An introduction to basic techniques of constitutional interpretation.
Envisioning the Future, Part 2
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Del curso dictado por Yale University
America's Unwritten Constitution
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Envisioning the Future
In the course’s final lectures, we’ll look to the future and ask, "what will the constitution look like in 25 years? 50 years? 100?" Might we soon see an amendment allowing for a foreign born president? Or the dissolution of the Electoral College? Prof. Amar will discuss the idea of "constitutional trajectory," and the factors which affect it. We’ll go over how today’s legislators can be looked at as "framers of the future.” Which will lead to the very interesting topic of “sunrise legislation."
Conoce a los instructores
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
[BLANK_AUDIO]
Well, we've made it to our last
lecture of the second book, America's Unwritten Constitution.
I'm going to have one wrap up lecture for the course as a whole but let's before we
get to the course as a whole, let's just
continue our conversation about the constitution of the future.
About the constitution still to be written.
What, what should the 20 8th amendment look like?
And the 29th?
And what will these amendments look like, if we're trying to make predictions?
And my claim is that in America, ours is a fundamental,
Federal system, in which states, road test all sorts of ideas,
that's in the Federal Constitution, sort of emulates.
It, it sits atop these state laboratories of experimentation.
We've identified
ten fundamental ways in which the U.S. constitutional
systems, the American systems, all 51, state constitutions and
the federal, are very similar to each other and
differ from at least one major foreign constitutional democracy.
Great Britain, or Italy, or France, or
Germany, or Israel, or Australia, or India,
but what's really amazing is, within each of the similarities we've indetified.
There's also a difference between state practice and the federal practice.
And so this creates a set of interesting questions.
Should states change their way of doing things?
Should the federal government change their way of doing things?
Or is it just right as is because actually on some things
you want the federal and the state constitutions to diverge a bit.
So, what was the first similarity? You have 51 written
constitutions that all emerged from some special expression of popular sovereignty.
And that's not true in England or in, in, in Israel.
But here's the difference, state constitutions generally are much longer
and much easier to amend than the federal constitution, so that raises the question.
And in many state constitutions by the way, when
you amend the constitution, you don't add an amendment to
the end, you just reword-process the document.
You sort of, rewrite the initial document.
But the big question is, should the federal constitution
be easier to amend, to look more like the states.
Should state constitutions to be harder to amend, to look more like the fed, or
are we already in, in sort of in a Goldilocks's world where we're just right.
Well, I used to think was a young man, and that's the question, and we
can debate that, and so we, but we now have a good issue to focus
on where we see the difference, between state constitutions and the federal.
Now, when I was a young guy, I
said, gee federal constitution's too difficult to amend,
they're all you know, things could be so
much better, lots of good proposals are getting dinged.
Now that Ii am older I think, yea, it could be
a lot better, but you know, it could be a lot worse.
And there were a bunch of bad proposals in my life time to
criminalize flag burning and to constitutionalize
you know, one man one woman marriage,
all sorts of stuff, and they didn't pass, so yes, the bar is raised pretty high.
But isnt it interesting.
Almost all the bad proposals have failed.
The amendments that have cleared the bar interesting, almost
all of them have added to liberty and equality.
They've actually improved our system.
Our amendments have made amends. Pretty impressive.
I don't think I can say that about state constitutions.
State constitutions are easy to amend.
They've had some good amendments, lots of bad amendments too, and they've
gone back and forth.
The federal Constitutional system has been a little bit steadier.
One genuinely failed amendment, Prohibition, and the system was flexible
enough to actually get rid of it, when it, it proved itself to be, sub-optimal.
The twenty first amendment repealed the eighteenth.
But, but, it, with the benefit, of, of, of more study, of
the matter this actually seems to me pretty impre, I now think.
That it is pretty impressive that the amendments
have generally improved things at the Federal level.
Here's a story about maybe why it's just right as is.
So, you might say oh, should state constitutions therefore be harder to amend
on the Federal model, maybe we're in a world of that's just right.
The federal constitution, which is pretty hard to amend
creates a very stable framework with a safety net above
beneath all the states.
They can't go below federal standards of
republican government and and privileges and immunities.
So we've got a secure hard to amend, federal safety net, and above that
states can actually experiment pretty easily and
generate all sorts of interesting reform ideas.
And if state constitutions were too hard to amend, then maybe we'd have less
experimentation and which experimentation is useful for sister states to
possibly copy, and eventually, for the Federal Government to consider.
So maybe we actually have the best of all possible worlds.
A stable, Federal Constitution, and, a
more fluid, State Constitution laboratories experimentation.
At least, wouldn't that be nice if that were so.
Again, I'm not so much insisting that you agree, or disagree.
But these are the questions I want you to think
about when you look at all 51 constitutions, state and federal.
State bills of rights, very similar to the
federal Bill of Rights, but state bills, and a
lot of overlap of substance, they all talk about
free speech, free press, free exercise, and so on.
But state constitutions
sometimes have a more affirmative
rights in them, rights of education and, and, and positive social rights.
And so we could ask, well
has that state experiments guaranteeing affirmative rights,
like public education, been a great
success that the federal Constitution should copy?
Has it been a failure?
If the federal Constitution should copy
state constitutions in protecting more affirmative
rights like education, should that be done by reinterpreting the existing
federal Constitution or by adding a
form of constitutional amendment on [INAUDIBLE].
third.
A lot of states have term limits for legislatures.
Federal constitution doesn't. Are terms limits a good idea?
Should the federal government go with term limits?
Should states abandon them?
Here's very interesting.
We can actually compare states with term limits to states without.
And, and see, you know, which might be.
The, the, the better, some states
have initiative and, and referendum, and recall.
The federal constitution doesn't have these.
So have these experiences been at the state level, been happy ones?
Were they a federal emulation, or maybe not so much.
How about here's a big difference, yes, states
have bicameral legislation but their upper houses are proportionate.
They're not mal apportion.
They are based on population.
No state has a state senate in which unequally populous counties
have the same number of seats, unlike the US Senate, with unequally populous states.
Wyoming and
California, have the same number of states seats, two apiece.
So Reynolds versus Sims, this Warren court case that we talked about, imposed
a one person, one vote proportionality idea
on both houses of the state legislature.
[UNKNOWN] Is, is that something the federal Constitution should emulate?
And if it should, how would we ever get there?
Why would Wyoming ever agree to a federal Constitutional
amendment that gave California way more seats than Wyoming?
going to come back to that question.
If term limits are a good idea.
Why would current federal Congress people ever agree
to a federal amendment with federal term limits?
So, so one of the ideas is, even if you've identified an interesting
reform possibility how would you actually ever get there if some of these reforms
might be contrary to the interests of current institutions
and actors who could, could block possible reforms in.
And we come back to that at the very end.
Note that each state basically picks its, they, their, they have,
each state has a governor who looks like a mini president.
Typically a four year term, except in, I think, in
New Hampshire and Vermont, and veto pen and pardon pen.
But note that states directly elect their Governors, we don't do that for the,
the US President, here's another possible sort
of reform idea that we talked about before.
A directly elected President would make Presidents look like Governors.
It's not a foreign idea, it's not
like proportional representation or a multi-party system.
These might be good ideas.
These might not be good
ideas, proportional representation, multiply system.
But they're not American ideas.
Directly electing your chief executive, one person, one vote, is an American idea.
It's how every state does it.
That's why electoral college reform is kind of plausible to imagine.
It's just because deeply, intuitively you, you see how states do it,
and they're picking people who look like presidents who often run for presidents.
Now Bill Clinton or Jimmy Carter or or Mitt Romney or
Mike Dukakis or George W Bush Ronald Reagan.
Governors become presidents.
As governors, they look like presidents,
and they're not picked by electoral colleges.
So that's a possible reform. The idea that governors don't have to be
natural born citizens that suggests this
other possible federal reform, that natural
born naturalized citizens maybe should be eligible one day to the presidency.
[COUGH] [COUGH] now We talked about how lieutenant governors look a lot like vice
presidents but in many states you can
vote separately for governor and lieutenant governor.
But ordinarily you can't split your
ticket between president and vice president.
So should that be a possible reform.
[COUGH] Unlike the US Supreme Court, a lot of state supreme courts actually
are, even though we have judicial review, that, that looks very similar between
the state and the federal system and, and state courts enforce state constitutions
in a way similar to the way the, the US Court courts enforce
the US Constitution, but some state courts
can issue what are called advisory opinions.
They can hear lawsuits even before the law goes into effect.
Massachusetts has a system of some advisory opinions.
Some other states do.
Should the U.S. court system, in particular the Supreme Court, be
more open to the idea, should, should it had an advisory
opinion system?
And if so, should we get there by a formal constitutional amendment
of the federal system, or by
reinterpretation of the words of article three?
What about,
judicial tenure, no state except Rhode Island, has a system of life tenure.
So should the states actually move to the federal model.
Should the federal model move to the states.
Maybe actually both have gotten it wrong.
In a lot of states the judicial selection is perhaps
too political, with people running for judicial office in partisan elections.
They call themselves Democrats or Republicans,
generally with lots of money being spent.
Maybe that's an okay way to pick legislators but not judges,
because judges should be evaluated about whether they are interpreting
the law, and that is a hard thing for voters to
know, unless they know a lot about the lawsuits themselves,
and it's very hard to, that ordinary voters could do that.
So maybe the states aren't picking judges the right way, but maybe
life tenure isn't the right way of doing things at the federal [INAUDIBLE].
Maybe we should actually have some sort of hybrid.
18 years, for example to, of, of service, and, and
maybe, and, and, and then, if you're a Supreme Court justice,
you after 18 years you, you sit on some other Federal
court or something rather than being on the Supreme Court for,
for life.
so, but the fact that no state emulates, except Rhode Island and the
life tenure model of article three suggests that that's a possible area of
a future reform and that wouldn't look un-American to say move from life
tenure to an 18 year term or 15 year term in some states.
Some states have mandatory retirement to judges at certain ages 70 or 75.
[COUGH]
now.
[COUGH] Excuse me, State Constitutions, when
the State Supreme Court constitutes the
State Constitution and the people don't like it, that's easier to overturn
and then the Federal Constitution level where the US Supreme Court interprets
the US Constitution and people don't like it, it's harder to overturn that.
So this is a reminder perhaps that Courts themselves,
US Supreme Court should be particularly open to rethinking
erroneous Presidents because it's so hard for the people themselves to overturn an
erroneous president. [COUGH]
we talked about how a lot of how the states have a jury system,
just like the, the federal constitution has a jury system,
but in a lot of states the jury doesn't need
to be unanimous or at least in some states it doesn't.
Should that be a model for, for federal emulation?
We talked about that and whether we should
insist on jury unanimity on the criminal side.
Bunch of states do not have grand juries that are required
in order to commence a criminal prosecution for a serious offense.
Should, if grand jury's such a good idea, why shouldn't all the states adopt it?
And if actually the states shouldn't
all adopt it because it's not such a good idea.
Should we stick with it at the federal level.
So, a series of interesting reform questions
as a, an agenda for future scholarly research,
and for public comment, and, and conversation,
when we carefully compare the 50 state constitutions.
To the Federal Constitution. Now here's what I want to end with.
Some of the reform ideas that we're
think, we're thinking about are not necessarily in
the interest of, of current powerful institutions that
might have the ability to lock these [INAUDIBLE].
Suppose you thought term limits actually was a good idea.
States have done it very well.
And we should have that at the federal level or we should have recall elections.
You think they've worked well at the state level, but but and you'd like to see
at the federal level. But would Congress do this?
Make their own offices less secure through
term limits or through the possibility of recall.
Suppose you think that actually the US Senate is mal-apportioned, that States are
better cause their upper houses aren't
mal-apportioned, but why would Wyoming ever agree.
To an amendment that, that changed the rules of US senate apportionment.
So aren't we just and
in particular, when it comes to the senate
mal apportionment, doesn't every state have to agree.
Because there's a rule in the constitution that no state can be
deprived of it's equal seats in the senate without it's own consent.
Doesn't that require every single state to agree.
[COUGH] Well in fact that's not the problem in the senate.
Because you can have the [COUGH] a,
a twenty-eighth amendment that reads as follows.
All the powers currently given
to the US senate shall hereinafter be vested in a new upper house.
All powers currently vested in the U.S. senate, except for the power to try
the impeachments of Assistants Postmaster General, shall
be relocated into a new Upper House.
So you keep the Senate, for a small, set of functions.
Everything else you give to a new, Upper House,
and that Upper House shall be apportioned as follows.
And that's just an ordinary Amendment.
It requires, it doesn't require every state to say yes
because you haven't changed the apportionment rules of the Senate.
You've just taken one of the powers of the Senate and given it to a new body.
So it doesn't require every state to agree, but
it does require two-thirds of the existing House to agree.
Two thirds of the existing senate,
including Wyoming equally with California, to agree.
Three quarters of the states to sign on
including Wyoming counting equally for Calif, with California.
They're, you know, for Wyomian, I think there are 80
Californians, Wyoming's about half a million, California's about 40 million.
So, so.
But Wyoming counts equally in the amendment process, both in the Senate,
where, where it has to pass by two thirds, and in the ratification
process, three quarters, why would Wyoming ever agree to an amendment that, for
example said, we're going to, we're going to,
this new upper house is going to every
state gets at least one person. No state has more than eight.
But California will have eight senators in effect and Wyoming only one.
Why would Wyoming ever agree to that.
Why would existing congressmen ever agree to
term limits or to the possibility of recall.
Aren't we just sort of doomed to, to this
system, even if it's not right, and not fair?
I want to end by saying, no, we're not doomed.
I want you to think about what the world should
look like, not just in 2020, but 2121, 22, 22.
And I want you to think in particular
about a po, the following possible kind of amendment.
Let's call it the sun rise amendment.
We've, you think about sunset legislation.
Legislation, you pass it, and it expires after a
certain number of years, the Bush tax cuts, or something.
The standing army appropriation census. It lapses every two years.
It needs to be revoted on.
But now instead think about a sun rise law.
A law that basically doesn't go into operation until five years
from now, or ten years from now, or 50 years from now.
Now we were talking about ordinary elections
for lawmakers, it would be ridiculous to
say, well, we vote now, and the person who wins takes office in 50 years.
That'd be an Alice in the Wonderland world.
Or for ordinary
laws we vote now but these laws go into effect in 50 years.
For ordinary laws, that wouldn't be so sensible.
For, for constitutional provisions, maybe this idea is a sensible idea.
A constitution is over the long run.
What should be, what are just and fair rules for societal governance.
If we can think back 225 years, we should think
forward and think we can be the framers of the future.
So now, let's think about, you're a Wyoming senator.
And you know, your, your name is Jefferson Smith.
That's the, the character played by Jimmy Stewart in Mr. Smith Goes to Washington.
And [COUGH] and if you vote to amend the Senate
today you're out of a job, you're unlikely to do that.
But now instead, the question is, what should the Senate
look like 50 years from now, 100 years from now.
You're going to be dead.
Your great-grandchildren are going to be alive.
They're not even born yet.
But your great-grandchildren, they are, are they going to be Wyomians?
Maybe they're, they're more likely to be Californians, or New Yorkers.
Why should you favor your
Wyoming grandchildren over your California grandchildren?
If you believe that a more proportional Senate
would actually be more fair, more just to posterity.
You can focus on just the issue or fairness.
Behind what the famous philosopher John Rawls called a veil of ignorance.
You. A generational veil of ignorance.
You don’t know whether your unborn great-grandchildren
are going to be gay or straight.
Or rich or poor, or whether they're going to be New Yorkers or Wyoming people.
So you are, your task is to think about what would be a fair
ground rules for the future.
You can be, we can be, my fellow Americans, founders of
the future, with the idea of a sunrise amendment, this is,
this is actually an idea that, if we read carefully, is
already in the existing Constitution, but they didn't use it enough.
Slavery was wrong.
They understood that slavery was wrong. And in one little corner.
But, it was part of their way of life,
the founding.
And in one little corner, they said, here's what we can do.
We can say slavery now, of a certain sort, but not in the future.
They said is, the international slave trade.
Kidnapping freeborn blacks in Africa and transporting them across the Atlantic.
That slave trade needs to keep going for 20 years, because South Carolina
insists on it and Georgia insists on it, but in 1808, we can
end it.
A sunrise amendment, a sunrise provision, and what they
didn't do, is, they, in 1808, not just the,
the international slave trade must end, they just said
it can end, but they didn't say it must end.
And they didn't say in 1808 not only must
the international slave trade end, slavery itself must end.
Or slavety in the west must be prohibited.
Or the three fifths clause, and, must sun, must end.
In, in, in 1808 and the numbers can be negotiated.
They could have said, in 1876. You know.
But, but they use the sunrise idea in one small place.
They basically, today we have to compromise with evil.
Because it's
part of our way of life.
There are people who, are benefiting from it.
We can't pull the rug out from under them.
They didn't invent the system, they inherited it.
But, but it's their way of life.
But the future should be better.
We should give our unborn great grandchildren a better system.
You see glimmers of that with the 1808 provision.
But I suggest it could be generalized. So, I end with this thought, that once
again if, if you've been with me this far, in this course, and
thank you very much by the way for sticking with me this far.
We've talked a lot about stuff that happened 150 years ago,
the civil war and 225 years ago, the hinge of human history.
The year that changed everything 1787, 88.
We need to think as seriously about what the world should
look like 150 years from now, 20, 25 years from now.
We can be framers of the future. And we can do this with sunrise
amendments that don't kick in today, but they will only be activated in the future.
And we can kind of ask ourselves, we might still disagree,
but we can ask ourselves not what's in it for us.
You know, what, what advances our interests, but what
is just and fair for our, for our posterity.
Not knowing whether my unborn great grandchildren are going to be, as I
said, rich or poor, or New Yorkers or Wyomians, or gay or straight.
What would be fair terms for our posterity?
So let me actually just read you the last paragraph of, of the last chapter of the
book and then I'm going to come back with one final sort of lecture about the
course as a whole.
And of course I have to tell you about this picture.
Here's the last paragraph of the book the last chapter.
Faithful constitutionalist labor under a two fold constitutional responsibility.
We must look backward in time and claim our constitutional inheritance.
And we must also look forward in time and make our constitution donation.
Though this second responsibility does not
reside on the clear surface of any explicit constitutional text,
surely it forms an integral part of America's unwritten constitution.
So in other words, so much of American constitutional law remains to be written.
You can be founders of the future.
I want you to take in this picture. This is from about 1970.
These are women demanding equality,
taking to the streets, their grandmothers had given
us the nineteenth amendment, had taken to the streets.
They are taking to the streets again.
They are in support of things like the equal rights amendment.
But that story isn't over. The question is, what should the
grandchildren, the great grandchildren, our generation, your generation of
Americans, how should we actually carry on, carry forward this great
inter-generational project that is America's Constitution, okay.
I'm going to.
the, the. Basically we've covered the two books.
I'm going to have one final lecture, trying to, sort
of pull the course together a little bit for you.
So I, I hope you stay with me for that.
Thanks.
[MUSIC]
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