and now it is a pleasure to

introduce our great panelists for today. wolfen wilfred codrington. the third is an assistant professor of law at brooklyn law school and a brennan center fellow. he's written many scholarly articles and opinions pieces, and we're here to just today to discuss his new book, which is just out the people's constitution 200 years 27 amendments and the promise of a more perfect union and charles kessler a senior fellow at the clermont institute editor of the claremont review of books post of the claremonts american mind

series and dangler daikema distinguished professor of government at claremont mckenna college his newest book which he'll discuss today is crisis of the two constitutions the rise decline and recovery of american greatness. it's such a pleasure to of you wilfred covington and charles kessler your two books are fascinating because they're both about constitutional history and how we should think about the present although they approach it from different perspectives. so i want to begin just by inviting each of you to put your important arguments on the table and professor cadrington if we if we can begin with you at the end book you identify five factors that have coincided with increased interest in the article 5 amendment process over american history which include discontent over supreme court decisions transformational social change the upheavals of war and other crises policy experimentation in the states

and extreme political polarization. there's a lot there but tell us how those five factors tend to explain the big movements of constitutional change around the time of the founding the civil war and the progressive era and how they may apply today. yes. well, thank you for having me back jeff. it's great to be here and thanks to the staff of the national constitution center for putting on this and many wonderful programs. and and so i think you did a great job of just laying out the the five things that we see as patterns or catalysts for constitutional change in specifically for formal constitutional change. that's your textual change to the constitution through article 5, which is the amending clause and so these catalysts are just these combination of things that present themselves these situations right in the lead up to or during major amending periods. so one that you mentioned is

supreme court decisions controversial unpopular ones, and i've written a piece actually recently in the atlantic explaining these a little bit more concisely than the book does but one of those things is we and it has the possibility of opening up the constitution for amendment because as we know whatever the supreme court says on the constitution is the last word or so we can test that at our book what the people say is actually the last word and they do that by mending the constitution. so we saw that in the past before with decisions like the dred scott decision which you know, like sort of led to the civil war one of the important events that led to the civil war and the progressive era there was pollock versus farmer loans trust which the supreme court say that congress had no power to impose a federal income tax and we amended the constitution adding the 16th amendment to say yes, actually we do and that was an important amendment because

it brought us into modernity enabling us to finance complex government operations. we saw it again in the civil rights are with oregon versus meant mitchell and that was a case with the supreme court said the congress doesn't have the power to lower the to 18 and that's what we did. we amended the constitution in the 1970s to lower the voting age. so that's a big one and i say that that's a big one because the amending period and they have the tendency to open up an entire period for amendment but there are others so there's political experimentation in the states this moment sort of agitation trying to experiment with things that states can do but the constitution doesn't necessarily allow or permit or or accommodate so we know for example abolition was a movement that started in the states before we got the 13th amendment. we know that suffrage was happening in the states before

we got the the 19th amendment. we know a lot of things that we've gotten in the constitution have been things that the states have started in the constitution for it all and the other as you said transformation social. change we see this often with sort of new demographics and innovation in technology and a changing and the kind of changing economy. you notice you mentioned intense political polarization. we're in a period right now of an intense political polarization. we saw those before at one point during this civil war it led to a complete dissolution of war where you had a radical republicans sort of running the agenda for constitutional form, but it also happened during the progressive area where you had this sort of coalition this v alignment a parties and power which allowed amendments to come through and the last one is sort of a sense of secure in security and this is something that

happens during periods of war during economic downturns and recession during a pandemic, you know, this is not the only pandemic we're men in constitution could possibly on the minds of americans, you know, we had the pandemic which was ring when prohibition and suffrage was sort of the movements of the day. and so this is what we try to do look at the different periods of history the four different periods of constitutional change and distill those factors those patterns those catalysts that have fomented and facilitated constitutional change. thank you so much for distilling the arguments so clearly charles kessler in your new book the crisis of the two constitutions you contrast two constitutions, which you said have been at the loggerheads with each other throughout american history. one is the founders constitution of 1787 grounded in natural rights and a practical wisdom of the declaration of independence. and the second is the

progressive constitution, which you say is based not on equal individual rights, or i'm changing natural rights, but on rights that travel and groups and very with the historical moment. tell us more about your understanding of the founders constitution and the progressive constitution. okay. thank you jeff. and thanks also to the national constitution center for this kind invitation. it's good to see you again. it's it's good to meet professor cadrington and i've looked at your book. i haven't read it all but i intend to it looks very interesting and very well done from the parts. i've seen. i argue that if you look at american constitutional history at large you can see sort of two major divisions up to let's say the beginning of the progressive era you have the the practical legal and philosophical you might say dominance of the of the founders constitution and it's moral and political and

intellectual presuppositions and beginning with the progressive era you haven't sort of new american political science that woodrow wilson was a very important part of herbert crowley teddy roosevelt in his own way. he was not a a scientist as wilson was but he was up to date on the latest political science in america and the new political science regarded itself essentially as post-constitutional. they weren't exactly anti-constitutional. they were not against the 1787 constitution as amended which they thought was fine for its time. it was the very best in 18th century constitutionalism. but they thought that the world had changed and political science had changed the needs of america had changed and so you needed a looser more evolutionary form of constitutional architecture. and this was what wilson and many many of the other

progressives called the living constitution. when we hear about the living constitution today, it's usually in connection with a supreme court nomination when there's a debate about what is the judicial philosophy of the nominee. but when wilson and the originators of the of this concept used the term, they didn't confine it to the judiciary they were talking about a way of it of approaching politics at large executive power legislative power judicial power and the new forms of mixed power that came to be called, you know, the bureaucracy or the administrative state in washington centered in washington, which combined legislative and judicial power in novel ways. they did this with the best of intentions. they intended to solve america's new social problems.

it's burgeoning social disorders whether it was, you know, new large-scale. corporations and and the problems of big cities of large numbers of immigrants coming all at once from southern and and eastern europe and so forth. they had a an array of social problems which were in some sense new which they thought you needed in a way a kind of new constitutional arrangement to deal with but today we're suffering in a way from the collision of these two tectonic plates the old constitution. which was purposely designed to be hard to amend and the new much more open-ended constitution. and i think if you should i are you hearing that phone call? sorry.

i am no trouble. where do we can it's the administrative state calling? let's see. here we go. you're right. sorry, you were just talking about how this new vision of a more flexible vision of executive and congressional power required new structures. yes, and that's right and um, it required precisely the kind of mixture of powers that madison was very much against and that the authors of the federals papers thought would would really be tyrannical or would eventually become somewhat despotic. and so we have a kind of somewhat incoherent constitutional structure now because we have this informal darwinian kind of constitution from the progressive era over lying and and competing in a way with the formal constitutional

structures of the old constitution one is so to speak. more conservative the progressive constitution is obviously more liberal and part of the bitterness and the lack of moderation in american politics today i think comes because we have these we're sort of we have two constitutions for one nation. and that that sets up a kind of fundamental political conflict that is very hard to manage and very hard to moderate. thank you very much for that and for summing up your argument so clearly because both of you have distilled such clear arguments. i i love to ask each of you to to react to the other so wilfred if i made charles says as you just heard that the progressive constitution regarded itself as post-constitutional and needed looser forms of constitutional

structure new ways of looking at executive congressional and administrative power and this new post-constitutional vision competes with the framers constitution and is responsible for much of our clashes in america today. do you agree or disagree with that as a historical and narrative statement? yeah, so i think that's interesting. i haven't really so i've read your book as well. so, thank you. you know, i wouldn't call the modern sort of view of constitutionalism post constitutional. what i would say is that in what we argue in the book are there these periods and and it's interesting because professor kessler used the word tectonic plate. he also use the word tectonic plates as a metaphor for what's going on, but there are these periods where you have these sort of situations these factors

these elements out there that are sort of rubbing up against each other and create the the sort of potential and the opportunity for constitutional renewal and so professor kessler said that it's sort of like dichotomy these two constitution, but we look at it very much in four different ways. so i wouldn't say that there's this old constitution the old original constitution as we know was what was adopted in the 18th century, but at each generation we added to that and sometimes we actually had to subtract from it, right? so the first generation the big thing we had to do from the framers constitution was to subtract slavery and racial subjectation and we did that in a big way and you know, and that also repudiated this sort of idea of madison's original framework because with the 14th amendment, we know that we had

this reorientation of power we had this rebalancing of what federalism looks like where we now put more power into a vigorous federal government and and took power but controls over the states so they couldn't split back up into this state of slavery and subjugation. so that was the first sort of overlay on the framers constitution the second overlay and i think this is where professor tester picks up. he called he says this is the more modern version was the progressive era and the progressive era was largely a product of these dynamic social movements. so your movement for temperance and your movement for suffrage and you're in sort of populism going on and and also pushing it back against corporate abuse and political and public corruption. right? and so yes what they tried to do is to push back on this and one

of the ways they did that was through the 17th amendment so that way it gave the people the power to choose their senators as opposed to allowing what we're then often corrupt state legislators to choose the senators and i said they push back with the prohibition which was failed but meant to be this sort of novel purifying force in politics and suffrage including women into the american people finally and then there was there was also the sort of development of the administrative state that that we look at as sort of a failed era for formal constitutional reform, but it did change the constitution nevertheless. so the constitution is changing even when we don't change it directly and this happens again during through supreme court decisions through the politics the new deal era was one of those big sort of informal amending periods, and then we

get to the civil civil rights era again and that again smaller smaller amendments formal at least but a lot of the energy there was also to sort of repudiates some of the failures of the past eras of the constitution and this one really was to bring to the surface again the promises of the reconstruction era which had been ignored for eight nine decades when jim crow was the law of the land in parts of the country and so yes. is this sort of base of the sort of madisonian framework of the constitution that we got in the 18th century, but with every every big amending period we added to that and to make it a more democratic more promising more inclusive document that was better suited to govern the american people at the time. thank you very much for that and thank you for identifying that

important point that as you say progressives viewed the new dealism informal moment of constitutional transformation, even though it didn't culminate in a formal amendment and conservatives dispute that new deal was a legitimate act of constitutional amendment because there was no formal one and much of the battle over the legitimacy the administrative state focuses on on that question to charles kessler if i if i may ask you to respond not to that point but to wilford coverington's historical claim that interest in article 5 amendments over time has coincided with periods that include discontent over supreme court decisions transformational social change the appeals of war policy experimentation in the states and extreme political polarization just as a narrative and historical statement. do you agree? agree with with that account.

i i think that's a very good and accurate account. i don't really have any disagreements with it. i think it is interesting though that well one thing that is very nice about his book. is that professor codington notices precisely the way that the emergence of these amendments over time and often in groups of them all at once or in a very close proximity to each other is tied into the rhythms of american politics. and it's it. it's in a way a kind of tribute. maybe a backhanded one to the framers wisdom and making it difficult to amend the constitution so that when you do you sort of get pent up political and social forces. they have to chew on it a while and figure out what is what amendments are really needed. and which ones can we find a super majority of the country

and the congress to support so that it's a kind of combination of the of a willingness to change an openness to change in the constitution itself. the framers didn't after all think the constitution was perfect and should be unchangeable that article 5 is in the constitution precisely because they foresaw that defects would need to be corrected. we need to be discovered and corrected and that conditions would change and that some form of of very deliberate and considered and occasional constitutional amendment would be necessary. they were they were very realistic about that and his book nicely shows how you know in episode after episode you get these these well, you know well considered and in a way, yes mutually supporting bursts of amendments to be added to the

constitution, but the interesting thing i would say is how we in the 20th century those bursts of amendments have stopped. and where you would have where you would have expected another couple of amendments to be added precisely in the new deal as professor cadreton was was saying you get you know, you don't get one you get what fdr calls the second bill of rights. i mean, he really worked this out. he had a list of what would have been presumably constitutional amendments in an earlier day a bunch of them that he would have offered and probably been able to pass at least many of them through his heavily democratic congresses in those days and through this and perhaps through the states as well. he'd never offered them as formal constitutional amendments and that i think is very revealing because it shows in a way that if you have the living constitution, you don't need to

go through the the complexities of the formal amendment process the idea. is that the real and increasingly relevant constitution is a very flexible one and unwritten one one that can change as circumstances change and you don't need formal amendments to an informal constitution, which is the real distribution of political power at any given time in american politics. so whereas the founders thought the constitution had to be above normal politics had to float above statute law in order to keep politics within certain moral and constitutional boundaries. the new understanding really is that it's not government that sets. it's not the constitution that sets the limits on government. it's in a way government that sets the parameters of the constitution and you don't need formal amendments. to an informal constitution and so the second bill of rights

which was perfectly set up. to to add to the you know enumerated amendments it gets realized by program by the addition of programs to the federal government you get you know the right to health care the right to a job all these new socioeconomic rights in the second bill of rights are fulfilled by federal government programs budget items not by constitution a change in the constitutional writ per se and i think that shows you we're in a different era. constitutionally then anytime in the 19th century or in the first say two decades of the 20th century. thank you so much for that and and that leads me to ask you, wilford, covington. um are we in a different stage than we were at the end of the 19th century? you're end your book by saying that this looks a lot like the

gilded age a time when politics were divided between that errors 1% and farmers and exploited laborers in the sense of urgency gave rise to constitutional push for constitutional reform. it's reasonable to anticipate that this time of partisan gridlock. you say well someday give way to a new governing consensus only time will tell whether the american people will be inspired as previous generations have been to form the political coalitions needed to foster the next range of constitutional change. i mean the obvious question of course is as there doesn't seem to be any chance of a meaningful constitutional consensus on the horizon that could lead to a new amendment even the amendments about which there seem to be the most consensus as a policy matter like term limits for supreme court justices, which are constitution drafting project at the constitution center found the conservative and progressive teams agreeing about has seem to have no chance of passing because the difficulty of getting stuff through, you know congress to be

proposed or the states to be ratified. so the the question is do you believe that we will see constitutional amendments following the factors that you at every time previously? history have led to formal constitutional amendments in the past. yeah, so i just want to make it clear that i mean, i think some people tend to look at history and think that the future is a foregone conclusion and that's not the position that we take what we do is try to show the similarities that have existed in other times leading up to constitutional change and say that hey this is this is not reason to be despondent. this is not reason to lose all who know that in periods that have been far more difficult than this, you know, the civil war was far more difficult this the sort of early founding period we could have lost the constitution without constitutional amendments far more difficult than this and

yes, it's it's pretty bad out there. i think people are understandably frustrated with the conditions today the social conditions the political conditions and so we try to do is to say but we've been here before and so it's not a foregone conclusion that will take take the sort of seize the mantle here and and push for that change, but i do think some of the things we're seeing today are eerily reminiscent of past periods. so i spoke about the the sort of social movements that were going on during the progressive era. well, we're seeing robust social movements today as well and not all of them have constitutional change on their mind, you know, we've seen the sort of nation facing. it's really reckoning with anti-black politics and anti-black discrimination and you seeing the black lives matter movement come up and that

is a robust movement. we saw in the wake of the 2008 recession that you had the occupy wall street movement come about and sort of talk about highlight the disparities between the 99 and the one percent. seen the sort of robust women's movement with the marches like that now are almost common taking to the streets and to the mall and sort of demanding equality. and and that one i would say is very much aligned with a push for a constitutional amendment specifically the equal rights amendment which failed when it was initially passed by congress and sent to the states. so we're seeing that we're seeing this sort of why chasm between the haves and the have nots we're seeing political polarization and swings in control of the government, you know in the lead up to the progressive era in the 1876 and again in 1888 you had two times where you had the electoral

college misfire not dissimilar to what we got twice in two decades in 2000 and 2016. so i think it is difficult, but the goal of this book is to show that it has always been difficult. it's always been perceived as difficult and then when things seemed impossible people who had been laying the ground for decades actually found an opening where they could turn those projects that makes the country better and more democratic and more governable turn those projects into something real and and changing the constitution along the way. thank you very much indeed for that. a charles kessler it has the constitution become harder to amend than the framers anticipated. i mentioned a few amendments about which there seems to be broad a conservative and liberal

agreement the possible term limits for supreme court justices is one the other thing that our constitution drafting teams agreed on the conservatives and progressives agreed on an electoral college amendment. that would have a national popular vote and indeed session amendment came within a few votes in the senate of being proposed in 1971 and was endorsed by both political parties, but was thwarted just by a couple southern senators. so he's do you think there's a case that it's now impossible to get amendments about topics for which there's broad bipartisan consensus or is this the way the constitution is supposed to work and has always work in terms of the difficulty of formal amendments. well you you have to you. to come to some consensus before you can have an amendment. i mean you need, you know, classically two thirds of each house of congress and three-quarters of the states to agree to it, and that's a consensus. um, but right now we're very far

from such a consensus and and things are complicated because the the standards by which you evaluate constitutionality differ basically from the older constitution to the modern progressives constitution. we're really talking about competing constitutions rather than simply ways to interpret the same written documents. and that's that's why i mean after all the the 13 14th and 15th amendments which professor codrington rightly pointed to as perhaps the most important of all the amendments after the bill of rights and maybe even including the bill of rights to a certain extent. in our constitutional history that consensus was only possible after the civil war. as a result of the civil war but one side had to win and the other side had to lose, you know profoundly. in order to create the conditions of political

consensus that a native enabled the 13th 14th, and as especially the 15th amendment to pass and then those amendments had to run a gauntlet of traditional interpretation. which in some ways was the gasp of the of the pre-sivil war amendment constitution coming to life. um again, so i think it professor coddington and i might disagree about how to understand those amendments the 13th 14th and 15. i would understand them as basically i think lincoln and the party of lincoln would have understood them to be really fulfillments of the anti-slavery premises of the declaration of independence and the constitution. um rather than a repudiation of the original constitution, and that's a very big question highly contributed still today was controversial in the 1860s.

it's certainly controversial today, but you can learn a lot from looking at the terms of that controversy, but i think today i mean the case of the era is interesting here is an amendment which fit the bill for. you know that from professor cockington's point of view. it should have been added to the constitution in the 1970s instead of being stopped just short of being added to it. it was inclusive. it was progressive. it was the thanks which professor coddington i think regards as good constitutionally, but it failed the test of popular consent. it couldn't get it couldn't get the three quarters of the states that it needed in time. the last amendment to be added to our constitution the 27th amendment. was was it initially proposed by james madison? it was one of the original group

of amendments out of which came the bill of rights in the first congress of the united states. it took 200 plus years to get it added to the constitution. that is a remarkable occurrence, but it does suggest that we've sort of run out of contemporary amendments that can run the you know, the that can survive the process because there is no sufficient consensus i think for them so i i would be somewhat pessimistic to answer your question that any any of these any of the amendments that the ncc has looked at is probably likely to be added anytime soon. although the judicial one of them all i think might have the better the best chance, but that it's so caught up in the question of which way the court is going to go in the next couple of terms that you know, i think it's too controversial to

make any headway. thank you for that pessimistic prediction which that cool live and you may well be right but we will at least in our state of nature or state of zoom have a wonderful test of the ability of the progressives and conservatives and libertarians to agree when they all reconvene at the ncc and virtually in just a few months and see if they can agree on the words of anything. that's a wolford covington. we've got a bunch of questions in the chat about this question of the administrative state does one of these visions of the constitution parallel with the conservatives call the constitution and exile says david silvassen and indeed the constitution and exile of was a phrase used by judge doug ginsberg a friend of the ncc to describe the need to resurrect limitations on the powers of the administrative state such as the

non delegation doctrine and the uh limits on the commerce power that have been dormant since the new deal. this is as you heard charles kessler say well for covington a very big issue for conservatives who think that the whole new deal was illegitimate because it didn't have a formal constitutional amendment and there's some real constituent see on the supreme court for rolling it back. how does this particular battle over the scope of the administrative state and its constitutional legitimacy fit into your framework and and to what degree is the the expansion of the current administrative state in your view supported by popular movements among progressives? hey, yeah, and so i just want to quickly respond just to give a little bit more of a hopeful. look on this all i do think that there are amendments if we could get our sort of political house in order that the american people could rally behind so you mentioned the electoral college

the electoral college is one of the two most proposed ideas for amending the constitution as you noted it can very very close to becoming an amendment in the 1970s except for us stall or southern's segregation is a filibuster to stop it. it had 80% of the american people backing of it right now. we talked about and actually it's it's interesting because dr. kessler talks about what might promote a crisis and he mentions the supreme court decisions as well. so it's we do have some more of an overlap there and i think that one of those decisions we see that as universally reviled as citizens united and i think that unite progress and conservatives alike. you know, there's a there's a smaller bandwidth of people who think that corporation should have unlimited sort of financial power and dominance and say in our elections and then you noted the the supreme court decision or the term limits on the supreme court, and i do think that that's getting some

traction. what though? there are a number of different proposals for restructuring it and thinking about the supreme court. so i think that there's more optimism there. hopefully we can kind of get to that but in terms of the new deal, i think that you know, it does it fits and it doesn't fit in our framework and we sort of think about the four big periods of amending the constitution almost a founding arrow. largely bill of rights and 11 and 12 reconstruction era the progressive era and the civil rights era and then in the sort of this middle state you get a few little staccato amendments, which is totally rare in constitutional history and and at that same time time you're also getting that informal change with are so the idea there is that you know fdr certainly is dr. tester mentioned had overwhelming power. so maybe he could have done something about it formally but it seemed like he was confused as to what the actual proposed

amendments might say and what they might do. he was a little bit worried that the supreme court that would ultimately have to interpret amendments would sort of continue along the lochner era and the conservative sort of line of not giving power to the words of the constitution and and so he kind of just took his chances with sort of popular democracy behind him and pushing for a more robust state to count her act what were what was the critical issue at the time the great depression, but then into the war right and so you know like that and that that was a fateful decision. a constitutional theorist stephen griffin, i believe he's that at tulane and he just says, you know, maybe there would be more consensus on the power and the legitimacy of the administry and the new deal if we were to have actually ratified the child

labor amendment which was symbolic of that period what was going on because the court was saying that there was no power to regulate child labor. and so yes we got to this period where we had this revolution that could have been a constitutional revolution in the formal sense and what we ended up with is the sort of debated administrative state which were still contesting today? what are the bounds of the sort of administrative and regulatory apparatus and the programs like social security and other things that sort of extend from that and we're going to continue to have that debate my my hope is that what we can do is sort of terminate some of this debate with some amendments that will sort of solidify our understanding that would be fantastic. but until then we're gonna continue having this debate with conserve this and progressives attributing certain levels of legitimacy and illegitimacy to that period thank you so much

for that charles kessler. would the conservative objections to the new deal administrative state drop away if there had been a formal amendment after all fdr, you know considered one and it might just as well have passed as not or is this a much more fundamental disagreement about the scope of federal power and to that degree? how do you talk about different disagreements among conservatives can of we know the conservative presidents have embraced rule by executive order and big government just as enthusiastically as liberal presidents have so to what degree does does that reality coincide with the debates that's going on the supreme court. well, that's a good question. i mean there are disagreements among conservatives among originalists. i mean people who call themselves. adherence to address prudence have original intent. don't all of course agree about

that and there were some very interesting schisms. you might say on the right about how to interpret that if you take the issue for example of affirmative action. this is a this is a very interesting one on the right i think because even though reagan campaigned against it and had the chance to sign an executive order or to take other more substantive legislative action to try to cut it back or rain it in or constitutionalize it you might say he failed he didn't do it. i mean, he didn't really try it and conservatives have been divided about it and what to do about it for a long time since but i think the general you mentioned for and the constitution in exile notion and i think that's um, very relevant to the discussion because from the old constitution's point of view or at least the conservative version of the old

constitution. what we have today, is that the congress and the administrative state are sitting as a kind of permanent constitutional convention. able to i mean you don't pass the era but you at what what legislative proposal has been turned down or what regulatory proposal has been turned down because there isn't an era in the congress in the constitution none. i mean basically the the administrative state goes ahead and tries things which would normally have been stopped by the lack of a constitutional provision to support them. the existing separation of powers is a far secondary consideration to wanting to get something done. by the administrative state and you know by the mostly the progressive coalitions that have have invented the administrative state and and used it for a

large percentage of their lawmaking and rulemaking for many many decades now that i think isn't going to go away and it does argue against going through all of the trouble of a formal constitutional amendment process when you can basically find a way to get what you want without having to go through the constitutional amendment process. why go through it? it's it's the condition is different in california. whereby the way we talk about tectonic plates all the time. with a very different actual a point in mind but in california, it's very easy to amend the california constitution. we do it all the time. we do it every two years basically so there have been something like 500 amendments to the to the california state constitution the second

california state constitution that progressive one the one that hiram johnson as governor gave us. um, and and the result, is that the constitution of california is a book. it's book length. i mean it's about depending on the size of the type 250 pages or i've seen it in a 500 page addition. it's a small book. and it doesn't have anything like the moral authority that this short the fourth 4500 words of the constitution and now a little bit longer of course because of the amendments. has and that was one of the reasons madison wanted to make it difficult to amend so that it would be it would not be. um similar to statute law it would be a higher law a more fundamental law to control statute law and even to control popular majorities to some extent in the future. i think that in the current situation where we don't

formally consider amendments very often because we don't consider the formal constitution. all that relevant to what actually government is going can do and will do we're in danger of losing some of the moral. a high ground some of the the veneration of the constitution that madison and many others talked about as a central to keeping constitutional government. as something different from the government that floating ever-changing popular majorities or legislative majorities can enact and that i think would be the the comeback from as it were the the first constitution to the second constitution that when this constant when the modern-day constitution is essentially itself a product of the legislature or of the bureaucracy it no longer has any majesty it no longer has any um

moral weight, or at least not the same kind of majesty and moral way that it that madison and hamilton and washington thought it needed. in a very robust democratic political regime thank you very much for that. wolverton charles kessler just suggested that the administrative state and affirmative action or the product of the legislature and of the bureaucracy not of the constitution and i want to ask you about affirmative action abortion and gun rights next week. the supreme court is going to hear both the most important second amendment case of the term as well as the texas abortion challenge on an expedited basis conservatives. say that abortion decisions and

affirmative action decisions are reading into the constitution rights that don't exist and thwarting the will of the people progressives counter that it's the court that is imposing its own views and uprooting precedence and striking down laws that are well rooted in the constitution. how does this debate which is obviously the central one on the court this term fit into your account of constitutional history mostly coming from the bottom up. yeah, so i don't think that the point of the book should be that there's not sort of rule by elite institutions. that's the nature of a government and but what i do believe is that much of the constitution was written in a way to have a little bit of play in the joints to allow for government and the people to

actually express themselves and exercise themselves and in fact govern themselves, right? so dr. kessler talked about the constitution being rather short. it is rather short for and and rather longstanding and i think it's done a pretty good job, but at various points, we saw that it didn't do the job well enough, so we added 40% more of the constitution after the original constitution was ratified and that of course the 27 amendments and so the things that are happening at the supreme court, they're going to happen at the supreme court. this is what this sort of idea was we have we're supposed to have an independent judiciary that carefully considers the facts and the legal questions before them those that are sort of governing or sort of agitating people and you mentioned a few of them that are gonna be hot button issues perhaps firmative action definitely abortion in a couple different modes a couple

different cases guns, right and and we have this sort of independent body that's supposed to make these decisions as to what the constitution contemplates and what it does it. we've had that happen throughout history. this is the point of mccullochie maryland back in the 1800s when chief justice marshall said, hey, it may not specifically say in the constitution that the congress can charter a bank but congress has broad powers about sort of funding armies and and regulating commerce in the economy that is in the constitution. and so we have to sort of be a little flexible what those means because we don't want to have a california type constitution that spans pages and pages and pages and tones in a book what we want is something that we can work with and when we can't work with we amend it but that gives

the supreme court some ability to to make those interpretations on those important decisions. and as i said when the supreme court gets it chiefly wrong it has opened up path for amendment in the past. and so perhaps that's what we'll be facing again, but these hot button issues i think gives the supreme court more opportunity is sort of step in it if you will and and motivating people from the bottom to push for amendments motivate them and enforce them to have governing an elite institutions to to implement them through tuition amendment thank you so much for that charles kessler. i'm gonna ask you about a portion and guns in affirmative action. obviously the most controversial constitutional issues issues today to vastly oversimplify conservatives. some claim that overturning row striking down affirmative action and ensuring that the second amendment is not a second class, right?

is a way of resurrecting the original understanding of the constitution critics counter. there are originalist arguments against each of those positions and the conservatives are just imposing their policy preference through the court. how do you look at the debate? um, well, i don't know anyone who thinks that roe v wade was a and an excellent piece of of judicial reasoning i mean ruth bader ginsburg many people are very intelligent law professors on the left have have argued for many decades that was a contrived opinion. hard to justify if not impossible to justify by normal legal reasoning and so because we are what we refer to as our abortion law is really not a law. it's it's basically the writ of the supreme court from roe v

wade and in the ensuing cases that supported row over the years so it would be nice from the point of view of the original constitution that that whatever the abortion regime is. it it ought to be legal that is made by legislatures or and approve by the people in some way whether that requires a constitutional amendment which is sort of the maximum case or just 50 state legislatures determining what what they regard as a optional or best in their state on the question of abortion. gun rights i think is also a case. where is a slightly different case where you do have a constitutional amendment you have constitutional writ. and and you can have a good argument back and forth about what the original meaning of it was although to me. it's for a couple of decades now

the the scholarship on on the part of the the sort of speak the larger gun rights argument into as an individual right seems to have won the day that seems to me if if that debate isn't over it has certainly been going the conservatives way for a long time or at least a couple of decades and i don't think that you know, he given the the the second amendment if you want to if you want to circumscribe. gun rights drastically then you probably ought to amend the second amendment. you ought to do it in an above board sort of way, which will never get anywhere. of course. but it but you know the democratic party platform in 2016, and as far as i know in 2020 as well, although i haven't looked. called for amending the first amendment. to exclude citizens united in

cases like citizens united were campaign finance cases to to indicate that speech and money are not the same thing and don't count as the same thing in constitutional in the constitutional balance which is and it's own way quite amazing. i mean who would have thought that a amending the first amendment would be the official position? it of a modern american political amending it to circumscribe. the coverage of the first amendment of political speech in terms of political ads and so forth bought it is true by money. so i i you know, this is going to be interesting because it may in fact vindicate professor caught part of at least a professor cadrington's point which is if the court goes in a conservative direction on one or

two or three of these issues certainly pressures to override the court either by packing it or by amending the constitution to obviate that the court's decision will increase and i think he if that's his prediction, which i think it probably would be i think that's right as far as it goes. i although i remain skeptical that it will increase the pressure enough to result in anything constitutionally. thank you so much for that. well, it's time for closing thoughts in this very rich discussion and i'll just ask for some brief ones so we can end on time as we always do and the question that i'm going to ask each of you. is this um if you had to identify a single constitutional amendment to increase the guardrails of democracy what would it be that the constitution center has a initiative to try to bring together progressives

libertarians and conservatives to identify potential reforms to increase the guardrails of democracy that have been eroded by polarization and technology and i'm eager for your thoughts about what your amendment would be. and the first the is to professor, covington. thank you jeff for that question. and thanks for the discussion and thank you charles for being on the other end of this discussion with me. so as i noted this is probably gonna be very hard because as i noted our theory, is that the constitutional amendments tend to come in clusters, so i'm kind of thinking about it in clusters, but i would say if i had to choose. i would go with something that's going to bolster democracy and that's either going to be a right to vote amendment as you know, our constitution doesn't. sort of positively guarantee your right to vote, but we have a robust anti-discrimination framework in our constitution

that prohibits the right to prohibits discrimination in voting on the basis of race and sex and wealth in the mic. and so we don't have a robust like right to vote and if we look at what some states in the in the country have in their constitution they look at their robust right to vote for free and fair and elections to have gotten rid of political gerrymanding for example, and to to overturn laws relating to restrictive voting id measures for example, so i would add that that in there or i might go with the electoral college and the electoral college again, as i said is one of the most popular we saw what has happened with the electoral college recently. it is problematic twice in to to decades we've gotten electoral college misfires at giving us but have been pretty poorly prepared presidents and it also sort of gave us this opportunity at the end of an election for an insurrection to take place this long period where they're contesting the results of the

electoral college outcome and sort of all the things that came with that in terms of starting an insurrection and legal shenanigans about how you sort of have a coup those sorts of things. i do believe fundamentally that we were to just have a popular vote in a normal transition like most democracies do we would not have been facing that that sort of situation so something that is definitely going to make our democracy more robust more participatory more inclusionary and sort of reflect the real world of people more. i think those are the ideas that the original framers had in mind when they said that we're supposed to amend the constitution sell them only but for big ideas for things that are lacking thank you very much indeed for that and charles kessler. the last word is to you if you had to identify a single constitutional amendment to protect the guardrails of our democratic republic, what would it be?

um, well it would it would not be to abolish the electoral college. i'm a defender of the electoral college. i think our problems really don't have much do with it. um our that is our problems in our elections. i would say some version. i mean one doesn't have to have amendments. you know, it's not a moral. it's not moral commandment. that one should be in favor of amendments, but if one is discussing um the subject i think an amendment that would i'm not sure term limits for judges is exactly the right term to use to describe it but that would spread out the nomination of justices federal justices over president over, you know, every president would get perhaps one or two nominations and so that you would have some

some greater democratic influence over time on the court and break up some of the sclerotic power that the court has drawn to itself both in its liberal phases and in its conservative phases in the modern era. i think that is probably defensible. i also think, you know, something like prop 209 which we had here in california and which survived a an electoral test just in the in the last election cycle here to forbid racial discrimination in government hiring and in college admissions and things like that. um, i think that's i think that's advisable and that sounds like what a classic kind of constitutional amendment should do. but beyond that i i would have to think long and hard about.

the other proposals of ncc and before i would endorse any of them, but i think those two ideas are. are good and if we're if one could rescue the government the constitution from exile um by constitutional amendment, i'd be interested in something that could restrict the power of the administrative state to not sure exactly. that that's possible and if possible what the amendment would actually say, but i'd be interested in hearing more about it. thank you so much wilfred. carterton charles kessler for a very rich discussion. thanks for identifying those potential amendments ranging from a right to vote and electrical college amendment to a term limits and affirmative action amendment the ncc of course endorses. none of these are our role is just to convene people of different points of view like both of you for these thoughtful

conversations and to explore areas of agreement and disagreement and that's exactly what both of you have done with your extremely rich and illuminating interventions. thanks to you friends for taking an hour in the middle of your day to learn and grow together. it's so meaningful to convene with you and to live out the exhortation of justice grand ice come let us reason together and that's exactly what we've been doing during this great hour charles kessler wilson potter again. thank you so much