up next on american history tv, remarks from jeffrey rosen on james madison and democratic ideals. he currently serves as president and ceo of the national constitution center in philadelphia. held by the james madison memorial fellowship foundation, this is an hour and 45 minutes. >> we welcome you to the james madison lecture which our foundation sponsors every year. seated in our seats today are 49 fellows who are here at georgetown university studying the foundations of american constitutionalism. they are all high school teachers or middle school teachers of american history and american government or civics. then we have several of our alumni who have come. i would like not to introduce

our guest speaker. our guest speaker today is jeffrey rosen, the president and ceo of the national constitution center. he's also professor of law at the george washington university law school. he is contributing editor at the atlantic. professor rosen is a graduate of harvard college, oxford university and the yale law school. his book louis the brandeis, american profit, was published on -- in 2016 on the 100th anniversary of the brandeis court confirmation. his other books include, the supreme court, the personalities and rivalries that defined america. the best selling companion book to and award-winning pbs series, the most democratic branch, how the courts serve america. the naked crowd, freedom and security in an anxious age. and the unwanted gays, the

destruction of privacy in america, which the new york times has called the definitive text on the privacy perils in the digital age. professor rosen is also co-editor with benjamin which of the constitution three point oh, freedom and technological change, the proceedings from the brooks project. technology and the constitution. his essays and commentaries have appeared in the atlantic, new york times magazine, on national public radio and the new republic where he is the first editor, and the new yorker where he has been a staff writer. the chicago tribune has named him one of the ten best magazine journalists in america. the los angeles times has called him the nation's most widely read and influential legal commentator. let's please welcome professor jeffrey rosen. thank you. >> we thank you so much.

ladies and insulin, fellow teachers, it is such an honor to address you today. teaching civics is the most urgently important task in american democracy. james madison said, a popular government without popular information or the means of acquiring it is a prelude to tragedy or farce. and your efforts to educate young americans about the essence of american government, and its fundamental principles, will determine the future of the republic. polls show that young people are more likely to support authoritarian alternatives to democracy than the older generation. and yet, those educated in civics and in the fundamental principles of constitutionalism are more likely to support

institutions like an independent judiciary to resist overturning judicial decisions by popular vote and to support the essence of constitutionalism. that is why your task is so urgently important and i am grateful for it and honor you for it. my test today is also important. you have asked me to address a fundamental question. what would james madison think of american democracy today? and how can we resurrect madisonian principles of reason rather than passion at a time when they seem under siege? i want to begin with a quotation from federalist 55 which sums up the essence of our common task this morning. madison said, in all large assemblies of any number composed, passion never fails

to rest the scepter from reason. even if every fenian had been socrates, athens would still have been a mob. i see some heads nodding appreciatively. that is because you know well how centrally the founders were concerned about the dangers of mobs animated by passion rather than reason. they had in mind the cautionary tale of chaise rebellion and the deters who rose up and demanded paper money because they refused to pay their creditors. this fear that mobs miss led by silver tongue demagogues could end up threatening fundamental principles of property and liberty was a central concern of the constitution makers. and therefore, they established the entire system to ensure the

triumph of slow reason overtime. i have been so influenced by gregory wiener's wonderful book, madison's metro gnome. wiener shows in this book, that the founders first of all resisted direct democracy in favor of a representative republic. they feared that the direct expression a popular will could lead to demagogues and mobs. the 18th century equivalent of today's twitter polls and brexit votes. and therefore, they wanted thoughtful representatives of the people to channel and filter popular passions so that reason could prevail. second, they were keen on the benefits of an extended republic. we know from classical theory

that the classical sources believe that democracy was impossible in large republics because face to face deliberation would create assemblies that were too large and would degenerate into chaos. but the framers, first of all by devising the representative system, believed they made it possible for larger territories to will themselves. and second and most importantly, madison believed the large size of the american republic meant that factions could not easily organize. remember the definition of faction in federalist ten. any group, whether a majority or a minority, animated by passion rather than reason, and by self interest rather than the public good. so the idea was that in a larger public, it would be hard for these self interested groups to organize, to discover each other, to achieve their nefarious common purposes.

and by the time they actually found each other, passion would dissipate. throughout the federalist papers, we see this notion of hasty and impetuous passion that, overtime, can cool. the large size of the republic was supposed to guarantee that cool reason into the pot passion would prevail. it is centrally important that the framers were not aristocratic. they were not in favor of oligarchies. they accepted, especially john adams did, the classic arrest to tell ian tragedy of monte skew that there were three forms of a republic. aristocracy, a monarchy and a democracy, all of which could degenerate into an oligarchy, tyranny or demagogues and a mob. so they are not in favor of any one of those systems. they believe in majority rule, but they want majorities to rule slowly overtime and the

whole system is created to slow down deliberation. that's the big idea. friends, as we step back and reflect as we must do this morning and reflect on modern america, we see how many of the cooling mechanisms that the framers put into place have been undermined by changes in institutional structure in politics, and most importantly in technology. i want to review with you those changes and then think about ways we might resurrect the framers cooling mechanisms in an age of 24/7 news and social media and the very kind of hasty and impetuous decision-making that the framers feared. let's first think together about the cooling mechanisms themselves and then examine the ways that they have been undermined. and because this mike is going in and out, i will stand here for a bit and see if this one works better.

that one is wired, okay. i will go in and out, but my passion will be cold by the fading mike and eventually you will just get bursts of it as it fades over time. so what are the cooling mechanisms that the framers put in place? they are centrally concerned with the design of congress. madison think -- thinks congress is going to be an impetuous vortex that constantly demands more power for itself. they believe the legislative tierney is the main source of terrain any -- attorney. the most important principle, and we have to teach our students and americans this, is that the separation of power and checks and balances. it is crucially important that no one branch gets to speak before we, the people. here, let's just channel not just madison, but james wilson. that underappreciated genius from pennsylvania who wrote the

first draft of the constitution. i want you to come and bring your students to philadelphia, it is exciting to see the very first words that wasn't put on paper in july of 1787. the first words were resolved that the government of the united states shout consists of a legislative, executive and judicial branch. no we the people, but it was the separation of powers and the idea that no one branch can speak for the people, but our power has to be dissipated among them to prevent tyranny and to slow down deliberation. that is the central idea. that is structural principle that we have to teach our students. the second wilson draft, which was produced a little bit later in july, contains the words we the people of the states of new hampshire, rhode island and providence plantation, massachusetts and so forth. it was wilson who came up with the idea that we the people are

sovereign, not the king and parliament as in britain, or the king himself, and not the individual states. so that central notion of popular sovereignty was wilson's unique contribution. that signaled the next draft of the preamble, which appeared later in august, which says we the people of the united states. why was the change made? some say it was just governor morris and the committee of style trying to ensure the fact that, since they did not know who would ratify the final draft, that it would avoid that question. but others insist that the choice was deliberate and we the people of the united states was meant to signal the indivisible sovereignty of the people as a whole. that's the first central idea. that we the people govern, and by considered, thoughtful,

deliberate, lasting majority will, we can rule. and yet, our representatives are not allowed to speak in our name. no one bill passed by congress or the state legislatures. or no one executive order issued by the president can be confused with the will of the people. that will is embodied in the constitution itself. that's why judicial review is justified. federalist 78 beautifully encapsulates the whole theory of judicial review. hamilton says that when there is a conflict between the will of the people represented by the constitution and the will of our representatives embodied in ordinary laws, the judges should prefer a master to the servant, the principle to the ancient. that is the whole rebuke to the idea that there is a counter majority aryan difficulty involved in striking down anti constitutional laws, because it's the constitution and not any of the three branches that in bodies the will of the people. then we dig into each of the

branches and see how careful the framers dispersed and divided powers and blended functions in order to slow down deliberation and ensure the slow triumph of reason. in congress, there is the obvious separation between the senate and the house. washington's famous metaphor about the senatorial saucer cooling the passions of the house. just do a word search through the federalist papers and it is striking how many times the idea of reason and passion occurs, and how centrally all of the structures were set up to ensure the triumph of reason. then, there was a lot of concern about the size of the house. another amazing document that we have at the national constitution center in philadelphia, if you've not gotten the message yet dear c-span france, come to philadelphia to see these great documents. there were 12 existing copies of the bill of rights.

one of them is that the national constitutional center in philadelphia. the very first amendment proposed by congress is not the one involving freedom of speech. it says there shall be one representatives in congress for every 30,000 citizens. if that amendment had passed, there would be 6000 representatives in congress today, which is about the same size, interestingly enough, of the athenians assembly which the founders believed degenerated into demagogues. it's also the size of the chinese national congress today. the reason they were so concerned about the size of apportionment was because they wanted enough representatives to be responsive to their constituents, but not so many that the size of the assembly would become unwieldy and degenerate into demagogues. here, there cautionary tale is an athenians who was a silver

tongue demagogue seduced the assembly into invading spart*a and causing the polyphony xin war. subsequent scholarship has suggested that aristotle and plato and later anti democrats may have done him an injustice and that fenian democracy was more effective in producing economic stability and dispersing knowledge among people a different backgrounds. and that it may have fallen not because of the war, but because of the the played and the war itself was supported by the 500 member senate, and by perilous. and in short, it may not do it justice to reduce it to demagogues, but this was the framers vision, as it was the vision of florentine critics of democracy as well as those in britain and france were trying

to defend those governments against democratic excesses. so the original first amendment says one representative in congress for every 30,000 inhabitants. it fails, as does the second amendment, which says congress cannot raise its salary without an intervening election. that became the 27th amendment. our first amendment was the framers third. it came first not because it was considered most important, but it was just the first amendment that happened to pass. it does not mean the framers were not centrally concerned about rights to speech. they believe our rights of speech or natural rights that come from god in nature and not from government. in the state of nature, we are born with certain natural rights, pre eminently the rights of conscience. remember, the right of complete freedom of conscience is a preeminent natural right because the new hampshire constitution says and it's preamble that the opinions of men being the product of reason rather than force or violence

cannot be porous. once again, this enlightenment faith and reason because my religious beliefs, or lack thereof, and my opinions, must be the product reason. i cannot alienate them or surrender them to government when i move the state of nature to civil society. that's the why the race -- the rights of conscience are on a new -- in india level. the other unnamed inalienable rights is to abolish government. that's why the second sentence of the american declaration contains the theory of american government and we must teach this to our students as well. we hold these truths to be self evident, that all men are created equal. they are endowed by their creator with certain and amiable rights. among these are life, liberty and the pursuit of happiness. whenever government becomes destructive of these rights, it is the duty of the people to alter and abolish it. so the right of revolution is inalienable right, it's

necessary to preserve the greater security and safety of this inalienable rights that we have retained. that right is embodied in the amendment process of article five, which you can see from wilson's draft was not specified until the last days of the convention when they filled in the details about how many states were necessary for ratification. but of course, the right of revolution was central also to the convention because the constitution was illegal according to the pre-existing conditions of the articles of confederation. those articles required unanimity for amendment, the framers decided that nine out of 13 states was necessary. that broke the existing rules, but it was justified because the right of revolution or amendment isn't inalienable right and therefore a thoughtful and consider judgment of a majority of the people of the united states must always be allowed to be enacted into law. that is why some scholars,

again this is my dear law school teacher, have claimed that when majorities express our will in a thoughtful and deliberative way, which prevails overtime, then amendments outside of article five might be permissible and we the people might amend the constitution in ways that are technically illegal under the existing rules as happened during the convention and as happened during the civil war. the puzzle were amendments to the constitution were illegal and ratified in government, the rebel states readmitted into the union. and that too was justified under the unalienable rights of the people to alter and abolish government. all right, we talked a little bit about some of the cooling mechanisms, of congress, let's turn to the presidency. the obvious cooling mechanism that the framers put in place here was the electoral college,

which was supposed to be a group of wise men, who would look with cool, deliberate reason over the scope of available candidates, and choose those of the highest character and intellect, most governed by reason, rather than passion. we know that that idealistic view of the electoral college proved illusory as early as 1890. essentially, the electoral college never served that kind of aristocratic i mean intellectually aristocratic function. and with the rise of political parties in 1800, soon became a rubberstamp for the choice of the parties themselves, a transformation that was reflected in the 12th amendment to the constitution, which assumes the existence of political parties. another growth of political parties was one of the major explosions of passion that the framers cannot and did not

anticipate. hamilton and madison thought of parties as a form of faction. and they imagined instead that representatives of people, and representatives in the electoral college would deliberate free of partisan passion. as it happens, though the parties developed in a way that prove to be a substitute for some of the cooling mechanisms that hadn't materialized as planned. as the historian, shawn has showed, some of the greatest constitutional transformations of american history have come through mobilized political parties. that's because the party's soon form themselves on constitutional terms. the democratic and republican party formed by madison and jefferson was organized around the principle of popular sovereignty, and states rights. and individual liberty, and limitations of non federal power. the federalist party was originally the defender of the aristocratic privilege, and of national power to regulate the

economy. and therefore, the clash between hamilton on the one hand, and medicine and jefferson on the other hand, has defied the american constitutional history. in 1850, six when the republican platform was drawn by alfonso taft, father of william howard taft and others in philadelphia, it was based on the principle of a individual union, challenging -- and opposition to the nebraska act. so these great parties were for most of american history ways of aggregating people from different regions. eastern manufacturers, and western farmers, in the case of the republicans. and southerners, and small business people, agrarian interest in the case of democrats. rather than being mobilized around personalities or ideologies. and that's why the parties for much of their industry were

able to choose moderate candidates, who favored the constitutional platforms of the parties, rather than generating into the factions but the fact -- that the founders feared. we are talking about the presidency. that vision of a president chosen by a impartial party organized on constitutional principles. and above all, not directly responsive to the people was challenged in the election of 1912. so my new hero is william taft, i just wrote a short autobiography of him saying that he's the most traditional chief justice, he yearn to be chief, he took the presidency with greatest reluctance, and fought the election of 1912 on the principle of defending the constitution against a demagogue jury of wilson and

roosevelt. roosevelt insisted the president could do anything the constitution to explicitly forbid. tuft said that the constitution allowed the president do would ever the constitution explicitly allowed. -- informed by his judicial background. he served on the sixth circuit. and pine to be on the supreme court. a dream he eventually achieved. and became arguably one of our greatest chiefs since john marshall. after taft and roosevelt split, taft was moved to run for reelection with the greatest reluctance in order to defend the election from roosevelt's new populist -- she endorsed new progressives like the popular initiative, the referendum, and the judicial recall of all popular decisions. roosevelt attacked individually judges by name, and demanded that the people overturn their decisions.

in the constitution center in philadelphia, our majestic temple to the constitution overlooking independence hall, there's a quotation in the lobby saying the people themselves are the maker of the constitution. it's a inspiring quote unless you read the next sentence left off the wall which says and when they disagree with judicial decisions they should be able to overturn the by popular vote. it's a appalling expression of populist enthusiasm. i call to you, and to dear c-span viewers to send me alternatives to this excess of populism, so we could replace it with a quotation from madison or the other fighters expressing a devotion to reason rather than passion. so taft runs for president because he rejects wilson and roosevelt's notion of the president as a direct steward of the people. it's very important for us to teach our students. the favored conceive of the president as a direct expression of the people's passion to channel there will.

the national constitution center as you know is a non partisan center. in everywhere were inspired by our congressional charter to release awareness and understanding of the constitution on a nonpartisan basis. i can say with non partisan basis that the idea of tweeting presidents would have appalled the framers. it's exactly right. it says though in federalist ten. yes it is. i'm feeding a share. but stop tweeting. it's what the framers didn't want. federalists says -- >> i'll treat it to the president. >> you can tweet him, but he's nuts listless into. because madison is considering, should the people be able to issue direct caution to the representatives of their presidents and they say no, because you want to set up barriers. the reason why this is not

partisan, our first tweeting president was obama. he's the first present to set up a twitter account. the framers and medicine to think that kind of a direct expression of the people to the presidents and the representatives to the people is a good idea because they want slow reason to prevail. so when roosevelt and wilson are insisting that the president can channel popular -- he runs for president to defend the constitution. he loses one of the greatest feats and political history. but he goes on with great distinction to serve as chief justice. there is another important change in 1912. that transforms congress. i'm getting this from william congolese wonderful book on medicine. it was in 1912 that wilson insists that the congressional committee system which requires the parties to fully consider bills that goes in the regular order of the challenge and

wilson in addition to assisting that the president is a direct commune of the peoples will also says that the president in congress, like the kink in parliament, should be able to do whatever he likes. over the objections of the minority and without compromising with the minority. and he sees the president in congress as kind of a parliamentary figure. and his two books on congress and the constitution endorse the sort of parliamentary vision. george will, the great constitutionalist came to the constitution center recently and talked about madison. and said that all of american history can be seen as a conflict between two prince tony. and james madison and woodrow wilson. and views wilson's populist befall chances in the election of 1912 as the beginning of a path that brought us to the war of 1944, the of, illusion and his insistence that the party

that control congress should be able to reach its will without seeking putt from the minority. precisely the opposite of the slow deliberation and multi interest compromise that the framers thought was central. so we talked about the congress. we talked about the presidency. what we're trying to do here is still essential lessons that we have to teach all students, and fellow americans. and just review, congress is supposed to separate powers and have checks and balances in order to ensure slow reason. the president isn't supposed to communicate directly with the people. it's supposed to be chosen by a wise electoral college so that he or she can exercise independent judgment. now we come to the judiciary. the least dangerous branch. as hamilton called it, as alexander buckle called it, in his view the judiciary has been transformed beyond the framers

view. madison saw the bill of rights as a inspiration to the people that were promoting self restraint and reason. remember he initially oppose the bill of rights on two grounds. because it would be a necessary and dangerous. unnecessary because the constitution itself is a bill of rights. and by granting congress unlimited power, it would allow it to assume enough power to uproot speech. it had been granted that much power. and dangerous because medicine because our rights were natural, from god, and, nature not government. they were so capacious they couldn't be reduced to a single-limited list, and future citizens could assume that if it wasn't written down it wasn't protected. but in the face of opposition from federalist george nixon and randolph and gary of massachusetts, gary meandering, weather than gerrymandering, he changed his mind and then came

to endorse the bill of rights, when he wrote the bill of rights and make them out of thin air but copied and pasted them from the bill of rights from the revolution. here i have to plug. and i can't believe i have waited this long. the extraordinary interactive constitution of the international constitution that's currently online. i want all of you to bring it to your students. i want all americans to download and learn from. using this incredible tool, you can click on one of the amendments and see one of its antecedents in the revolutionary era so you can click on the second amendment for example, and see that two states, virginia and pennsylvania say that people have the right to bear arms for the purpose of defending themselves or killing game. or another states led by the george missions of 1776, the best place for them because medicine and jefferson had declaration letters on the side when they wrote the bill of rights and declaration talked about the right of the people to organize themselves and militias to defend liberty in the face of federal tyranny,

and disbanding armies. so it's a wonderful nonpartisan way of seeing the textural revolution of the rights, it's extraordinary thing that you can do on the interactive constitution is to have the top liberal and conservative scholars in america nominated by the federal society and the american constitution society exploring areas of agreement and disagreement. so once, again click on the second amendment and find nelson and -- the two leading liberal scholars with 1000 words. they agreed the second amendment means. what a remarkable thing to be able to bring to our students. it's a unanimous supreme court majority. every word in that is agreed to, and you can see separate statements and see areas of disagreement. to do this all the clause of the constitution is the most extraordinary, gratuitous, public schools use that anyone could possibly imagine.

this incredible free tool has gotten -- since it launched years ago, and i am thrilled that to last week in aspen, the head of -- announced that all ap students will be required to take a two week course of the constitution of the cold war of creating around creating the interactive constitution. we're hoping to bring the entire interactive constitution with the college board, not only into ap classes, but to all classes across america. i have given this plug. i hope you'll forgive me, because it's in the madisonian spirit of promoting cool slow reason overtime. we can't have informed opinions about the bill of rights are supreme court opinions without listening respectfully to the arguments on both sides, and recognizing that there are good arguments on all sides of move contested constitutional questions. the constitution and home -- fundamentally different points of view, therefore we need to teach ourselves and our students to read the majority,

read the dissent, consider it thoughtfully and slowly, with a open mind to separate our constitutional and political views, asking not with the government should do, but with the constitution allows the government to do. and then to be open to the possibility of changing our minds. that's the civic exercise. the constitutional exercise that we're trying to promote at the constitution center. and it's the absence of madisonian deliberation. this brings us back to the judiciary because this is wet madison hoped citizens would do. he said the reason to adopt a bill of rights is to convince citizens to think twice before violating rights. they will not infringe speech or vote to oppress minorities once they are reminded that freedom of speech and freedom of conscience our fundamental principles. it was only later, principally after the passage of the 14th amendment, that the judiciary rather than congress or public opinion became the main enforcer of rights. the courts struck down only to

federal laws, market versus madison, and dred scott. vigorously enforcing rights in the face of populist threats is essentially a 20th century construct that has to do with the incorporation of the bill of rights against the states. july 9th, monday, is the 150th anniversary of the 14th amendment to the constitution, one of the most significant constitutional anniversaries imaginable. how harkening it is that the original understanding of that unsung hero of the 14th amendment, john begum, the ohio congressman who drafted the 14th amendment. begum hoped the 14th amendment would incorporate the bill of rights against the states and require the states, as well as the federal government, to respect the fundamental privileges or immunities of united states citizenship, which included most of the guarantees of the bill of

rights. his hope was warranted by the supreme court in the infamous slaughterhouse cases soon after the 14th amendment was passed, and it took most of the 20th century, beginning in the 1920s when the first amendment was applied against the states, to the 1960s when most of the other parts of the bill of rights were apply to vindicate them. i would like to have a vigorous debate with you and our fellow citizens about whether the courts today are performing a function of cooling and checking that medicine -- madison did not anticipate, because he did not expect judicial enforcement of rights. but that may substitute for some of the atrophy of the other cooling mechanisms madison put in place. the idea of judicial engagement or having judges strike down federal and state laws may, or may not, the more justified now that the other branches, primarily congress, have

stopped playing its checking role, and other forces have sped up deliberation so that passionate hasty decisions need to be checked. that leads to the final branch that we have to talk about and that is the media. the fourth branch, or the shaper of public opinion. it is fascinating that madison in his notes to the national gazette in 1791 is centrally concerned about new media technologies, namely the broadside press, that he believes will slowly dissipate reason across the land. he is moved by the fact that the federalist papers themselves are distributed in the newspapers. again, we have the earliest copies of the federalist papers in the new york newspapers published soon after the numbers were written. and madison thinks a class of elite journalists, whom he calls the literat, will slowly

disseminate reason through these in newspapers. i'm seeing these right chuckles in the audience, but that was the hope that the federalist papers are not beach reading, you have to dig into them. they were published in newspapers and the idea was that citizens would buy newspapers, and these are partisan newspapers, and they would slowly be informed by the literati, the leading citizens and by journalists, and they would suppress their passions and allowed cool reason to prevail. madison thought these new media technologies would maintain the benefits of the extended republic in making it impossible for factions to organize quickly, but also counteract the detriments of the extended republic by allowing reason and information to disseminate across the land. you cannot have popular government without popular information. it was crucially important for

citizens to educate themselves about complicated factual arguments and about the principles of government in order to make informed decisions that made self government possible. so the media is central to medicines conception, and his defense of free speech in the virginia resolutions opposing adams infamous sedition act remains one of the greatest expressions of faith in free speech in american history. both madison and jefferson, in opposing this edition act, which allowed the republican president to put his critics in jail but not to jail the critics of the federalist -- for the republican vice president thomas jefferson can be criticized with impunity according to the sedition act, but the federalists president cannot. madison said because our rights of speech and opinion come from god and nature, and the rights of unbridled criticism of public men is central to the

triumph of reason in a democracy, therefore the only kind of threat that could justify the suppression of speech is the threat of imminent violence. the great jeffersonian louis brandeis channels madison in the greatest free speech opinion of all-time. in particular of the 20th century. whitney versus california where brandeis talks about, once again, the importance of citizens cultivating their faculties of reason. this theme emerges in whitney and brandeis says those who made our revolution believe that the final and of the state was to make men free to develop their faculties. and that in its government, the deliberative forces should prevail over the arbitrary. they value liberty both as an and as a mom -- and as a means. they believe liberty to be the secret of happiness and courage to be the secretive liberty. that is a quotation from pericles funeral or ration as translated, and represents

brandeis jeffersonian and athenians faith. they are means indispensable to the discovery and spread political truth. that without free speech and assembly, discussion would be futile. that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine, that the greatest threat to freedom is inert people and that there should be a fundamental principle of the american government. in those extraordinary words are contained all of the things we're talking about. the fate of one reason and the duty of citizens to call to make -- cultivate their faculties of reason over passion. channeling jefferson's belief that we all have faculties with passion at the bottom and reason at the top. that reason has to be cultivated through rigorous self education. also this idea that there is time enough to deliberate, the theme of time again, the best response to evil speeches good speech and speech can only be

bad if it's intended to and likely to cause imminent violence according to brandeis, because there is no time to deliberate. go kill jeff now, the lecture has gone on too long. it should be suppressed, absolutely. but short of that, tweeting that the lecture is boring and going on too long. if you tweeted that in europe, i could sue you under this new right that the european union has legalized called the right to be forgotten on the internet. google would have to decide if i'm a public -- public figure and if your tweet is in the public interest. if they get strong and google refuses to remove your tweet, then they would be liable for up to 2% of their -- annual income, which was 60 billion dollars last year. google has removed 43% of the takedown requests it has received in europe. that could never happen in america because of the madisonian and jeffersonian and brandeis seen faith that offense is to dignity are not

sufficient to suppress speech because of our overwhelming faith in the power of reason and deliberation. we think that, as long as there is time enough to deliberate and speech should prevail. friends, the great challenge to this madisonian faith today is the element of time. is their time enough to deliberate now in this frantic world of tweets and referendum? brexit votes and twitter polls and instagram? when people are making decisions with snap judgments and very impetuous passions that the framers feared. is facebook and twitter consistent with madisonian democracy? this is a central and urgent question that we must discuss together as citizens. and it's clear that the speed with which information is disseminating, and the ease with which factions can

mobilize, are a direct threat to the madisonian faith. madison things don't worry about factions mobilizing quickly, america is so big they will never be able to find each other. now we are chuckling, in a minute on a chat room or an instagram post or on reddit, the most mobilized and polarized factions can find each other from across the country and around the globe. they can quickly coalesce into mobs and punish any ideological dissident from their extreme positions, forcing our representatives to dig in their heels and take positions like armies in polarized camps. we are living in an america defined by polarization. some have called it the big sort, or referred to filter bubbles and echo chambers. this is a time when, according to objective statistics, america is more polarized than at any time since the civil war. that is how extreme the

divisions are. in 1960, the most liberal republican and the most conservative democrat overlapped by 50% in congress. today, there is no overlap between those parties. and because of geographic self sorting where people choose voluntarily to live in blue and red enclaves, and because of virtual self sorting where people on facebook and twitter will only read articles they already agree with or share articles that confirm their pre-existing passions, we are completely wall-ing ourselves off from hearing positions from the other side. this is the exact opposite of what madison hoped for. he hoped by slow deliberation with the opposite point of view, that we could allow slow reason to prevail. now we have polarization and snap judgments. what is to be done? this is an urgently important question that we must address as citizens and as teachers. and all citizens have to

converge around recognizing that this is not a partisan problem. it is a constitutional problem of the highest magnitude. i do not have the solutions for you this morning. i want to begin a conversation with you in a moment, but i should say the constitution center has started an exciting initiative called the madisonian constitution for all. the topic we are talking about today. what would madison think about our current congress, presidency, courts and media? and how can we resurrect the triumph of reason rather than passion? today, it is co-chair by the heads of the federalist society and the american constitution society and by senators mike lee and chris coons. we are going to launch it in the fall with a special issue with the atlantic magazine and will ask some of these questions. we will spend the next few years trying to identify concrete solutions to the

problems. just to put one or two on the table to begin our discussion on the social media front, facebook. which has been strongly sensitized to the dangers of fake news and polarization recently, has started in academic project to explore the problem of fake news. they have found that people are more likely to share fake news then real news because it appeals to passion rather than reason. if you see something that is really angry and emotionally galvanizing, people will shared quickly without reading it. that's why researchers in britain were able to predict the brexit vote before it occurred. they saw that the leave messages appealed to angry passions rather than reason. the remain messages were complicated economic arguments. based on the fact that the leave messages were shared more wildly, they predicted the vote before it occurred. this is again a madisonian dystopia.

what is to be done? well, facebook could have put up higher on its algorithm only posts that people actually read. imagine that? it's inspiring from a madisonian perspective, although slightly creepy from a privacy perspective, that facebook knows how long you are spending on every post that you are reading. so they could choose to put up higher up on the algorithm stuff that people would be one example of a digital cooling mechanism in the madisonian spirit. if they wanted to be more interventionist, they could also put higher up on peoples feeds arguments from sources that they might be inclined to disagree with. a scholar years ago suggested putting links at the bottom of web pages, at the bottom of cnn pages you put links to fox news and so forth. it sounded quite at the time because when linked to

something they disagree with and the opportunity to watch cat videos, people might just go to the cat videos. but now the facebook algorithm literally controls what we see on our news feeds and they could, if they chose to, to be more interventionist to raise robustness abuse. this raises grave questions about free speech principle as well as law. should facebook be in the business of deciding what sort of information we should see? who we really want the algorithm to be madisonian rather than based on consumer or preferences? and since the constitution says congress will make no law it doesn't say facebook shall make their law. facebook is not required to operate in a madisonian way, and therefore, there is some legitimate, and it should be a robust debate about whether we want the platforms, or the government, or voluntary self restraint of the citizens to ensure that we develop our faculties and reason by

exposing ourselves to the point of view, but no one of any political persuasion could denied the urgent necessity for us to examine the task together, i think it's time for us to our question and answer, and i would like to learn from you about the important questions and begin to identify other madisonian solutions to this urgently madisonian problem, but the task couldn't be more necessary, it's the highest concern for the future of democracy that we fellow teachers educate our students to cultivate their faculties of reason, that we remember with brandeis, the importance of leisure. brandeis was so excited to learn from his favorite book, the book of commonwealth, the greek word for leisure was

unemployment. he said what a happy land. unemployment can be used for leisure. but he continued, leisure doesn't mean less work, it means more work, but more focused work on cultivating reason, and on collecting facts, and reading industrial reports. and the founders, and philosophy, so that all of us are capable of what he called the duty of public participation. your task is urgent. it's central. there's nothing more important than teaching student about the essence of an american democracy because democracy will falter into the mob in precisely the with the founders feared unless you continue on your urgently important task. and therefore, i will just close with two inspiring phrases of brandeis. he was called idea by many, including franklin roosevelt. partly because he looked like

the profit idea with his white, here and his tendency to pace up and, dan and insist on the of maintaining tradition from the ancient greeks, he was also called idea because of the beautiful phrase from the profit. come let us reason together. and that beautiful phrase encapsulates grand isis and the framers madisonian hope, and we could just end with the fennell words of grand ice. if we could govern by the word of, reason we must. thank you so much. [applause] tell him where you are from. so he can have an idea of where you're from.

>> tom here from south carolina. the madisonian reason,, how would you explain that much of the revolution was in fact a product of passion? pain, sons of liberty, tea parties, and even much of the declaration was designed to appeal to people's passion. was the revolution the product of passion, of reason? that would be my course? >> that's a wonderful question. just to make sure that everybody heard it, the revolution, thomas says was arguably a product of passion rather than reason. pain and some of the other revolutionaries motivated people in opposition to tyranny. was madison distinguishing to strongly between passion and reason? i think the answer to your question is yes. it's interesting that pain was a a much more fan of direct

democracy than madison and hamilton were. and the greeks did not draw us from a distinction between reason and indictment as the indictment framers. did they believe there was passion and, reason reason impassioned, and in fact there were civic ceremonies designed to produce the productive professions rather than the unproductive forms. and the tribes of angry's during the plight of fifth century athens would -- into the demos, and set aside their differences, and it wasn't in the bubble which is five representatives, 500 people, so it's 50 tribes. oh my gosh, my math is bad. there's a whole lot of representatives filing in. and some say that it was once the ceremonies broke down, and the tribes began fighting with

each other through tribalistic organization that the whole thing broke down. also, the modern scholarship suggest that the firm distinction between passion and reason is overstated dick hurts error suggests that the enlightenment, giants like dick hart distinguish too strongly between passion and reason, and both are necessary for informed decision making. so i think pain and the channel democracy is exactly the right model. and as we think about resurrecting reason today, we can't neglect both modern neuroscience, and ancient greek learning about the importance of productively channeling passions, so that it can motivate people to defend liberty, and to ensure democracy, with that gina -- degenerating. so thank you. yes sir, in the back.

>> [inaudible] you are talking about technology, and the speed, the cooling off, increasingly being one of the old guys in the room, everything is going to much faster every day. you've got, students teachers, they are weaving their watch, getting coffee from a virtual gun ball machine, now we are talking about essentially virtual elections. in a practical sense, have you thought about how we would slow this down without looking like the old gray headed luddite? >> this is also a central, crucial question. you say things have moved so fast. will you have stood immediate results into bank and voting and thinking, expressing ourselves online. how do we slow our things down without looking like let-ites? that is the hard question if the setup. the first thing we have to say

is that the framers are not let. it's the radicals. they are radicals. the idea of having slow, thoughtful deliberation by the majority is a radical idea in a world where king and strongmen, thugs prevail. so there's nothing luddite about the enterprise. and there is also nothing luddite about embracing social media technology for the remarkable ways that it could frame the framers hopes. the seam technology that allows us to get gambles or look at cat videos allow us to download the federal's papers or the most inspiring information about -- throughout history which i had the incredible experience to visit athens itself or listen to the most creative music created in the world at any moment. but it require self discipline. it's up to us to use these extraordinary technologies for

high purposes, and to promote reason, rather than to amuse ourselves to death. so part of it is not rejecting these astonishing technologies, i mean how exciting brand it's or medicine must have been about the ability to within moments download the greatest thinking of all of history. madison was sent by jefferson all of these books but french philosophy during the summer. i think he was preparing his notes on democracy. now we can get them in a moment. so we just have to marvel, and thank the almighty that we live in a world where we can have access to this extraordinary information, if we can train ourselves to ease up properly. but the other question about how to slow things down, or just put speed bumps or breaks before instant voting is a political and constitutional question. if we can persuade our fellow citizens and students that

instant voting is not good, changing the constitution and fundamentally withdrawing from the european union based off a one-off vote is not a madisonian idea. it is not possible in america, even with social media technologies, to make fundamental constitutional change with a single one-off about. thank goodness. this is one of the many parts of the constitutional system that survives. amending the constitution is extraordinarily hard, and it should be. madison feared a second convention. he thought, unlike jefferson who wanted a convention every ten years, that it was basically a miracle that given the fact it was practical politicians that showed up, he wait a second confederate -- a second convention would lead to mobs. again, i do not have the answer to how to harness or slow down these technologies in order to

promote reason over passion, although the facebook algorithm example is just one small tweak. but it is crucially important, as you suggest, not to resist these technologies and to say that people should live in an age of horse and buggies and quill pens. we have to embrace these technologies. that is where we and all of our students live. we have to train ourselves to use them wisely for a reason and also to debate constitutionally about the ways of preserving structures that prevent us from using the technologies to make quick decisions that cannot be reversed. thank you for that. yes. no tweeting, but notes. >> i am from south carolina also. you used the term fake news. i thought fake news has always been with us since the gazette, the broad sides, william randolph hearst.

is there a danger in giving it a new term in that people will dismiss the other side by using the term fake news? >> yes, there is a danger! yes there is! i'm so glad you raised that question. jefferson rejects any attempts to distinguish between facts and opinion. he says because the natural rights of conscience are individual, and each individual must decide for him or herself what is true and what is false, to empower a judge or government official or a 27-year-old lawyer at facebook to decide what is true and what is false would attack our inalienable rights of conscious. i reject proposals by some that facebook should decide what is true and what is false and label the false stuff. that is up to citizens to

decide for themselves. this is not rejecting the enlightenment faith in facts. we must, as a society, converge around the idea that there is a distinction between truth and falsehood. but ultimately deciding what falls on which side is up to each of us as individuals. that also does not mean that facebook can't identify accounts that are created by bots to intentionally create falsehood. if it's clear that stuff, that intentional falsehoods are being deliberately distributed, then that may be a role for technology rather than law. because american law allows the suppression of falsehoods only when they cause harm to a reputation. and you could imagine falsehoods that do not cause actionable harm because they are essentially political speech, but they nevertheless

could be downgraded because they are false. i thank you so much for reminding us. i might think something is fake, but that is up to me to try to persuade my fellow citizens to embrace. ultimately, each of us have an individual responsibility to culture -- cultivate our faculties of reason to make informed decisions. that's why it's the job of all of you teachers in this room is so crucially important. news literacy is helpful. teaching your students to distinguish between reliable and unreliable new sources is helpful. teaching them to be thoughtful madisonian consumers of news so they can seek out positions that they disagree and debate them is helpful. listening to news sources that bring together opposite points of view. i have the incredible privilege

of every week costing a podcast called we the people where i call the top liberal and conservative scholar in the country and debate the constitutional issue of the week. i just learned so much from these amazing podcasts, and so do our listeners i hope. i can't have an informed opinion on any of these issues until i've heard both sides. i want you to encourage your students to do that as well. but you are absolutely right, let us not have the government or the president or facebook deciding for us what is true and what is false. >> thank you. >> thank you so much. >> i'm from wisconsin. what are your thoughts in regards to a second constitutional convention that call for a separate amendments to be proposed by the states or opening it all up again? what are your thoughts? >> the question is what are my thoughts about a second constitutional convention, either limited to specific amendments or one that would be

open? so, it's not a hypothetical or fanciful suggestion. 27 states have called for a convention of the states that would propose a balanced budget amendment to the constitution. you only need 34, so seven more would produce the convention. remember, there are two ways to propose an amendment. either two thirds of both houses of congress can propose the amendment, or two thirds of the states can call on congress to cement a convention of the states to propose an amendment. that then has to be ratified by either three quarters of the state legislatures or a special conventions, the quarters of the states. it is not out of the realm of possibility that seven more states could call for a balanced budget amendment and that we would have a convention of the states. what are my thoughts? we've debated this question at the constitution center of course. i will just give you the arguments on both sides and then tell you what i think. the argument in favor of it is that we the people rule.

if we feel strongly enough about a balanced budget amendment to wanting to try to add it to the constitution, and congress is refusing to enact this amendment because they, for their own political reasons, think it would be not in their interest to balance the budget, then why shouldn't the people be able to call for a convention? or, think of other amendments that might not be able to be proposed by congress, but could be proposed by convention of the states? like term limits. some argue that term limits are a good madisonian cooling mechanism that prevent representatives of becoming two entrenched and polarized. people would be less likely to pander to their base if they were term limited. it might be more madisonian. and yet, the supreme court said that federal term limits are unconstitutional. so you would need a constitutional amendment to have them, but congress will propose it because they don't want term limits, so why not have a convention of the states?

the argument against it is that the danger of the runway convention. so you could call a convention just for a balanced budget amendment or term limit amendment. but we know from the founding and from the civil war that a convention once called isn't constrained by law and can propose whatever it likes. then this incredibly -- in this incredibly polarized time, the argument goes that people who are delegates to the convention would be the same polarized state legislators or congressional representatives who are already dividing america so dramatically now. so a polarized convention might well repeal the first amendment or propose things that appeal to one side but not the other. the counter to that fear is, fine, they could propose with a like, but first of all it has to be a majority to propose anything in order to get reported into the convention. more significantly, but the height ratification requirement, three quarters of state

legislatures is so hard to meet that, if people try to repeal the first amendment or two other mischief, that it would never pass the ratifying convention. i will tell you what i think in a second. based on what i have said, who believes with jefferson that there should be a frequent constitutional conventions and that we should have won now? >> who believes wet madison that it's dangerous to have them and we should not have one now? this is a madisonian group. not everyone was voting, but you want to hear more arguments on both sides. i think i am with madison. given polarization, i think it unlikely that you would get a majority to call the convention to begin with, and i'm not convinced that the convention itself would overcome polarization unless deliberation were structured in

a more thoughtful way. james fish can at the university of texas as shown through his deliberative polls that when people are given an opportunity to hear competing arguments and required to deliberate over a period of days, they often can become less polarized. so perhaps if this convention were structured in a way that was not allowed to vote. my fear is that the convention would convene and immediately vote on twitter. if it was a multi day convention, and you had to hear all, arguments may you get the three quarter of the ratification would be adequate, but right now i think better safe than sorry. >> my name is nicole. i'm from indiana, southern indiana. when it comes to lee bring, ice when he had the opportunity to be part of woodrow wilson's cabinet and then turned down

the opportunity, or turned it, away and then was nominated for the supreme court and accepted that, i kind of asked this question the other day to chief justice roberts, but in your opinion as well, when you are in that level of magnitude for the powers of the government, when you're in a position and you are no longer designated to identify your political party that you support or identify with, tell me your opinion of being on the supreme court, the motives of your position within the power that you have with a people as well to not be identified as a political party, but more so in your beliefs and which are in favor of whether you're leader and you disagree with the case at the time. >> great question. of course, chief justice roberts and sir is much more relevant than mine. i don't know what it, was i will check it out. i reject the idea that the

court is a group of politicians. i agree with chief justice roberts who said very powerfully and repeatedly that it's important for the court to stand for a kind of non partisan legitimacy that transcends politics. and it's inaccurate, simplistic, in dangerous for citizens to perceive the court as five republicans and four democrats or would have. you and i think descriptively over the course of time others a strong correlation between the considered will of the people, and the courts, judgment in other words, the court is intended to reflect thoughtful considered popular opinion overtime, and in the rare occasion exploits it as in the deal of the civil war it's backlashes of the individual retreats. that's madisonian function because remember this isn't the court reading the election returns. on a daily basis. it's reflecting the thoughtful current of reason and popular opinion. that's exactly what medicine thought that it should do.

and that the constitution is supposed to embody. so in that sense, the court has very appropriately and appropriately responded to what justice ginsburg has called nudges, rather than -- she's also talked about measured motions. the court has often pushed gently ahead or pushed gently ahead or dramatically afforded popular reason. but the other thing that i want to say. and i want to teach that the constitution center and i hope all of you will teach as well is to distinguish between judges political fees and his or her constitutional views. it's urgently impossible to teach citizens about the different methodology's of the constitution so that they understand that there are different kinds of liberals, and different kinds of conservatives. chief justice roberts is a institutionalist who makes the institutional legitimacy his highest priority. he says i have the opportunity of interviewing him right

before he got into the court and he said i hope that when people go back to my opinions, they will see that a lot of them reflect a concern of constitutional legitimacy. just in a term, look at that nearly unanimous opinions in the case of the gerrymandering case where the justices avoid polarizing broad constitutional decisions in a eight to one, seven to, two on technical grounds. this is the chiefs vision, and he said modeling himself after chief justice marshall, i think it's inspiring vision that's good for the courts legitimacy, for what it's worth. but not all conservatives share that vision. justice thomas is a originalist, as justice scalia was, and he's a and -- he think that it needs to be considered in terms of its original understanding and meaning, regardless of whether that's good for the courts legitimacy or will lead citizens to perceive things in a partisan way. and it will overturn decisions

they think are inconsistent with the original understanding, even as the heavens fall, as the saying goes. the former justice souter was a burke ian traditionalist who thought that precedent was extremely important. on the liberal side, we have incrementalist's, justice ginsburg who criticize roe v. wade for moving too broadly and deciding a highly contested questionable sweeping terms rather than allowing the political process to take its place. with a pragmatist lake justices kagan and boarder who joined justice roberts in a series of justice -- seven to two decisions with sara meyer and ginsburg because they believe that the function of the court is to function as a court, and to reach practical solutions that both sides can converge around. and then justice sotomayor, who is a inspiring crusader for the

vision of correct constitution and justice, brennan regardless of his practical consequence. so here i really want to work with you to teach these methodology is. first, the original understanding. second, history and tradition. third, precedent. fourth, pragmatism. fifth, natural lot. justice kennedy who just retired believe that we have certain rights that come from god or nature and not from government. and that should be strongly enforced by the government, and by the court, regardless of whether or not they are enumerated in the text of the constitution. so both the right to privacy and autonomy, which justice kennedy so memorably summed up and at the heart of liberty is the right to -- and meaning of the universe, the mystery of human life, justice scalia dismissed that in the middle of the sweet victory, the life passage, but it is a powerful and strong

expression of the natural rights of autonomy, and dignity that the court has affirmed, now repeatedly. burgle, the marriage equality decisions. it represents a natural rights based philosophy. if we can teach our students not to succumb to the easy mode of reducing every decision to five to four politics, encourage them to read the majority decision, and read the dissent, and identify the judicial philosophy animating -- [interpreter] so they can understand why in the case of the motorcycle which was a two one with scalia, because he is more of a law then order justice, who believes an executive power, and thinks that executives should have great, reverence unlike all of his colleagues. that isn't to say that we don't live in a incredibly paralyzed

-- polarized time. we are about to experience the most divisive supreme court appointment. that the stakes are really high. there is a very big difference between two liberal pragmatists and two conservative pragmatist and so. and it dismisses everything that's beautiful and limiting and inspiring about constitutional law to reduce it to politics. many do. many of my dog distinguished colleagues in the can we do. as a shorthand, it's not, you know, it's not untrue that there's often overlap between the politics of justices and their results. but not their reasoning. their reasoning for the decisions have different reasons and all justices will say that they're honestly motivated by their methodology's and the correct use of the constitution rather than by politics. i don't think that any judge has ever voted thinking that i want to help this party or that result. they have world views.

and it's our job as citizens, students of the constitution to teach them. let me teaching the constitutional methodology part of our arsenal just as all lusted and's are required in constitutional law classes to separate -- and learn the methodology's of constitutional methodology. let's teach constitutional methodology's all the way through middle school and up we are learning. thank you so much. >> i'm from new jersey. we have a lot of trips to the constitutional center. >> wonderful. >> you mentioned before. to go back a little bit about the electoral college. that's one of the school mechanisms. my question is twofold. number one. madison obviously saw a lot of the undoing of his original intention of the electoral college. i wonder if he ever wrote about it. i never really read or heard anything about what he thought about the electoral college and how it contributed.

whether there was a rubber stamp. also action there be a little bit more concern about the electoral college? usually after a election like 2016, 2000, there's a lot of talk without coral college. and it kind of dies out.