Court I clerked for Chief Justice Mike McGrath on the Montana Supreme Court which as I'm sure you know is among the youngest state constitution 1972 yeah 1972 when 100 Montana's average Joe's and Jane's getting together to create a new constitution your the relationship you see among Montana's for example with this state constitution that's been freed from some of the constitutional debt of a constitution formed in the 1800s or even earlier you just see this change in dynamic and appreciation between the average Montana and the constitution itself and the fact that most law schools don't make space for even the reading of their state constitution is just such a failure because it also prevents us from realizing that in some cases yes states have gone too far in trying to just amend the heck out of those constitutions such that their amalgamations of chaotic provisions but we do need to have that sort of conversation about how do we see alternative mechanisms to making sure our core Republican principles this is lower case our Republican principles are updated for modern times and we can see that and study that at the state level I mean it's a great great example Montana actually is not the newest constitution I think that Rhode Island is the newest constitution but Montana illustrates several things first of all like most states in the country it has not only amended its constitution but replaced it and there have been 235 state constitutional conventions or at least 235 over our history I keep referring to the book that my wife and I wrote the next last chapter of that book is a debate between the two of us because I very much want a new national constitutional convention and Cynthia comes up with some very good reasons why that's not a good idea but Montana had one and it worked Montana is also one of my favorite state constitutions along with 12 others because I think that every X number of years whether it's 10 years 15 years 20 years I don't remember the citizens of Montana must vote on whether or not to have a new constitutional invention and usually states with these revisions vote against it to my regret but New Hampshire has had 17 state constitutional conventions this provision goes back to their Constitution of 1784 I very very much wish that that were in the national constitution I think we'd have a different relationship to the Constitution it's also true is you know far better than I that the 72 Constitution contains protections for the environment now we can have a separate discussion on another occasion of how truly operationally important such provisions are in constitutions are they really litigated do courts really feel comfortable intervening in a legislative process but still it says something significant that the people of Montana wanted some kind of environmental protection in their Constitution Massachusetts has an environmental provision in its constitution that got through an amendment the Ecuadorian Constitution which would just rather new is world famous because it includes some rather extravagant protections for the environment which may or may not turn out to the operationally important but you know say that's another matter but this is why it really is a scandal that law students especially as you go up in the pecking order are not aware of their state Constitution I mean let me be very blunt I would assume that law school state law schools relatively low in the pecking order would pay attention to their state constitutions because a lot of their students are going to turn out to be city attorneys or involved in zoning litigation or taking litigation you know and all areas of law where state constitutional restrictions guarantees protections whatever could turn out to be relevant but as you go higher in the pecking order student have less and less of an aspiration to become a city attorney for a city of 40,000 people and they get socialized into a kind of national perspective which means let's talk only about the US Constitution and just forget that Montana or Texas has a Constitution. So I mean this is one of my hobby horses but again the real problem is that if you're teaching an introductory course called American Constitutional Law you have let us say 40 classes, 45 classes and you have to decide what goes into that very scarce amount of time and the fact that students really come in knowing very very little so you have to spend quality time making them aware of you know X or Y and that means that you're going to cut out Z that it would be if only we had more time but we don't so you have to make hard choices and comparative constitutionalism is usually left in the cutting room for. And this is one of the reasons why I'm so fascinated by something going on in your neck of the woods at least your partial neck the woods there in Austin the University of Austin in that just got started up there where they're attempting to reshape or rethink about in undergraduate education and I wonder what that would look like at the law school level if members of the legal community had an honest conversation and said if we were to restart today build from zero how would we structure and create this course to create the sort of vested legal community we need to defend and protect an advance the Constitution. Well it's a very interesting question the University of Austin is a conservative reaction to what they perceive of as a liberal university milieu and I agree with you that it will be very very interesting to see how they design courses in history or literature or whatever in order to convey what they think is the better perspective but I would be very very surprised if they got into the law school business in part because law schools to some significant extent are under the thumb of the American Bar Association and accreditation requirements and the belief which is not an unreasonable belief that law schools ought to prepare students to be practicing lawyers so again wherever you are on the ideological spectrum we doesn't matter there is this tension between a professional focus and the more detached analytic or academic focus so you know I have friends or libertarian or who are staunch limited government pro federalism buffs but they themselves are responsible teachers and they can lament to their students that the Constitution either in 1787 was really not written to be a libertarian document or that the Supreme Court in a variety of decisions has you know repudiated our libertarian heritage or as repudiated our limited government heritage but then they would go on and say look you should know as a practicing lawyer that Congress could do all sorts of things that nobody would imagine Congress doing in 1787 and if you're conservative you can you know stamp your foot pound the table and say this is really terrible but you should know if on the final exam you say that regulation of minimum wage by Congress is unconstitutional you really have to say the court should say it's unconstitutional but it hasn't in fact it said just the opposite so if you are a city attorney you are or whatever you are very ill advised to file suit against the federal minimum wage law because not only will you lose but you might find yourself sanctioned for making a frivolous argument or having to pay even under certain circumstances having to pay the attorneys fees for the other side and you know just as somebody with my own views that are highly antagonistic to the current majority of the Supreme Court you know I could say though I don't in fact spend that much time saying it I really wish they hadn't come out the way they did but you should know that if you're interested in affirmative action for example the court has really rained in the ability of institutions to take race into account now they've not said anything about military schools and the like but it's very very clear that the kinds of affirmative action programs that were used you know three years ago would now be found illegal by many many courts and if you're a university attorney you have to take that into account and you know I'm not an originalist but I teach students how to make originalist arguments and I would hope that you know even if you're a very strict originalist you would also teach your students to make that trial arguments that that fly in the face of originalism because that's your duty to your client unless you tell your client look I'm gonna be such a purist that I'm not gonna make any arguments that I don't believe myself are the best reading of the Constitution no lawyer can do that I always point out and this goes back to you know platonic dialogues what makes lawyering very strange as a profession is that you are not obliged to believe your own arguments and in fact you are obliged to make arguments that you don't believe so long as they're not frivolous and then one of my other hobby horses is that we can't come close to describe to teaching our students what a frivolous argument is in contrast to an imposable but still possible argument now you know you might say judging is different that you do have an obligation as a judge to believe your own arguments but we're not training people to be judges we're training people to be lawyers and I also taught professional responsibility for a number of years by choice I would say and I think schools by and large don't take professional responsibility seriously enough but the potential responsibility lawyers it's just very different from the professional responsibility of judges and we spend way too much of our time asking our students to put themselves in the minds of judges rather than okay how can you make effective use of these arguments whether you believe them or not in order to help a client at some future moment who you know wants to do this that or the other Well, we're coming up on the end of our time together, unfortunately. So I do have a few just rapid questions. You've identified a number of reforms that are maybe at the top of your list from the electoral college to impeaching the president to changing the Senate, for example. Is there one, if you had to just identify one of the most important constitutional reforms? What would be at the top of your list? Um, radically changing Article 5, the amendment cause, because I think it is an empirically defensible observation that the United States National Constitution is the most difficult to amend Constitution in the world and is considerably more difficult to amend than the U.S. State Constitution. And I think it has had the consequence not only of locking us into an iron cage going back to 1787, but also stifling any discussion of constitutional reform because it just seems so quixotic. It infantilizes us. I mean, if you say, look, I have these ideas for constitutional reform, you almost immediately identify yourself as a crank because there's no realistic possibility of constitutional reform at the national level. Whereas in Montana, there was, you could vote to have a new constitutional convention or if you're in California in a number of other states, you can have, you have an issue of referendum. So one of my favorite states is Nebraska, which because of its size, it's not because I'm against bicameralism per se, but I don't think relatively small states or countries need a second house. And Nebraska got rid of the state senate in 1934 by initiative and referendum. I very much wish we had an issue of an referendum at the national level, we don't. And again, I would love to hear students, including seventh graders, not only law students, going back to eighth grade, really debating with one another, would we be better off at the national level? If by signing petitions, you could force certain issues onto the national agenda to be decided in a nationwide vote. It's a big question, a very interesting question. I've actually explored the idea of, and members of Congress have explored this as well. The idea of even just hosting non-binding informal national referendum of informing Congress, there's nothing stopping Congress from saying, hey, you're the people, what do you think about this issue? Well, speaking of issues that maybe folks should have more top of mind, I'm also keen as is our tradition here on chatter. One of the chatterbox questions I'd love to ask you here would be, what books are on your nightstand right now? What are you reading? Okay, the two books that I'm literally reading right now are a book, and I just got a couple days ago, I forget the title when I couldn't tell you the name of the author, but it is a book on a Christian set and its view of Donald Trump because one of my major interests right now, and if I write another book, this will be the topic of the book, is providentialism. The belief that God intervenes in history. My own view is that there is an unbridgeable chasm between secularists like myself and people who believe in divine providence, which is different in certain ways simply from believing in God. You could believe in a creator watchmaker, watchmaker God who creates the world and then leaves us to fend for ourselves. But I'm interested in the view that God really is interested and if we don't behave correctly, we will experience divine wrath. And so it did not surprise me that within five seconds almost literally of the shot taken at Donald Trump, there were people saying that God had deflected the bullet. So that's one of the books I'm reading about because I think that providentialism is not only interesting in an academic sense, but it continues to be an extraordinarily important part of American culture that we ignore at our peril. This is linked to the other book that I'm reading right now. This is book written sometime in the 1860s called Roman Jerusalem, a foundational text in the theory of Zionism and a central question in the debate of Zionism, whether we're talking about academic debates or the kinds of protests we've seen especially in the last year or so, is if you support the idea of Israel as a Jewish state, which is debatable in itself, but put that to one side, there is a huge, unbridgeable difference between saying, well, Jews are entitled to a state of our own. In the same way that Swedes are or Albanians or fill in the blank, you know, if you're an American Federalist, you would say what you like about Federalism is that Montana's can realize their Montana's in an independent and it's relatively independent autonomous state. Fine. The other argument is that Israel is a sacred state because it is carrying out the promise of, I think it's Genesis, either chapter 13 or chapter 15, when God promises Israel to Abraham. Now, you know, as a secular Jew, I don't put any stock in God's promise to Abraham. It's a historical piece of historical war, but it's no different from historical war of the Hopes, the Navajo's, or any other group. And we might find it interesting given our particular politics. We might say we ought to honor the culture of the Hopes or the Navajo, whether or not we agree with it. But what most of us wouldn't say is, oh yes, these tales accurately depict some spirit who came out of a volcano or who rose from the ground or who did this that or the other in order to do something or other. And so the Moses Hess book is the other. I also have Erwin's book quite literally out of my nightstand, but I confess they haven't read it yet, though I will. [MUSIC]