Episode 32 | The Constitution at the National Constitution Center

In this bonus episode, we cross post our host's appearance at the National Constitution Center. You can also listen to this episode on We the People, the NCC's wonderful podcast. 

Julie Silverbrook, Chief Content and Learning Officer at the NCC, asks Professor Ilan Wurman a series of questions about the Founding and the Constitution, based on his new book The Constitution of 1789: A New Introduction. What was the connection of the enumerated powers to the royal prerogative of the British monarch? What is the separation of powers, properly understood? What is the meaning of "the executive power," and who has power over foreign affairs? What is the nature of American federalism and our compound republic? 

Tune in for this wide-ranging and fascinating discussion of America's founding document. 

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Transcript

SPEAKER_02 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Morman, a law professor at the University of Minnesota Law School. Today we have a special episode for you. We are cross-posting an episode of the We the People podcast, in which yours truly appears with Julie Silverbrook of the National Constitution Center. We discuss my new book, The Constitution of 1789. It is a really fascinating and wide-ranging discussion, but we hope you enjoy.

SPEAKER_00 1:06

As America's constitutional home, the center is dedicated to increasing understanding of the U.S. Constitution through rigorous nonpartisan constitutional education. We inspire lifelong learning by encouraging engagement with the Constitution's text, history, and enduring principles through primary sources, diverse constitutional perspectives, and thoughtful civil dialogue. Throughout America's 250th anniversary and into what we call the Civic Decade, the years leading to the 250th anniversaries of the Constitution and the Bill of Rights, we believe we have a once-in-a-generation opportunity to deepen constitutional learning across the country. An important part of that work is helping Americans understand not only what the Constitution says, but how it works. The Constitution is more than a collection of individual rights or isolated clauses. It establishes an entire framework of government, allocating power among the legislative, executive, and judicial branches, dividing authority between the federal government and the states, and creating the constitutional architecture that has shaped our constitutional democracy for more than two centuries. Understanding that architecture is essential to understanding the Constitution itself. That's why we're pleased to host tonight's conversation. Through our book club series, we welcome authors whose work invites readers to think more deeply about the Constitution. Some of these books reinforce familiar understandings, others challenge conventional wisdom, but all are intended to spark thoughtful conversation. By bringing leading scholars and writers into dialogue with our audiences, we hope to encourage curiosity, deepen understanding, and model the kind of respectful constitutional discussion that is central to our mission. Professor Alan Warman is the Julius E. Davis Professor of Law at the University of Minnesota Law School, where he teaches administrative and constitutional law. He previously taught at the Sandra Day O'Connor College of Law at Arizona State University. He also advised on our governing the nation exhibit, along with a diverse panel of scholars. Professor Warman's new book, The Constitution of 1789, A New Introduction, invites readers to see the Constitution through the eyes of the generation that drafted and ratified it. The book offers an accessible and thought-provoking look at the structure of our government, the separation of powers, and the constitutional questions that continue to shape American public life. We're grateful that Professor Merman is with us this evening. He's joined by the Center's Chief Content and Learning Officer Julie Silverbrook, who will moderate tonight's discussion. Thank you for joining us this evening. We hope you'll leave with a deeper understanding of the Constitution, fresh questions to consider, and renewed appreciation for the value of engaging seriously with constitutional ideas from a variety of perspectives. Please join me in welcoming Professor Ilan Worman and Julie Silverbrook.

SPEAKER_04 4:13

Good evening, everyone. Thank you for being with us. Ilan, whenever we do book talks here, I always like to begin with the same question, which is what motivated you to write this wonderful book?

SPEAKER_02 4:25

Well, thank you so much for being here. I've been here many times as part of the We the People podcasts and uh other organizational events, including the exhibits that I participated in helping to draft some of that. So it's really wonderful to be here. As with most inventions, um, necessity was partly uh its mother. So my last book, The Second Founding, an introduction to the 14th Amendment, people asked me why I wrote that book. And the short answer is my dean told me I was going to be teaching the 14th Amendment. And so I decided, hey, I should figure out uh what I think the 14th Amendment means. And there wasn't an easily accessible, you know, single-volume introduction. And so I started reading what people were saying about it and reading the original sources, and very quickly I decided uh that everybody was wrong about everything. And so that also uh motivated me to write that book. Well, similarly, I've been teaching constitutional law for eight years, and uh there was no, when I started teaching, sort of single-volume narrative introduction to the structure of the Constitution that emphasizes its text, its structure, its history. Uh, so from a very sort of textualist, formalist, some people would say originalist uh perspective. Uh, and so I decided to supply the want. And in so doing, I discovered that a lot of originalists are wrong about a bunch of stuff. Uh, and so it made it all the more fun uh to write the book for that reason. Now, why it came out when it did is about two years ago. I've been writing it for six years, and I said, Oh, America 250. That sounds like a marketing opportunity. And so I really lit the fire under me, and I and I um started writing really quickly, and I told my publisher that it's really important that it come out on July 4. Now they're British, Cambridge University Press, um, and they've messed this up before on my other books, the publication timeline.

SPEAKER_03 6:16

I thought you meant the British.

SPEAKER_02 6:17

No, well, they had messed up other things. Um, and so uh last time they actually did it several months earlier than I wanted. I wanted to come out on Constitution Day, my last book, and it came out several months early. So I introduced new errors late in the process that I then had to correct to make sure we come out close. And it came out June 18th, so I was pretty good. I was pretty on target.

SPEAKER_04 6:38

You wanted to come out a little bit beforehand so you could do book talks on the fourth. I want to get into the content of the book. Um, and your book begins with the premise that many Americans recognize constitutional terms like separation of powers, checks and balances, federalism, judicial review, enumerated powers. These are terms that our audiences are familiar with, but far fewer understand the constitutional structure that those ideas actually describe. Why do you think Americans have become familiar, although not familiar enough, with the vocabulary of the Constitution without fully understanding its architecture? And what do people miss when they skip over the structure, really deeply understanding that architecture, and instead jump straight to trying to contextualize today's contemporary constitutional issues, what they'll read on it in a newspaper or online?

SPEAKER_02 7:28

Um Yeah, so let me say a few things. Um I do say that, I guess, in the in the beginning of the book, right, that everyone's sort of familiar with these terms, but nobody really understands uh what it means. Part of it's to entice you and invite you to like read about the book and like what I have to kind of show. And one of those things is that it turns out a lot of these uh textual and structural questions are a lot more nuanced than people realize. And then when you discover the nuance, it opens up a bunch of interesting possibilities. So I'll give two examples uh in the book. One is the enumeration of power. Everyone takes for granted that Article 1, Section 8 of the Constitution enumerates the federal government's power, enumerates Congress's power. This is what creates a limited national government. Uh, but it's been shown and argued by scholars, or I should just pose it as a question: did you know that the Constitutional Convention rejected a resolution to enumerate power? They rejected a resolution to enumerate power. And then the Committee of Detail that actually drafted the Constitution proceeded to enumerate power. And people have, you know, let this has led people to make all sorts of conclusions like, oh, they didn't actually intend to limit the national government to its enumerated powers. I sort of reject that view. But when you actually look at what why they probably did it, it's very, very interesting. So it turns out that over half the powers that are assigned to Congress in the Constitution are historically royal prerogative powers. So if you're gonna give Congress the power to make laws, if you're gonna give the president the power to execute the law, if you're gonna give the courts the power to adjudicate disputes under the law, okay, well, what do you do about all those historic powers that were considered royal prerogatives? Are they legislative, executive, judicial? Well, you have to list them out. You have to write them out, and you have to give them to somebody who's not the president. And so they gave them to Congress. And once you know that this is probably was a motivating factor for why they enumerated power, it puts a lot of interesting questions into perspective. Um, this is way beyond what I was uh probably the scope of the book, but Justice Thomas has a dissent in the tariff case, which I think is very misguided, where he says, oh, this power over foreign commerce was this historically royal prerogative power. And so Congress can freely delegate it back to the president. And I'm thinking, actually, no, the whole point of the enumeration of powers was they wanted to give Congress all these powers. It doesn't make sense to sort of redelegate it, right? So it makes the just the context, I'm trying to make these otherwise familiar concepts uh richer. Another example, uh, it's sort of like a banal idea that the Constitution separates power. And it does, and there's some checks and balances. So, you know, the president has some veto power, so is involved somewhat in the legislative process, so that's what we mean by checks and balances. But another way that I try to sort of enrich our understanding of these otherwise familiar concepts is what I describe as non-exclusive functions. And this is sort of a theme of the book. It turns out that a lot of what the government does can be achieved by more than one branch exercising its respective power. So people think of like regulations. How is that not a violation of, you know, it's how's that not legislative power when the administrative state promulgates regulations? And what I try to show is that actually some government functions, Congress can reach through an exercise of legislative power, but the president can also reach through an exercise of executive power pursuant to a delegation. So for example, one of the earliest statutes assumed the pension payments to the invalid veterans of the Revolutionary War under such regulations as the President of the United States may direct. And Washington and Henry Knox, Secretary of War, promulgated regulations. Could Congress have done that in a statute? Of course. But could the president also do that, exercising executive power once Congress delegates this? I think yes. And it turns out this just enriches our understanding of a lot of things. Like a lot of people ask, I'm very good at filibustering, by the way, but I promise I'm gonna try to uh bring it to a close here.

SPEAKER_04 11:32

Like I did give you like every major sort of constitutional term to tackle, so I think it's okay to go.

SPEAKER_02 11:38

Like, uh, where does the power to recognize foreign governments come from? Uh so in a case called Zbotowski, the Supreme Court said, uh, we think the president must have, someone must have the power to speak with a unified voice on the question of recognizing foreign governments, therefore it must be the president. And what I show is actually no, that different institutional actors can recognize foreign governments for their own purposes. When the president wants to receive an ambassador, he can choose to recognize the government or not by refusing to receive the ambassador. But if Congress disagrees, can Congress promulgate a regulation of foreign commerce, right? As Justice Scalia in that case said, could it choose to tax goods made in Jerusalem at the same rate as goods in the West Bank versus goods in Israel? Of course, Congress could do it pursuant to its own power. So lots of lots of departments of government, uh, there, although Congress has the legislative power, the president has the executive power, courts of digital power, they functionally overlap. So I wanted to sort of enrich our understanding of these familiar concepts. Okay, last, last thing, and then I'll stop. The other obvious reason people are lack this familiarity is that the modern government, the modern interpretation of the Constitution deviates in many respects, sort of from the original meaning of the Constitution. Um, so everybody understands, kind of understands federalism, but do they understand that today Congress, pursuant to its commerce power or modern interpretations of the interstate commerce power, does way more than the Constitution really contemplates. And then not only does the federal government do a lot more than it historically was supposed to do, Congress then delegates all of that power to the executive. So it's sort of like a double constitutional error. Courts, totally out of control, maybe we'll get to this later, totally lost the original conception of judicial power. The president, there's a big debate over who gets the foreign affairs and war powers. I think it basically all belongs to Congress. And uh so the more we also deviate, the more people sort of reflexively understand these terms, but they don't realize that the way they're practiced today deviates so significantly from the original understanding. Thank you for giving me the opportunity to talk about random stuff that I wanted to talk about in the course of the year.

SPEAKER_04 13:40

I would absolutely love to do that for our guests, but now I do want to get into uh some of the topics that you didn't talk about that were on my list. So let's talk about federalism. It's one of the defining structural principles of the Constitution. How did the framers understand the relationship between the national government and the states, and why has that question continued to shape constitutional debates through to today?

SPEAKER_02 14:03

So the American Constitution was an incredible innovation. It ushered in what was called this new science of politics. They called it the new science of politics. I wish I could call my own work like that. I've established the new science of law or something like that. I think Hamilton called it the new science of politics. So what was the old science of politics? Well, the framers basically believed in the Montescuan universe. And the Montesquian universe basically said, the political science of Montesquieu said that republics could only persist, could only exist in small territories for various reasons. The bigger the territory, the more ambitious personalities there are gonna be, uh, the more heterogeneous people's passions and interests are gonna be. So republics could only persist in small territories. Well, what's the problem by having with having a small territory? Well, the empire next door isn't gonna have a small territory, and they're gonna be very strong, and they can just conquer you. And so Montesquieu said forever we would have been destined to be governed by despotism if we didn't um come up with a confederation, a confederated form of government, basically a league of states that band it together for purposes of common defense, so they could have the sort of strength of a monarchy, but can't keep the sort of internal, the the the right size internally, uh, so republicanism could survive. So this is why the Americans created the Articles of Confederation. But it didn't work out so well. Because it turns out Confederation throughout history actually failed, which is kind of interesting why they thought this would be any different. Um the old science wasn't perfected yet. And so the problem with the Articles of Confederation is even if you league together for things like common defense and war, the government, the central government, operates through the states. It depends on the goodwill of the states. So if you want to raise taxes and troops, you have to ask the states. Did you know that Georgia didn't pay anything to the national government, the articles government for like all of the 1780s? So, like, I don't know what was in the water in Georgia. I mean, uh, but you could see, you could see the problem.

SPEAKER_04 16:03

It's not like things were cheap, like they didn't have costs back then, they just executed a war, right?

SPEAKER_02 16:09

And Georgia, well, okay, Georgia had its own problems and you know, did find you know its own troops and so on, but it owed contributions. There are other problems on just Georgia, like Rhode Island would thwart attempts at a national impost and and so on. I don't want to just pick on the on Georgia, also Rhode Island. And so how do you solve this problem? Well, they decided that what they would do is they would create what's called the compound republic. And the compound republic, it basically takes this insight that you could league together for certain purposes. So common defense, general welfare, commerce, war, things that the individual states are incompetent to do on their own. And within that sphere, though, the government would be binding on the people, it would operate on the people, it would be adopted by the people. In other words, it wasn't the people adopting their state sovereignties and then the states leaguing together in a treaty. The people created both governments. The people created the national government. The national government would be of the people, by the people, for the people, it would be ratified by the people, the people themselves would operate in the halls of Congress, the laws would operate directly on the people, it would not operate anymore through the states. It would truly be a government of the people, but limited to its assigned sphere, to its enumerated functions, the kinds of things that historically confederations did. And this is what they called the compound republic, and it was totally new in human history. And um I think it's worked remarkably well. I don't even remember what the question was anymore, but I'm sure I guess.

SPEAKER_04 17:41

Let's get into I do want to get a little something about federalism. Let's talk about how federalism actually functions. So we have a written convert uh constitution, we have enumerated powers, primarily for Congress, right? They did a good job of enumerating this, listing them out in Article I. What powers are reserved to the states? Because I think this is actually an area where most people don't sort of understand this is the federal government sphere, and this is the sphere of the state governments. Most people are sort of unaware of their state government as little as they know about the national government, they know even less about their state governments, which is curious, right? Because they live in their state, and state government actually probably touches them in many instances more than federal law does. So really walk us through that relationship and then um illuminate for the audience some areas where um, you know, how the national government and the state government are in relationship with each other, are in tension at this point in our history.

SPEAKER_02 18:44

So do you want the original answer how it's all supposed to be, or do you want the answer of like today how I think we want both.

SPEAKER_04 18:51

I think I think this is the exercise that we're gonna go through tonight is is this is the Constitution of 1789. Let's also now talk about the constitution of 2026.

SPEAKER_02 19:00

I care much less about that constitution. No. Um okay. Uh so the two, I would say, biggest grants of power to Congress today, through which Congress controls substantial portions of national life, are the power over interstate commerce. And then the I don't even think this power exists. If you actually look at the text of the Constitution, so I'm loath to speak of it, but it's what people call the general welfare clause, or the power to spend for the general welfare. I don't actually think it's there in the Constitution. Uh so let me kind of unpack both. As a historical matter, commerce was just uh the power to exchange goods. So articles of commerce preceded commerce, production. So this was often called production, labor, mining, manufacturing, agriculture. These were things that preceded commerce. They were not commerce itself. Economics was not commerce. Commerce is a subset of economics. And it was understood that the states retained power over minimum wage laws if they wanted to have it, child labor laws, if they wanted to have it or not, manufacturing, production, labor, all of it preceded commerce. I do think this, the conservatives, the formalists disagree with me about this. I do think that the interstate commerce power was reserved to Congress. A lot of conservatives think that the states had a reserved power to regulate interstate commerce as long as Congress was silent. So not only could the states regulate production and manufacturing, which Congress couldn't touch, but even interstate commerce, as long as Congress didn't touch it, the states were allowed to regulate it. This is the view of many modern conservatives who just believe in more states' rights and like more flexibility. I actually think that's wrong. If you look at sort of the original structure and the original cases, the interstate commerce power was exclusive to Congress. Only Congress could exercise that power. But the states retained what was called the police power over the health, health, safety, welfare, and morals of the people. Now, sometimes these regulations could affect each other. So in exercising a quarantine law or a health law, right, the state imposes a quarantine on goods coming in from other states to make sure that they're not dise they don't have diseases, they aren't vehicles for disease. This was held to be a legitimate police power, because legitimately aimed at a health purpose, even if it affected interstate commerce. In other words, although the interstate commerce power was exclusive to Congress, I think that power was narrow, it's only the exchange of goods, and the states were allowed to affect that. Okay, well, what's happened since the New Deal? Let me just give you, since I've already talked too long, give you sort of the apex of this interpretation, is a case called Wickard against Filburn. If you need a heuristic, think Wicked Wickard versus Farmer Filburn. Okay? Wickard being the bureaucrat. So Congress. Purported to tell Filburn how much wheat he could grow on his own farm entirely within a single state for his own purposes and his own consumption. He didn't sell it anywhere, let alone across state lines. And what Congress and what the Supreme Court in upholding this quota power basically said is well, by growing his own wheat, Filburn forestalls access to the market. He lowers demand because he's not buying in the interstate market for wheat. And if everybody did that in the aggregate, that would reduce the interstate wheat prices. And so Congress, so the court basically said that the commerce power reaches even production, manufacturing, labor, anything economic that has, if enough people did it, would have an effect on interstate commerce. And it is these decisions, decisions like it, that today give Congress the power over employment within a single state. It's what gives them power over minimum wages, all the labor laws. And so a bunch of what Congress does today is as a result of this sort of ahistorical interpretation. Okay. Where does Congress get the power? Now, this is the most controversial thing I say in the book. And there are plenty of things I say in the book. In the very last chapter, so I'm hoping most people won't get there. But if you do, this is the most controversial opinion I have. I think most federal welfare spending programs are probably unconstitutional under the best original historical understanding.

SPEAKER_04 23:32

I'm going to make you walk us through the analysis of that, by the way.

SPEAKER_02 23:35

Say again?

SPEAKER_04 23:35

I'm going to make you walk through the analysis of that.

SPEAKER_02 23:38

I've got the user's manual right here. So the argument is so the clause, the provision that Congress relies on, is the so-called spending clause or the so-called general welfare clause, which says Congress has the power to pay the debts and provide for, which people interpret as spend for, the common defense and general welfare of the United States. Well, if you spend for the general welfare, Social Security is spending for the general welfare. Medicare, Medicaid is spending for the general welfare. But the most controversial thing I say in the book is that this clause is not actually a power to spend money at all. It is a power to raise money by taxation. It does not say how you are to spend it. And let me explain that very briefly. So the clause says, and I'm trying to find it, but I might have it memorized, we'll find out. Congress shall have power to lay and collect taxes, duties, emposts, and excises, comma, to pay the debts and provide for the common defense and general welfare of the United States. Semicolon, but all taxes, imports, and excises shall be uniform throughout the United States. So this all has to do with a pesky little comma. Okay? If there had been a semicolon, Congress shall have power to lay and collect taxes, duties, imposts, and excises. Semicolon. Just like it sets off every other power. To pay the debts and provide for the general welfare, then you'd have two separate powers. You'd have a power to lay and collect taxes, and you'd have a power to provide for the general welfare. Now, if there was no comma, then it would just be one power. It's the power to lay and collect taxes for certain purposes. You can't collect taxes for other purposes. You can't tax whiskey because you want to tax it to death because you don't like whiskey. You can tax it to raise revenue for the purpose of the enumerated powers, is sort of the argument that I make. But it has a comma, which leads to this ambiguity. There's an apocryphal story that the great nationalist, Governor Morris, who is the final drafter of the Constitution, the stylist, he put it in its sort of form and style, inserted a semicolon after that clause to lay and collect taxes, precisely to create the impression of two separate powers. But the ever-watchful Roger Sharman caught him in the act. And there is a one of the penultimate draft of the Constitution that you'll see is printed has the semicolon. And the final does not have the semicolon. Now, this is, you know, I mean, look, hearsay is hearsay. It's still evidence. Take it from what it's worth. But this was Albert Galatan reported that Roger Sherman told him this. So, you know, there is uh some uh layers of hearsay. There are lots of reasons supporting this single the view that it was the power to lay and collect taxes. I'll give you just like one, two, three, two. Let's stop at two. One is, remember there's that other piece of the clause there, but all duties, imposts, and excises shall be uniform. So the end of the clause is about taxation, which makes me think that the whole clause is about taxation. The other weird oddity is why would you need a power to specify to pay the debts?

unknown 26:48

Right?

SPEAKER_02 26:48

Why would they say that if that was an independent power? Why do you need an independent power to pay the debts? The very second clause of Article 1, Section 8 gives power to Congress to borrow money. Doesn't that imply already the power to pay the debts? I mean, if that didn't imply the power to pay the debts, you'd be stealing money. You wouldn't be borrowing money. The whole clause reads like just it's a power, and this was important. Why? Because under the Articles of Confederation, you could not tax the people. You had to ask the states for money. So it was really important to specify that Congress could tax the people. But here are the conditions under which it could tax them. It could only tax them for these purposes, for national purposes, for purposes of raising money that could then be spent on things like common defense, pursuant to the enumerated powers. Okay, third thing, and then I'll stop. For a long time, Congress acted as if it did not have a power to spend for the general welfare. There were Congress unsurprisingly likes to spend money. So it was tempting, which is ultimately why this view prevailed, by the way, because it was very convenient to have a power to spend for the general welfare. But early on, they had opportunities to spend for the general welfare, and they debated, and they really bent over backwards to try to find a different enumerated power to work with. So when Santo Domingo, I think it uh, I don't remember if it was the revolution, it was before the revolution. Um this is what would become Haiti in the Dominican Republic. I think there was like a hurricane and they wanted to send relief, disaster relief. Well, where does Congress get the power to give disaster relief? To Santo Domingo. It's not in any of the enumerated powers. And some people said, oh, well, can we spend for the general welfare? And Madison and others said, no, that's not what this is about. It's about raising taxes. But they really wanted to give money to Santo Domingo. So how did they do it? They said, well, let's call it repayment of our debt to France that we owe for the Revolutionary War. Right? So they really twisted themselves into pretzels to avoid the implication that there's a power to spend for the general welfare. Is there contrary evidence? Yes. Alexander Hamilton. I think he's right about a lot, but he's wrong about executive power, and he's wrong about this. So there is counter evidence.

SPEAKER_04 29:05

I do want to get into uh the significance of a semicolon versus a comma, but I also want to move on uh to separation of powers.

SPEAKER_02 29:13

You're not equally riveted by this linguistic analysis.

SPEAKER_04 29:17

Um so in addition to dividing uh power vertically, states, national government, um sorry, we should do that the other way, states, national government. I don't want to uh suggest one is above the other except one is because of the supremacy clause. Um they also divide things horizontally. Um so amongst the the three branches of government. Why was separating power so central to the framers' understanding of liberty, and I think that that structure feels blurrier today than maybe it did in 1789. Or at least has as it was written in 1787 and ratified and put into effect in 1789.

SPEAKER_02 30:00

So I guess in the first thing I want to say about the separation of powers is it's obviously true that they wanted to separate power to better preserve liberty, right? That's almost hackneyed, right? Like uh they thought that the combination of powers, legislative, executive, judicial, and single hands was the very definition of tyranny. But if you go to the exhibit behind us to the side, or that that way, the new exhibit, you'll see a little plaque that I think I helped uh write uh at one point, which says, but actually they were also motivated by something else. They wanted government to function well. It wasn't just about stopping government, it was a little bit about that. It was about constraining government. But they actually separated power so that each function of government could be exercised well. And the way they did this was by structuring the different institutions in different ways to accomplish that, to accommodate the different types of power. So legislative power, the power to alter legal rights and relations, to impose prohibitions, to tell people what they can and can't do, to tell them what their rights are. And, you know, all legislation could help one side of the community more than another. There's often gonna be some winners and some losers. Hopefully we could all be winners, but it doesn't always work like that. And so you just create a deliberative body where you have representatives who represent different interests, geographic interests, mercantile interests, religious interests, a whole diversity of interests that they have to get together and they have to deliberate. And then you have a United States Senate that at the time, less today, but at the time, represents the interests of the states. And then you have the president who has a say in the legislative process, who has a more national perspective, each of them, by the way, for different terms: two years, four years, six years, different constituencies, different lengths of office. All of these have to coincide before you can enact national legislation. And the idea was that this would conduce to good legislation. Well, if you want to give the president two principal powers: the power to vigorously execute the laws and the power to engage in war when necessary, either called upon by Congress or to repel sudden invasion, well, you aren't gonna do that by committee.

unknown 32:09

Right?

SPEAKER_02 32:09

They tried that under the Articles of the Confederation. So you wanted a unitary executive. A single executive who could exercise, in my view, its limited powers, vigorously, secretly, energetically. And then what about courts? Well, courts adjudicate disputes under existing law. They don't make new law. They're not supposed to. I'm still on 1789, right? I mean, there's still some question as to how much law they were making. But the theory is they adjudicate disputes under existing law. You want them to be free of political influence. So you create lifetime tenure and salary protections. You insulate them from political control. This way, courts, judges would judge well. The president, the executive would execute well, Congress, the legislature would legislate well. It wasn't just to you know stop the wheels of government from turning all together. It was partly, of course, to prevent tyranny, but it was also to conduce to this uh to this function proper functioning of government. Did that answer the question? It did.

SPEAKER_04 33:14

I want to get into um some of the specifics though.

SPEAKER_02 33:17

So um your I grew up, by the way, when George W. My formative years, presidential election watching, was George W. Bush versus uh John Kerry and others. And so I just got very good at answering the questions that I want to answer. Because like George W. Bush was the model of the question.

SPEAKER_04 33:33

This is the talent we see. So just don't worry about it. But I but I do, you do um in your scholarship um extensively explore executive power. And I do want to talk a little bit about helping our audience um really understand the president's authority over things like foreign affairs, military action, national security. Where does the constitution, the text, speak clearly? And where do, and I know that you love to talk about this, and where have uh thoughtful constitutional scholars of different perspectives reached different conclusions?

SPEAKER_02 34:11

This is excellent because everybody thinks I'm wrong about this. But I'm right, so it shows you that thoughtful constitutional scholars can disagree. Um so, okay, so let me say a few things. Let me say about something about the executive power itself. Literally everyone disagrees with me, I think, about this. The progressives disagree with me about this, the conservatives, both things that I'm about to say. The first thing is just about the meaning of executive power. There's a debate over how much power this vests the president. Why is there a debate? Well, because Congress's vesting clause says all legislative powers herein granted shall be vested in a Congress, which shall be composed of a Senate and House or House of Representatives and a Senate. Or maybe Silar Red. But the executive power vesting clause simply says the executive power shall be vested in a president of the United States of America. It doesn't say all executive powers herein granted, it just says the executive power. So some originalists say, oh, this must mean all executive power. All power executive in nature is vested in the president. But this is weird because then there are other parts of Article II that give additional powers. Like the commander-in-chief power is specified. The power to pardon is specified. Now they'll say, these what I call these residual theorists, they'll say, oh, those are limitations on power the president would otherwise have. Okay, the point I'm trying to make here, so that's one side of the debate. This is a reservoir, a residuum of executive power. I already mentioned that Congress gets a lot of historically royal prerogative powers. So this view says if the Constitution doesn't limit or otherwise take the power away from the president, if it's executive, it's residually vested in the vesting clause. It's this residual. Other academics, this is probably the conventional view, say that the executive power clause doesn't grant any power at all. It simply says there shall be a president, and all the president's power must come from elsewhere in Article II, like the commander-in-chief power, or the pardon power, or the power to convene the legislature on extraordinary occasions. I think the answer is that the power to execute the power the executive power is a power. It is a substantive grant of power, but only a single power. It is the power to execute law. That's it. It's not a royal residuum of power, right? It is simply the power to execute law. Now, this has interesting implications for appointment and removal and so on, but it also, so okay, so that's sort of one debate. I didn't really, I set up the debate, I didn't tell you why I'm right about it, but I'm right about it. Just, you know, I gotta give you some reason to buy the book, okay? So I'm right about that, even though most people think I'm wrong about that. But let me now connect it to foreign affairs and war. The mystery here is that the left and the right agree that the Constitution is laconic in foreign affairs. That's what they say. It's laconic. Where are all the foreign affairs power? Where's the power to enter into executive agreements? Where's the power to recognize foreign governments? Where's the power to m set foreign policy, to manage relations, to instruct ambassadors? So the residual theorists say, well, these all must be residually vested in the president through this residuum of executive power. The progressives tend to say, look, it is laconic, and so it's up to Congress and the President to fight over this. And over time you get this historical gloss and historical accretion and maybe some liquidation of practice, and it's just a tug of war between Congress and the President. I think both of these views are preposterous. You can see them very popular in the faculty lounge. But you know, preposterous in a nice way. So let me explain what I think, two moves that I make in the book that I think explains a lot of this. The first is that actually, when you look at Blackstone, going back to the royal prerogative powers, William Blackstone, very influential on the framers, described only a handful of foreign affairs powers. All of them show up in the Constitution. The principal foreign affairs powers was treaty making, appointing ambassadors, sending ambassadors, and like war and peace, which they gave to Congress, so Congress got some of these foreign affairs powers, and receiving ambassadors, which the president does get. Okay, so excuse me, all these powers are missing. Who gets the power to manage relations with foreign nations, which is literally a claim people make. Doesn't the power of treaty making imply the power to treat with foreign nations? Like, I don't know, maybe I'm being a little too adventurous, but it seems to me that all interactions with foreign powers could be interactions precedent to the making of a treaty. You're treating, you're treating with them. To make treaties, you need to treat. Also, the power to appoint ambassadors. What do ambassadors do, if not manage relations? So actually I find this super weird to say that a lot of these powers are missing. Now I left off some big ones. What about executive agreements? What about power to recognize for government? Well, the most controversial thing I say in this context of Social Security is unconstitutional, under the best original meaning. Okay, I'm not saying it's outside the range of possible meanings. Um, but I think a lot of what presidents do is not actually an exercise of power in any strict sense. So let me give you an example. Where did President Monroe get the power to issue the Monroe Doctrine and to establish that policy that we will oppose European interference in Latin America in this hemisphere? I don't think that's a power at all. He's just bloviating. If Europe tried to interfere in South America, could Monroe send troops on his own? Under the modern LLC, maybe uh Office of Legal Council opinions, maybe. But under the original meaning of the Constitution, of course not. Congress would select to do that. If the could the president abrogate treaties with European powers on his own, today people say he could, that's that's preposterous. I don't think that's historically true. It's up to Congress to regulate foreign commerce, enter into foreign uh trade agreements with these foreign nations to declare war. Monroe had no independent constitutional power to do anything about the Monroe Doctrine without other constitutional actors. Okay? The same thing with the neutrality proclamation. President Washington declared neutrality. Did you know that when the neutrality prosecutions of Gideon Henfield and others came up, not a single judge mentioned the neutrality proclamation. Not a single one. Actually, there was one judge who mentioned the neutrality proclamation, and he said, I can't look at that. I'm a judge. I can't. The executive can't tell me by proclamation what the law is. I will interpret the treaties and the law of nations for myself. And that's what they all did. So I think executive agreements are also an example of this. Let me give you an early executive agreement between Spain and the United States during Jefferson's presidency. They uh Jefferson, there was disputed territory in the Louisiana Purchase Territory, and Jefferson uh agreed with Spain to withdraw troops from the Red River territory. This was an executive agreement. It might be one of the first executive agreements. Where did he get power to do that? Well, he was commander-in-chief. He could unilaterally have done it. The fact that he got Spain to promise to do it too is irrelevant. The Obama nuclear agreement. Everyone says, Oh, where did he get power to do that? Congress delegated him power over sanctions. And President Obama said, if Iran, you promise X, Y, and Z, I'll do A, B, and C with my sanctions power that Congress gave me. A lot of these powers that are supposedly missing are actually not powers at all. I think Congress has some power over the relevant question. Recognition is another example, as I already hinted. The president could recognize a foreign government by accepting an ambassador. Congress could recognize a foreign government by taxing its imports at a certain rate. Different constitutional actors can have opinions about various things, including in the foreign affairs space. It doesn't mean this power is missing in any relevant sense. For whatever reason, this gets other scholars very upset, especially scholars in the foreign affairs space. And I don't understand quite why it does. It all seems obvious to me, but I've drank my own Kool-Aid, of course.

SPEAKER_04 42:29

I want to talk a little bit more about executive power, but I'm gonna guess that we might have some audience questions related to that. So I also want to talk about Sorry, I've been really going long, huh? That's okay. Judicial power. So your book presents a more nuanced story than I think the typical story that's told, which is judicial review begins and ends with Marbury v. Madison. What did the framers understand the judicial role to be, and where do constitutional scholars continue to disagree about the proper role of the U.S. Supreme Court in our constitutional system?

SPEAKER_02 43:00

I've got about 30 minutes on this one, is that okay?

SPEAKER_04 43:02

You've got about uh 10 minutes. Okay.

SPEAKER_02 43:06

I don't know you might have more questions, but that's uh okay. You know all I I I just really want to say this. So again, an excuse to talk about what I want to talk about, and then I promise it'll it'll connect to judicial review. This all has to do with why we fought the American Revolution. You probably think I'm crazy. Why was the American Revolution fought? It was all about constitutional law. Okay, now I should warn you, I'm a professor of constitutional law, so of course I'm gonna think the American Revolution was about constitutional law. You ask a historian of like colonialism, they'll say it's because uh Great Britain was um preventing Western expansion beyond the appellation, like maybe. You ask an economic historian, and they'll say it's because glass became too expensive, or the stamp text or whatever, but it really was about the Constitution. And here's what I mean. So in 1770, You had a clash of two competing conceptions of constitutionalism. Both were unwritten. The American colonists still sort of adhered to this 17th-century English view. Why did King Charles lose his head? Because he engaged in prerogative taxation, the ship money, the forced loans, because he violated the rate of habeas corpus. Where was it written down, right, that he couldn't do these things? Well, these were constitutional principles rooted in immemorial custom. Occasionally they were written down, some of them, in some contexts, like Magna Carta, various statutes of Edward III, the Petition of Right, right, the Bills of Right in 1689, but the principles didn't come from the text. James was deposed before the Bill of the Glorious Revolution, right? King Charles I was executed before the Bill of Rights was written, right, in 1689, and so on. So these came from immemorial custom. Well, after Parliament's victory over the royal prerogative, the monarchy, in 1689, a new conception of constitutionalism emerged, also unwritten. According to this conception, the British Parliament was supreme. There's no superintending written constitution anywhere, right? So Britain, so the British Parliament was the ultimate arbiter of its scope of its own powers, the scope of the rights of Englishmen or what have you. There was no superintendent controlling power. Well, what happens when the British Parliament, which thinks it's supreme and sovereign, starts enacting legislation in America that the Americans think violate the unwritten constitutional principles of time immemorial, like imposing taxes without representation in the colonial assemblies? You get the American Revolution. It was an irreconcilable conflict between these two competing unwritten constitutions. Well, how do you solve this problem? What, well, after you win the war, how do you solve that problem? Well, you take those principles that you think are deeply rooted in time immemorial and natural right and the rights of Englishmen and that your ancestors had fought for a millennium for, and you reduce them to writing. You write them down in a written constitution, and you make that written constitution, you adopt it by some power that's antecedent to and superior to the ordinary legislative power, the people. And the implication of this is that that written constitution is now binding on the legislature. No more is parliament, the legislature, Congress, the final and supreme arbiter of its own powers. How does this connect to judicial review? Well, judicial power was just the power to decide cases under existing law. That law could come from any number of places. It could be state law, it could be federal statute, it could be common law, it could be general law, it could be international law, it could be corporate bylaws. Nothing inherently says that judicial power includes the power to review federal legislation for consistency with the Constitution. Judicial review is not the same thing as judicial power. Judicial review says when you're engaging in judicial power, you give precedence to one source of law over another. So let me just, namely the Constitution over federal statutes. John Marshall, this is maybe the most fun chapter in the book, where I explain how Chief Justice John Marshall was wrong about 98.5% of what he said in Marbury v. Madison. He was wrong about, you know, the commission not having to be delivered. That's preposterous. He interpreted the Judiciary Act of 1789 incorrectly. He probably even interpreted the Constitution incorrectly. Anyway, but he created this conflict between a statute and the Constitution. And then he also came up with a bunch of wrong reasons for why the courts had to go with the Constitution over the contrary statute, including the Supremacy Clause, which Julie mentioned at the very beginning. The Supremacy Clause, which is what most people think is the source of judicial review, that's very awkward because it only applies to judges in the states. So does that mean the Supreme Court, which sits in the District of Columbia, can't exercise judicial review? I mean, it's a preemption clause. What's the actual answer? Usually this is a talk I give, it takes 30 minutes, but I'm you really, I think I did pretty well. This is why they're gonna buy the books that they're gonna be able to do. Wait, I gotta give you something. The answer is the conflict of laws, which I'll explain in right now, and the American Revolution. The conflict of laws is simply this idea that judges who have to decide cases under existing law sometimes are confronted with multiple sources of law. What happens when you have a statute enacted at time T1 that says do X, and you have a statute enacted at time T2 that says do not X? That's a conflict of laws. You have two laws. And reason tells us you go with the one enacted later in time. If you have two Mississippi residents who you know come, you know, get into a fight in Alabama and then they sue each other in Mississippi, does Alabama law apply? Does Mississippi law apply? During the Civil War, when the courts in Illinois were open, does the civilian law apply or does martial law apply? This is a conflict of laws question. Judicial review is a conflict of laws question. You have two laws. You have a federal statute that says do X, and you have the Constitution that says do not X. It's a conflict of laws problem. And just as with any other conflict of laws problem, you have to have some rule for resolving it. It's not written anywhere. Well, what's the rule for resolving this conflict? What's the reason we fought the American Revolution? We fought the American Revolution precisely so that the legislature would not be the supreme and final arbiter of the scope of its own powers. And so the American Revolution tells us the answer to this conflict, and it says the Constitution is supreme. But that doesn't mean judges have the final say over the Constitution. It does mean they have final say in that case or controversy that they're adjudicating, which is very different. And that goes into the whole, like, what happens when the Supreme Court messes up, and I have a whole chapter on slavery and Dred Scott and how the Supreme Court totally messed that up. And Lincoln's response to the court was basically like, okay, last thing. I mean, how did I do?

SPEAKER_04 50:09

That was only We have some really wonderful audience questions that I do want to get to.

SPEAKER_02 50:13

Basically, Stephen in Lincoln Douglas debate, Lincoln said, I want to reverse the Dred Scott decision. And Stephen Douglas, Judge Douglas, sounds like a modern liberal. He says Lincoln wants to reverse the Dred Scott decision. By which tribunal will he reverse it? Will he appeal to Lynch's law? Will he appeal to the mob? And Lincoln said, nobody is seeking to disturb the judgment in Dred Scott against Sanford. No one is going to spring Dred Scott free from the clutches of his master. It doesn't mean we have to follow the ruling, the reasoning of it in other cases. Like when I, you know, so the U.S. Senate, and then I'll stop, had to decide in 1870 whether it could seat the first African-American United States Senator, Hiram Revels, appointed by the Reconstructed Mississippi legislature in 1870. What's the problem? To be a senator, you must have been nine years a citizen of the United States. Well, if Dred Scott was rightly decided, Dred Scott said free people, even free people of African descent were not citizens of the United States and never had been citizens of the United States. If that was the supreme law of the land, if the Supreme Court had the final say on what the Constitution meant, that meant Hiram Revels had only been a U.S. citizen for two years since the 14th Amendment was adopted and ratified in 1868. The Senate ceded him anyway. They said Dred Scott was wrong, and we are not bound by the decision in Dred Scott against Sanford in any case other than Dred Scott against Sanford. And so they ceded him anyway. Very different than the modern conception that the Supreme Court has of its own powers.

SPEAKER_04 51:47

One of the things that I most appreciate about you as a scholar and the book is that you don't pretend that every constitutional question has a single uncontested answer. And I did promise you, um, if we got a birthright citizenship question, which we did, we have a good one, two-part question. I would I would ask it uh to you. Um I I want you to answer this one though, because there's obviously a great amount of debate about this. We just had a Supreme Court uh decision where the court was not unanimous uh in its uh decision. Um and so I I want you to answer this question with an eye towards why understanding the disagreements between and amongst scholars and jurists on the issue of birthright citizenship actually deepens our understanding of the constitution. Because we profoundly believe that here at the National Constitution Center, that understanding these arguments is really important to understanding the Constitution. And so um this particular question is about um your uh in your brief, your domicile theory of the 14th Amendment, and it has a question that this is what it says Can illegal immigrants who have long lived in the US establish a domicile as Justice Gorsuch seems to suggest um in his opinion? And so, in answering this question, your view, your theory, but also draw out for us other theories that really help us better understand this dimension of the 14th Amendment.

SPEAKER_02 53:22

Yeah. Okay. Already an interesting question, made even more interesting and difficult for your uh intervention on disagreement and how it enriches sort of our understanding. Uh so let me briefly preview um the various options on the table, from sort of the narrowest to the broadest, because I think all of them do enrich us in some way, our understanding at least, of like where law comes from and what informs law. Justice Kavanaugh had the narrowest view. Now, to be fair to Kavanaugh, it was obvious he was very annoyed that he even had to say anything about this, because he wanted to rule in favor of the plaintiffs on statutory grounds. Um, but he ended up, obviously the majority didn't go that way, so his view was that your citizens had to be apparent. This was the European view, this was the continental view, this was the anti-common law view, this was the view in most developed nations uh in the world. It was probably the answer under the law of nations. And that's interesting. I think it's wrong. I just think there's too much evidence. You just can't ignore it. There's so there's an overwhelming amount of evidence that suggests that they thought the children of aliens could become citizens by birth. And so there's just there's just too much contrary to that, but it enriches our understanding because the law of nations is relevant here, because the way other civilized developed nations have done things in the 1800s and 1700s was relevant to the way they thought about law and the law of nations. Uh, Justice Alito had a slightly broader view. He basically thought that the uh birthright citizenship clause constitutionalized the Civil Rights Act of 1866. And it's true that it had to do that because everyone said that the language was a clarification. The language in the 14th Amendment was a clarification of the Civil Rights Act. They Congress reenacted the Civil Rights Act in 1870. And the language of the Civil Rights Act is anybody born in the United States not subject to any foreign power. I happen to think this is ambiguous, by the way. You know, like could that just be ambassadors? It could just be ambassadors who are subject to foreign powers. It doesn't say subjects of foreign powers. It said subject to foreign powers. So it's ambiguous. I think it's ambiguous. But Justice Alito's view uh was okay, if Mexico treats a child born in the United States of Mexican parents as a Mexican national, someone who has obligations of citizenship in Mexico, they're out because they're subject to a foreign power. So slightly broader than the Kavanaugh, only citizens' view. Your parents had to be citizens, uh, but uh still pretty narrow. And I don't know if it's right. I don't know if it's right. The principal descent, Gorsuch and Thomas, um, Thomas and Gorsuch, uh, said that aliens could be covered if they were domiciled in the United States. This is the closest to my view. It's not clo so let's let me bracket that and then say what the uh majority said. So domicile would include, exclude temporary visitors, it would exclude the children born of temporary visitors, and it might exclude the children born of unlawfully present aliens, depending on whether they could establish a domicile on their own, which is the question. So let me bracket this for a moment. And the majority view was the broadest, which basically said anybody born on United States territory, subject to the three common law exceptions. And that's it. Closed set ambassadors, invading soldiers, and the Indian tribes. That's it. So it was a closed set. So s so that's the broadest sort of view. Since that's what most people believe, I'll just tell you why I think Thomas and Gorsuch were mostly right. But I would have framed it uh a bit differently. And I am a dissenting view in the Academy about this. So a bunch of people think I'm wrong about this. I've gotten a bunch of grief about this over the last uh year and a half. But let me just make the uh 90-second pitch here. The question is, how do you connect all the data? Okay, it says, the the clause says subject to the jurisdiction. That's the clause we're interpreting. Who is subject to the jurisdiction of the United States at the time of their birth? The problem with the test that the majority has, subject to US law, is that the Indian tribes are subject to US law. The General Crimes Act of 1817, the Trade and Intercourse Act of 1834 said all federal criminal laws now enforced in places exclusive over which the federal government has exclusive jurisdiction shall apply in Indian country. Provided that it doesn't apply to crimes committed by one Indian against another Indian. But so, in other words, were the Indian tribes not subject to U.S. jurisdiction? They were. They were. But they were not subject to a complete jurisdiction. And this is what they told us when they were asked about the Indian tribes in the legislative debates. They said, What do you mean they are subject to the jurisdiction? And they said they're not subject to a complete jurisdiction. We regulate them to some degree, but we don't regulate their contract rights and their property rights among themselves. We don't punish one crime against another. Why is this important? Because this theory of complete jurisdiction, a complete legislative, executive, and judicial jurisdiction, explains all the historical exemptions better than I think the majority does. It explains ambassadors who are not subject to any U.S. jurisdiction, really. It can be waived, so even then there's some degree of jurisdiction. Foreign invading soldiers are subject, POWs are subject to some degree to U.S. jurisdiction. But it's not really a complete jurisdiction, it's really the law of nations, it's really martial law, the laws of war sort of govern the situation. The Indian tribes were subject to some degree of U.S. jurisdiction, more than foreign soldiers, more than ambassadors, but it was not a complete jurisdiction, and they told us. And so then the question becomes: is domicile relevant for other aliens? And it turns out, for example, that the Union military authorities debated in the Civil War whether they could conscript children born in Louisiana to French parents. And they said, only if the parents were domiciled. And when you think about it, this makes sense. Would it be constitutional, proper, under the law of nations, to conscript into a military just people from a foreign country temporarily visiting in your country? I mean, in a way, it seems preposterous. Of course, you exercise less jurisdiction over temporary visitors. Courts exercise a general personal jurisdiction, that's a technical term, over anyone domiciled in their territory. Alien or non-alien. It doesn't apply to temporary visitors. There are ways in which temporary visitors are not subject to this complete jurisdiction. And that's why I think the domicile test is a sub-test as applied to non-Indians, non-foreign invading soldiers, non-ambassadors, right? That applies to aliens present in the United States. Okay? There's counterevidence. There's lots of counterevidence. And I hope that I've been open about that in my writing, by the way. I've never said all the evidence, you know, goes all in one favor. Can someone here who's been here 40 years but unlawfully create a domicile, even if you assume the Gorsuch-Thomas view is correct? There's very little cases on this. I will say, to further enrich our sources of understanding, the Roman jurists did address this. Domicile actually comes from Roman law, including the Code of Justinian. And domicile, the general view is you have to be, you have to have a place of permanent sort of abode, like the place where you live regularly, and you must have an intent to remain. Can you create that intent if you're there contrary to the sovereign's consent? And the Roman writers on the Code of Justinian, so in the digest, they said you couldn't. They said it required the sovereign's consent. But that was a long time ago. That was a long time ago. And there aren't many 1800 sources on this question. So I don't know the answer to it. I actually don't know the answer to that. And Gorsuch said, I I have questions and I reserve this for another day, which is also what Thomas said. So I hope, despite probably viscerally disagreeing with me about that, uh, the rate I tried to give like the range of possible views here and why they all in some way add uh to our understanding of how law works and where it comes from.

SPEAKER_04 1:01:15

And it certainly helps us understand how to interpret what the court just decided. So I really appreciate that. There are some really wonderful questions in here, and we are quite simply out of time, but Elon is uh going to be uh signing books, and so for those of you who submitted really wonderful questions, and I see one on compound federalism, um on uh let's see, on the uh constitutionality of the Louisiana Purchase, um, and um and on the pardon power, these are really wonderful questions, and so I do hope folks will go and get their book signed and you can ask your question to Alum directly. Um, because um I get a lot of audience questions, and these are among the best I've gotten. We just quite simply ran out of time. But please join me in thanking Alum and please join us in afterwards for book signing.

SPEAKER_02 1:02:03

Sorry to filibuster comes with the territory. And you don't have to read the book, but I sure would appreciate it if you bought one.