 here at the National Archives. Whether you're here in the theater watching or watching us on YouTube or Facebook, I'm pleased you could join us this evening for our program, The Bill of Rights as an inspiration to the world. In three days we observe Bill of Rights Day, the 228th anniversary of the ratification of the Bill of Rights. Since President Franklin Roosevelt first proclaimed it on December 15, 1941, the day has served as a reminder that we should not take for granted the rights protected in this foundational document. Our partner for tonight's program is the Constitutional Resources Project, and we thank them for their support. Before we begin our discussion I'd like to let you know about two other programs coming up soon in this theater. Tomorrow and Friday at noon, author Tammy Visual will discuss her new book Melania and Michelle, First Ladies in a New Era. And on Monday December 16th at 7 p.m. David Rubenstein, a great friend to the National Archives, will be here with historians Jay Winnick, Taylor Branch and HW Brands to discuss his own book, The American Story, Conversations with Master Historians. Check our website archives.gov or sign up at the table outside the theater to get email updates. You will find information about other National Archives programs and activities. And another way to get more involved with the National Archives is to become a member of the National Archives Foundation. The Foundation supports our education and outreach activities. You can pick up an application for membership in the lobby or check out their website archivesfoundation.org. The addition of a Bill of Rights was critical to the ratification of the new Constitution for the United States of America. The preamble to the Constitution is familiar with its iconic opening words with the people. The Bill of Rights also has a preamble, although a much less well known one. It lays out the reasons for the amendments and addresses concerns about tyranny. These further declaratory and restrictive clauses, it states, should be added to the Constitution in order to prevent misconstruction or abuse of its powers. Yet the authors of the Bill of Rights didn't stop there. They recognized that the very existence of these amendments was a strength of the Constitution. The final words of the preamble declare that these additions would extend the ground of public confidence in the government and best ensure the beneficent ends of its institution. Earlier I mentioned President Franklin Roosevelt first established the Bill of Rights Day. His successor, Harry Truman, at the ceremony to unveil the Charters of Freedom in this building's rotunda declared that in my opinion the Bill of Rights is the most important part of the Constitution of the United States, the only document in the world that protects the citizen against his government. It is that uniqueness that has shaped our American identity and inspired writers of constitutions for the past 228 years. To start our discussion about the Bill of Rights as an inspiration to the world, I'd like to bring out Julie Silverbrook who will introduce our panelists. Ms. Silverbrook is the Executive Director of the Constitutional Sources Project in Washington. She holds JD from William & Mary Law School, a BA in Political Science from George Washington University. Ladies and gentlemen, please welcome Judy Silverbrook. Thank you so much for that wonderful introduction. We are so pleased to partner with the National Archives again this year to celebrate Bill of Rights Day, the mission of the Constitutional Sources Project or CONSOURCE for short is to educate people of all ages about the history of the United States Constitution. Public programs like this one are a core part of the work we do. In addition to hosting public programs like this one, we also have a freely accessible and fully searchable digital library of historical documents tracing the history of the United States Constitution and Bill of Rights and a range of free educational resources. We invite you to check out all of our free resources at www.consource.org. We want to thank all of you for braving the cold and apparently the really bad traffic to get here tonight to celebrate the 228th anniversary of the ratification of the 10 constitutional amendments that have come to be known as the Bill of Rights. Tonight we have an all-star lineup of historians and legal scholars to help us explore the influence of the Bill of Rights around the world and to place this founding document in its historical and global context. I now have the privilege of briefly introducing our esteemed moderator and panelists. Their full biographies can be found in your event program. I hope that means that they're gonna... One second. You guys coming up? Okay. Now I have the privilege of introducing our esteemed moderator and panelists. Thank you. Thank you. I'll wait for them to sit down. Our moderator this evening is Professor Jack Rakov. He is a Pulitzer Prize-winning historian and professor of history, political science, law, and American studies at Stanford University. His principal areas of interest include the origins of the American Revolution, the Constitution, the political theories and practices of James Madison, and the role of historical knowledge in constitutional litigation. Linda Monk is a constitutional scholar, journalist, and nationally award-winning author who has twice received the American Bar Association Silver Gavel Award. Her book, The Bill of Rights, A User's Guide, which includes a forward from Justice Ruth Bader Ginsburg, will be available for purchase and signing after tonight's event. Next to her is David O. Stewart, who after many years as a trial and appellate lawyer became a best-selling and award-winning writer of history and historical fiction. His histories have explored the writing of the Constitution, James Madison, Aaron Burr, and the impeachment trial of President Andrew Johnson. Next to him is John Bessler, who is an associate professor at the University of Baltimore School of Law. He is the leading authority on capital punishment and has written 10 books. He has taught courses on a range of legal topics, including most relevantly comparative criminal law and international human rights law. Please join me in welcoming our moderator and panelists to the state. And with that, I am going to pass the baton over to Jack to get us started tonight. Thank you. Well, first off, thanks to all of you for making it out on what, to a California like me, myself seems to be a bitterly cold evening and braving whatever adversity of traffic and other conditions may have affected your journey here. I think before I turn to the panelists, I wanted to make two introductory remarks of my own about how I think about the Bill of Rights as a historical document of the first order of magnitude. The first remark I want to make is essentially definitional. If we're to understand the Bill of Rights in its proper original historical context, I think the first fact we have to recognize, and I think one useful way to think about its international significance, is to recognize that there were bills of rights of different kinds that were circulating in the Anglo-American world in the 17th and the 18th century, meaning back in the mother country of Great Britain and, of course, in the separate American colonies. What made the Federal Bill of Rights significant in a substantive sense, building upon a precedent that was, I think, first set in Pennsylvania in 1776 and then was reaffirmed in Massachusetts in 1780, is the idea that the Bill of Rights was not just a statement of noble principles of legal practice in political order. Ideas and values that hopefully governments would live by. The Bill of Rights, as James Madison and others thought about it in the late 1780s, was now come to be perceived, in effect, as a set of legally entrenched commands. Not just a set of maxims or principles, but a set of legally entrenched commands that governments were obligated to enforce and citizens should have the right and opportunity to pursue. It's that enhanced, because I'll say judicial status, or jurisprudential status, that enhanced status which made the First Amendment to the Constitution we think so significant to their legacy thereafter. And I think one of the issues we want to pursue this evening is to try to discuss what their notion of legally enforced commands actually means. Second point I want to make by way of introduction, and really to pick up on a point or two that the archivist made, is to recognize that our fascination with the Bill of Rights in our own constitutional culture is very much a modern phenomenon. The Bill of Rights would not have been esteemed quite as nobly or quite as religiously in the 18th and 19th century as it can be perceived in the 20th century. And I don't mean this as a heretical statement. I'm not saying this with any kind of ironic intention in mind, but I think it's true that the development of serious Bill of Rights jurisprudence is very much a post-World War I, World New Deal, World War II era development. I think the modern legal academy, I mean I've hung out with a lot of lawyers, some of whom were sitting right in front of me, and hung out in law schools. As I understand, constitutional laws as taught today consist usually a two-volume approach. One devoted to structure, federalism, separation of powers, second devoted to rights. That would not have been the case in the 19th century in early law schools. So it's true that I think starting in the interwar period, the idea that the Bill of Rights was and, or perhaps the essential part of the Constitution, became a rather significant discovery. And that in turn leads to a question I think we're going to want to come back and pursue during the rest of the evening, which is the extent to which we should think of the Americans as our own idealization in our attitude stores the Bill of Rights as being linked to what we might call the globalization of human rights in the late 20th century. What's the relationship between the way in which the Bill of Rights became increasingly important in America jurisprudence and the promulgation of a much richer notion of human rights around the world that's become so much a part of our contemporary constitutional discourse on a global basis. So those are kind of the two essential facts, which, you know, being primarily an 18th century historian, I wanted to get out in front of us. What we're going to do now first is we'll have a bit of a round robin working my way actually. First from Lyndon, then to John, and then back to David. And I'm going to put one question or two to each of them. And then I think we'll want to reserve some time for discussion and reaction among the panelists. I think we will, I think we'll widen the discussion a bit. We want to talk about the inspirational value of the Bill of Rights, but we also want to say something about the Bill of Rights in a modern federal context within the United States as well. So first off, Linda, and I will now say that her book, The Bill of Rights, A User's Guide, will be available for purchase in autograph immediately afterwards. So keep that critical fact in mind. So as it happens, I have a book coming out. I imagine you do. And the title. It seems to be a habit of yours, I've noticed. I'm trying to be prolific, you know, my latter days. So the title of the book is Beyond Belief, Beyond Conscience, The Radical Significance, The Free Exercise of Religion. And the kind of like motif of the book is that of all the rights we possess by working thesis is freedom of religion may be the most important right of them all, and I try to sustain that argument. I won't say anything more about my book, but I do want to put this question to you. Would you think, I mean, in a certain sense, is religious freedom the most precious and urgent, put the emphasis, urgent right of all, of all the rights protected? And how do you think about it, how do you think about the relationship between what happened in the United States post 1789 and, you know, the situation of religion around the world today? Wow. Okay. Let me start by answering that question first. So when I go somewhere else, I'll at least have answered your question first. I would refer to it the way the framers did or certainly Madison did, talking about freedom of conscience. We use the word religion in a lot of different contexts now, and certainly that's non-establishment of religion, free exercise of religion. I'm curious, are you one of the First Amendment scholars who tends to believe that non-establishment is there to actually protect the exercise, that they're not really in conflict, they're there to... Yeah. So I've cut to the chase. So you're not leaving out this anti-establishment. I see them being mutually reinforced. Okay. And we're about to disagree in just a little bit, but I'll get there. First, as the first one with legal education responding, one of the first things I was taught in law school was there is no right without a remedy. So to me, that is, in fact, what makes our constitutional system and our system of under the Bill of Rights what's worth celebrating. And as you may recall, certainly when you do, the letters between Jefferson and Madison and Jefferson's writing from France right after the Constitutional Convention, he says, you know, there's a lot of things I don't like about this Constitution. And one of the biggest ones is the lack of a Bill of Rights. And Madison responds and says, Bill of Rights, Miller of Rights, you know, they're all punishment barriers or something to that effect. And then Jefferson says, no, but you forget, which is ironic, coming from Jefferson as well later, see that in the hands of an independent judiciary, the Bill of Rights will be enforced and that in fact becomes one of the reasons Madison cites for changing his mind. However, when we talk about why did the Bill of Rights, what happened to the first hundred years, blame two people, John Adams and John Marshall. John Adams packed the Supreme Court so that when you had the Sedition Act and the anti-Federalist Congressman Matthew Lyons had to run from jail, there was no Supreme Court that was going to hear his case. And then John Marshall says in 1833 that the Bill of Rights really just applies to the state, excuse me, the federal government, and yet the states are where most people interact with government. So that gives you 100 years. Now, back to the first amendment. It is my heartfelt belief and constitutional conviction that our religion clauses, and for me in particular, the non-establishment clause, the idea of separation of church and state. And I know someone is going to quickly say, oh, that is not in the first amendment. Well, guess what? Fair trial is not in the sixth amendment either, but we still say we have a right to one. That notion that it is not only good for government but also good for religion, good for the church for there to be separation between goes back to Roger Williams, the Providence plantation. We have 100, almost 150 years before we get our Bill of Rights, some idea that it is really not good, particularly if you are in Anglican, Virginia or Congregationalist Massachusetts, for the government to be that closely allied with religion. And as Professor Rakoff would say, in fact, having that principle encourages free exercise. So, are we now on to the international part of the question? Whenever you are ready. When I look at it today, my belief is I am really concerned that I feel like the non-establishment articles are collapsing in favor of the so-called free exercise arguments. I can unpack that in a minute. But we invented, as a government, we invented separation of church and state. It is an American idea. It has had mixed success throughout the world. You certainly look at England, which still has an established church, but nobody goes to it. And you have President Modi, Modi in India, who is now formally embracing formally as well as informally Hindu nationalism. The idea that somehow government should not be in the business of religion and religion should not be in the business of government, I think is imperiled in our own Supreme Court today. And I am concerned about if we who invented the concept are not promoting and standing by the concept, how do we expect others in the world to be able to protect religious freedom from government intervention and from government persecution? Let me just push you a little bit on this. I expected that. This is just a matter of opinion. It is not that you are bound to cross examination or anything else. I thought about this in terms of my own work. When we think about the configuration of separation of church and state, whether we define it in terms of free exercise or disestablishment, do we or do you think about this primarily as an American exceptionalist case on the one hand? Or do you think we should regard it as being paradigmatic for other societies, which is an open-ended proposition. And there is no one right answer to it. But I am curious how you would. Well, I am curious how you would define American exceptionalism because of course there is American exceptionalism in the sense of we created separation of church and state. We are exceptional. If you mean by that somehow there is some inherent good to our governmental system that we can go back and have the American century every century, which is how unfortunately it has been defined by some. I will often answer, David, maybe not immediately but some later point or maybe who knows, you might want to. I would make an argument something like this. When it makes the United States exceptionalism, I think this is very much a Madisonian position. I say that I think with the modicum of authority is to say that what makes the United States exceptionalist is we have a radical program of disestablishment, which has very few echoes elsewhere in the world. And we have a radical commitment to the free exercise of religion. And out of that configuration we have the outcome that now differentiates the United States from most of the other societies to which we would like to compare ourselves. Namely, we have radical disestablishment and higher degrees of religious participation than most comparable societies would have. So I think that is an exceptionalist argument. And if we want to say that there is an inspirational aspect, which is our motif here, we want to say there is an inspirational aspect which other societies might not want to imitate, the idea is that by virtue of disestablishment you make both state and church healthier entities. The church no longer tries to corrupt the state and the state doesn't try to manipulate the church for some purpose. And the outcome is a net increase in religiosity. Oh, that is certainly my belief. Now, I am related to people in the clergy who don't believe that at all. Do you want to name names? No, I do not. Christmas times are coming. So the idea that the government itself is not supposed to be picking and choosing among space. Great. But I am concerned that we're not choosing any disestablishment arguments. For instance, like with the Lutheran Daycare Center that wanted the tire chips. And as I was raised to say, God bless them. But when the Missouri Constitution says very clearly a separation is part of their constitution and then our Supreme Court is going to overrule that saying that that really impinges on free exercise as though separationism is a part of our constitution is just kind of shocking to me. Even though I have, excuse me, heck, I would go out there and haul the chips for them myself but I don't want the Missouri Constitution overturned for it. So I'm concerned about if we're not living our exceptionalism ourselves as my people. So there are two ways to branch this. One is to consider the international question. The other is to say what's actually going on in our jurisprudence today and what kinds of things might be alarmed about. I mean, I'm looking internationally. It does seem like more and more governments are coalescing not just around nationalism period but religion as part of that nationalism, whether it's Russia and the Orthodox Church or Modi. So do we have any? I'm asking you for this. Seriously. I mean, do we have, I don't know what kindred spirits are out there in terms of religious diversity? I think that's what helps make the exceptionalist argument in my case. So thanks, Linda. We're going to shift gears somewhat. I mean, one expectation I had was we would set up the religion clause as arguably the greatest example of what the Bill of Rights set out to accomplish and one ideally in my best of all possible worlds. And the framers thought of freedom of conscience as the foundational right. In those terms, shift gears. I'm going to put a rather different question to John Bessler. When I say shift gears, I think it might almost invert what I was just trying to do. So John's done a lot of work of just saying this to the audience on issues involving the death penalty and torture. Here we have, and of course, we all know the last five words or so of the Eighth Amendment, which I'm currently at, nor cruel and unusual punishments inflicted. It is one fact of the contemporary world that we rank right up there in some ways with the Chinese and the Iranians in terms of our willingness to still use capital punishment, though. So we all know that's become a very fluid situation in the United States. So John, on this rather sensitive issue, I guess there are two sets of questions I want to ask you. One is more historical and the second is more contemporary. The historical side, you know, I know you've given some thought to the role of European and white men thinking in terms of forming American attitudes about cruel and unusual punishment. Thought it would be helpful if we said something about that, and then I'd also like to hear your reflections on how we think about American death penalty jurisprudence today in light of human rights issues around the world. Sure. Yeah, I think it's important when we're talking about the U.S. Bill of Rights to remember that the U.S. Bill of Rights doesn't just appear. We have the English Bill of Rights 1689, which starts us off, and that's where we actually get the cruel and unusual punishments language, and then that gets transmitted to the state, revolutionary state constitutions, including in Virginia, which also prohibited cruel and unusual punishments. Some of the other documents actually, like in Massachusetts, talked about cruel or unusual punishments, as did the Northwest Ordinance, which was the first document to abolish slavery, actually. So there's a really interesting discussion in terms of the history of where we get that language originally, and of course, Britain doesn't have a written constitution like we do. But the language comes from the mother country. And interestingly, England doesn't have capital punishment anymore, but we still are using it today, exactly. So back then, of course, they did. I was going to say, I think Washington worried about that. Back then, there was definitely a capital punishment. But we look at the history of the Eighth Amendment, which prohibits both excessive bail and excessive fines, but also then the cruel and unusual punishments clause. And that actually draws some inspiration from the Enlightenment. In the U.S. Constitution, Montesquieu was kind of the star of that, because he was talking about separation of powers. But the Italian beccaria, Cesare Beccaria, who's an Italian aristocrat, wrote a book called On Crimes and Punishments, was really the star of the revolutionary state constitutions, because he was talking about proportionality of punishments. And we had the revolutionary state constitution trying to eliminate sanguinary punishments. There's a word we don't really use a lot today, but means bloody or murderous. And so we actually had a movement towards the Penitentiary System. And we have the opening of the Wallen Street prison in 1790, around the same time that we have the U.S. Bill of Rights just being ratified the very next year. And so there's a lot of interesting history about that. And the Enlightenment, Beccaria, this Italian aristocrat, was the first person to make a comprehensive case against the death penalty. And he writes his book in 1764. And actually, the Continental Congress as a whole quoted Beccaria in 1774, right before the start of the revolutionary war the next year. So he was a very big influence. And one of the maxims that he wrote about, which he was actually borrowing from Montesquieu, who wrote about it in the spirit of the laws, was that any punishment that goes beyond necessity is tyrannical. So you see John Adams quoting that, copying that maxim down in his diary. You see other founding fathers also looking to that maxim of punishment. So the idea was to make punishments more mild. England had what was called the bloody code, which made at one time over 200 crimes punishable by death. And so we've seen a movement that really began around the time of the Constitutional Convention itself actually. So Dr. Benjamin Rush just months before the Constitutional Convention was at Benjamin Franklin's house and said that the penalty of death is inappropriate for any crime. And so the movement to abolish the death penalty really starts in the Enlightenment and around the time of the Constitutional Bill of Rights. But back then they didn't have a well developed penitentiary system yet. So now we've moved to a life without parole. There was actually just a Gallup poll that came out for the first time since Gallup has been doing these polls, found that there's more people favor life without parole than the death penalty. That was just about a week ago that came out. And so I think we see this maxim that Montesquieu came up with the becariah then promoted is something if we looked at it today and thought about the death penalty, is the death penalty really necessary when we have maximum security prisons would be something important to look at. I also wanted to say a little bit about, and we have the, obviously we have the Eighth Amendment ratified in 1791. But the Bill of Rights really became an inspiration for a lot of documents around the world and constitutions around the world, listing rights. And if you go look at the American Declaration, which was in 1948, just right before the Universal Declaration on Human Rights, which Eleanor Roosevelt was involved in, that talks about how there shall be, no one shall be subjected to torture or cruel inhumane or degrading treatment or punishment. And so you've got slightly different language there, but you have the U.S. Bill of Rights, particularly the Eighth Amendment, really serving as a model for lots of different places where in international law, where we have articulations of human rights, including the International Covenant on Civil and Political Rights, which is sort of one half of what we call the International Bill of Rights. And so if we look at the death penalty today, we do see, as you point out, the group of countries that we're with in using the death penalty, China, which doesn't really keep statistics. It's considered a state secret there, but it may be as many as 10,000 people every year or more who are subject execution. You see Iran, Iraq, Yemen, Saudi Arabia. Saudi Arabia still uses some really grotesque corporal punishments as well, things like amputations. And so if you look at the history of the Bill of Rights and actually the jurisprudence surrounding the Bill of Rights, I think the Eighth Amendment is a perfect amendment to look at when we talk about this debate between originalism versus sort of living constitutionalism, because there's been referenced in the Eighth Amendment case law to the evolving standards of decency of a maturing society. And we've gotten rid of these non-lethal corporal punishments back at the founding. There was actually a talk at the Constitutional Convention of Things Like Earcropping, of course, in whipping. Whipping of slaves was something that was done very routinely back at that time. So we've moved away from these non-lethal corporal punishments, but yet we're still using the death penalty. And so if you look at where we are internationally at this point, we see that the European community has moved away from the death penalty. Europe, except for Belarus, is really a death penalty-free zone. And they have two protocols in the European Convention on Human Rights, protocol six, which abolished a death penalty during peacetime, and then protocol 13, which abolished a death penalty during war time. So in Europe, the death penalty is completely gone. We've seen actually in South Africa, which has kind of an equivalent to our Eighth Amendment in its Constitution, declared the death penalty unconstitutional back in the mid-90s, and you've seen countries like Rwanda, Mongolia, all get rid of the death penalty. And so we're really, in terms of highly industrialized societies, the United States is really alone with Japan in still using the death penalty. So that's kind of where we are now. One interesting thing, I wanted to talk about torture, which has been in the news lately with the release of these drawings from Guantanamo, is that Becariah, the Italian philosopher from Milan, I talked about. By the way, he was 26 when he published his book. So he really became a worldwide bestseller, and the founders were voracious readers of his book, Jefferson and Madison, and George Washington ordered a copy actually in 1769, is that Becariah wrote about torture and capital punishment, two separate chapters. So the death penalty was seen as something other than torture. And actually in the civil law countries, they actually had traditionally authorized the use of torture under some rules pertaining to that. In the common law of England, the common law rejected the use of torture, but the monarch had the right, or took the right, under this idea of a divine right of kings to administer torture. And if you've been to the Tower of London, you would have seen instruments of torture there. So England certainly had torture, but it was not a product of the common law. If you think about torture, the definition of torture has really changed over the years. It used to be thought of as just something physical that operated on the body, sort of like the Inquisition style, waterboarding, torture methods like the thumbscrew, things of that nature. But ever since the U.S. has ratified the UN Convention against torture, what's prohibited is actually the infliction of severe pain and suffering for purposes, one of which is punishment, either physical or mental. And so we have psychological torture right now. And actually a prototypical example of psychological torture is a mock execution, which is where someone is led to believe they're about to be executed. And if you think about that, if a fake execution or a simulated execution is already considered to be torture, then what about the real thing? And so that's an interesting thing to ponder as we sit here in the 21st century at a time when South Africa and Mongolia and Rwanda have already gotten rid of the death penalty. Can I just push you just half a step further than this? How do you account for the current, I mean, the death penalty has again become a vexed issue in American popular discussion. And we went through the whole cycle of cases where the Supreme Court basically deemed it unconstitutional, but the retreat from that took place fairly quickly. We see to be back at a moment now, though, where it's the data you just suggested about long-term prison sentences versus capital punishment suggests. How do you account for this? Well, I think part of it is we have our system of federalism. The only way that the death penalty could be abolished cleanly in the United States is if the U.S. Supreme Court were to declare, like the Constitutional Court of South Africa did, the clear is unconstitutional. Otherwise, you're looking at a state-by-state basis and on the federal level as well, legislation. And right now, you've got a situation where you have 29 states that still have the death penalty. 21 states do not have the death penalty. So you've got to split. Now, those statistics are a little bit misleading because you have a lot of states where it's been dormant. It hasn't been used for, say, more than 10 years. And if you look at the number of death sentences that are being handed out, they're really falling. I think since 2015, there's been less than 50 death sentences handed out every year. And then we're seeing less than 50 executions every year as well. So the death penalty has become more and more arbitrary in application, which also has some significant problems. A lot of discrimination in the system, which runs a file of the Equal Protection Clause. And there was actually the Civil Rights Act of 1866 actually said that there needed to be like punishment between blacks and whites. And there's historical evidence to show that the 14th Amendment, which is not part of our discussion of the first 10 amendments to the Constitution, but it's very important because in some ways it's really a second constitution because it's going to be applying these rights in the Bill of Rights against the states through selective incorporation. The 8th Amendment has been selectively incorporated against the states. So the states have to abide by it. If there's a state constitution that gives more rights, the state's free to do that, but the 8th Amendment sets the floor for conduct of the states. And the 8th Amendment, if you look at the interpretation of it, the court, in cases like Bays v. Reese, Glossov v. Gross, and a recent case called Bucklew, really focuses then on is there going to be physically torturous pain at the moment of an inmate's death. And that issue really misses the larger point about the modern definition of torture, which is that it could be either physical or mental. And ordinarily a death threat is something that's treated, if it's credible, as a potentially torturous act. And so if you think about if a confession is coerced through a death threat, or if a contract is obtained through a death threat, we make that contract null and void. And so one of the things that is an immutable characteristic of a death penalty involves the use of death threats. And actually one of the most interesting things I think is that there's some case law in Alabama, for example, which is a death penalty state, where they define psychological torture as the awareness of one's impending death and the helplessness to prevent that death. If you apply that same definition to people on death row, you would come to the same conclusion that you're really talking about psychological torture in that context, especially at a time when you've got a rampant discrimination, which is also one of the basis for something to be considered a torture under the torture convention. Great. Well, David, I'm going to give you a rather tough challenge. So, you know, with John, we raise the seven international comparisons. I mean, you have special interest, I gather, in fourth, fifth, sixth amendment due process issues generally. So this is a tough nut to crack if we think globally. But first off, I wanted to ask you what broad inferences can you draw, if any, about the impact of our bill of rights on that larger nexus or cluster of civil liberties? And then secondly, I wanted, as you know, I'd want to come back and talk a bit about the federal aspect of this as well. Internationally, it's a mixed picture. Of course, the roots of those rights for criminal defendants, basically, against self-incrimination, right of confrontation of witnesses, and right to counsel, those roots are in the common law adversarial system of England. And John described how those came to us. And the colonists cared about those rights and felt that the English actually had been stripping them, to some extent, of those rights in the disputes that they were having with England. So they were very concerned about them. Internationally, when you get away from systems that have that common law basis, they have, I think, very slowly seeped into them, but in a different structure. So you have international constitutions of other nations like Canada or Mexico or even India that have specified these rights. And so you can see a distinct line. Of course, England doesn't have a constitution, so they're not there. And they actually written constitutions. On behalf of Her Majesty. What they don't also have is they don't have a right against self-incrimination, which is an interesting thing, because you do have one that right in Scotland, which is something I have trouble sort of sorting through. But if you go to continental systems, their constitutions tend to sort of follow the French Declaration of Rights from 1789 and the UN approach in 1948 where there's this broad assertion that persons are humans and have liberty rights. And they don't mess around in the weeds with the sort of procedural stuff that the Anglo-Saxon tradition has focused on. But what you do find is that's often statutory. So many of those rights have been established for those systems in a statutory structure. So I think there has been a lot of influence from our adoption of those rights. Frankly, how many times have foreign audiences watched the Miranda warnings in movies? They can't get away from our culture and they're not all irrational. I mean, the one that nobody follows apparently is the exclusionary rule for unlawful searches and seizures. We say that the evidence can't go into court. It's not a constitutional rule. It's a supplemental rule. And most other legal systems find this counterintuitive that, you know, it's evidence. It's good evidence. Keep it. So the Chief Justice Roberts. Well, there are a lot of justices who have felt that way, but they haven't won yet. In any event, I do think it's not a one-to-one situation, but you do see a lot of influence coming from those provisions of the Bill of Rights. Okay. So now I want to come back and actually pick up on John's point. I mean, I know, I think it's actually from David, speaking of a Scott from David Garland's book on capital punishment, that there is a terrific amount of variation in the United States in its implementation that just represents and reflects local politics. If a DA wants to run, make capital punishment in its ticket for reelection or local judges when they're elected, they are bound their way. So David, I want to put a somewhat similar question to you. I mean, there is an interplay, there's a kind of complicated interplay between federal and state practice under the incorporation doctrine, which evolved from whatever the 1930s on, the idea of imposing the Bill of Rights on the states became the major, kind of the dominant variable in American constitutional history. That's why law students today have to read two volumes and not one when they do constitutional law. But given the vexatious nature of judicial politics today and the question of what kind of interplay do you think is taking place between federal courts and between national courts and state courts, national courts and state courts, is this a live area? And if so, yeah, I do. And it's been interesting, John alluded to the fact that it's sort of ratchets upward. The Supreme Court has said that a state cannot provide constitutional rights that are less than the Bill of Rights provides, but they can provide more. And states have done that. Justice William Brennan of our Supreme Court wrote a very influential article in the 1970s. He could see the Supreme Court veering a bit to the right. And so he said, wait, wait, wait. State Supreme Courts can do their own thing. They can apply state constitutions. And it's been done a lot of times. Now, some state constitutions are actually different. Montana's state constitution has a right of privacy in so many words. But we're getting a lot of departures. We saw it in the political gerrymandering case in Pennsylvania. Ten states have held that random roadblocks for DUI are unconstitutional. Now, the Supreme Court says they're fine. But they're saying under their state constitutions, they're no good. And it does raise the sort of intellectual puzzle, okay, so how do we get these different outcomes? Well, if there's different state constitutional language, that's one thing. But there often isn't. It's often exactly the same words. So you get into these kind of games where you say, well, those words meant one thing to the 13 states, but then when it was just Pennsylvania ratifying, it meant something different to Pennsylvania people. Or as a timing thing, if the language comes in 100 years later, that the words took on a different meaning 100 years later, which in fact, Madison writes about the fact that words evolve in their meaning over time. So there's a lot of play in the joints these days. And I think state courts of last resort are understanding this and are taking advantage of it in both directions. You know, the Arizona courts have recognized a greater right of the private property holder to oppose eminent domain than is provided under the Fifth Amendment. So it is part of the sort of federal state conversation that we say we want, but then we find uncomfortable when we get different answers to the same question. You wanted to jump in on this? Oh, I always want to jump in. Well, feel free. Okay, thank you. It relates both to John's point to about abolition of the death penalty and then state standards around that. To John's point, this is part of where I have to confess that I agree with Justice Scalia that it's right there in the Fifth Amendment and the 14th Amendment shall not be deprived of life, liberty or property without due process of law. So the question becomes what's due process, but I don't think you can make essentially a substantive due process or even I don't think it's going to be appropriate remedy and I don't think the court really can totally abolish the death penalty across the board. I'm personally with Justice Blackman who said I've been at this for 30 years trying to figure out how you could improve due process to the standard we want in death penalty cases. Justice Scalia wasn't particularly bothered about this. I go, well, the governors can deal with that. But in terms of sheer abolition, part of my strategy toward that would be for the states who still have the death penalty to look at the areas that are causing that great financial burden on the rest of the state. Maryland was the classic example of the capital cases were coming from Baltimore County. And yet this is a statewide burden to give the level of due process you want in capital cases requires multiple levels of a view, multiple much higher standards and evidentiary and things like that. We're seeing more and more of the people who have either been executed or sentenced to death wrongly. So if I'm a taxpayer, I'm looking at the state and saying, okay, how much more do I want off board of this? These would be life without parole. It's certainly more expeditious and the economic argument has been made it's cheaper. I want to just offer a point of personal privilege here because I litigated a death penalty case in Maryland, not Baltimore County. And the man is now free. We got him out. And we are reading these stories every couple of months, there's something. And I can't do better than what Professor Charles Black said 45 years ago, which is with the death penalty, there is the inevitability of caprice. I mean, court systems screw up. That's what they do. We are human beings. Those are the systems we create. So that seems to me an easy due process argument, frankly. Yeah. If I can just jump in on that a little bit, there's been over 160 cases now that the death penalty information center is documented wrong full. People have been exonerated from death row. So we see a lot of mistakes in the system. There's one estimate that maybe about 4% of the people on death row currently may be innocent. We don't know who they are, but if you look at the statistics in the past, they kind of make that calculation. There is also an interesting dialogue going on between the state and federal courts on these points of rights. So, for example, there's a case out of Connecticut state versus San Diego where the Connecticut Supreme Court declared the death penalty was unconstitutional at the same time that the U.S. Supreme Court continues to authorize the death penalty. So you see that debate. Now, in terms of reading the Constitution, there's also a lot of things in the Constitution. We have the life or limb. Of course, we're not depriving people of limb anymore. Now, they did that during the founding period, but we've moved beyond that. And so that word is essentially moot at this point. In terms of reading the Constitution, I actually found some historical evidence. There's a guy, Peter Duponsu, who's in charge of the Law Academy of Philadelphia in Pennsylvania, and he said, look, the 8th Amendment language means something different in his time than it did back in England. And of course, the English Bill of Rights discriminated against Catholics. It was a very protestant, leaning document. Certain rights were only given to Protestants in that document. And so we've moved now to inequality, and the 14th Amendment adding equal protection to the laws is constitutionalization of that Civil Rights Act of 1866, the first Civil Rights Act. And so we have all this arbitrariness in the system. And it's important to remember that the Bill of Rights was not a penal code. It was protecting individual rights. And at a time when the death penalty was the mandatory punishment for various crimes, you would expect the document to give rights like due process. Of course, we've moved to a discretionary system of punishment now. And so, but I think, you know, reading that language about cruel individual punishment, it does evolve with the times. There was a case in Pennsylvania back in the 1820s, where the Pennsylvania Supreme Court said that ducking was not a punishment that was consistent with Pennsylvania practice. That's where you would duck somebody who was a scold in the water. In Virginia, there's an exhibit that I actually would like to commend to you at the Jameson Lorcan Foundation called Tenacity. And it has a 1600s actual ducking chair at the center of it. So we've gotten rid of a lot of these nonlethal corporal punishments, but yet we're still using this lethal punishment. So nonlethal punishments like actually Justice Blackman, when he was on the A-circuit actually, decided then that lashing of prisoners was inconsistent with the Eighth Amendment. So if the lashing of prisoners is unconstitutional, then you would think that anything more severe than that would also qualify. That's the enigma. So you're comfortable with judges making that determination just as we've evolved out of the... I mean, I think that's the duty of judges is to read the Constitution and interpret that. But I'm hoping... I take your point about the abolitionist sentiment in the United States right now. And I would like to see us do a constitutional amendment like that because what justices can undo can be redone. And so it's not because I disagree with you about abolishing the death penalty. It's a question of what's the best means for that to happen. On this question, if I'm reading you correctly, I may well be wrong, but you would take an original exposition in the sense that there's no ambiguity that the capital punishment is perfectly consistent with the original understanding of the Constitution. And I'll do respect to your book and original... We'll talk about one later. Original meanings. And that whole point of view of, well, is the Constitution limited to what it was intended or whatever in 1787. There's an evolving language around that that now currently means originalism. I always went to law school when we were taught the plain meaning of the words. There's the plain meaning of the words. And we can... We start there and then we look at the historical record, we look at other things, but shall not be deprived of life, liberty or property without due process of law. Now, for those... I'm jumped in now. When you talk about... For those who've been to law school or been around lawyers, the whole idea of due process meaning procedures, that's what Justice Scalia would say, that we're giving you your procedures and that we're not to judge ultimate innocence, which I do think is a crock. I don't believe that. But the idea that substantive due process would mean we could just decide that death penalty is just inherently a violation of human rights, which I hear you interpreting the Eighth Amendment that way, and I support that. But I've also got this language in the Fifth Amendment that clearly recognizes that life can be deprived as a punishment. I personally would do it under due process of law versus evolving cruel and unusual punishments because you've still got that actual language. And no, I want the death penalty abolished. I want it abolished in a way that will be abolished forever and not dependent on when some new set of judges says, yeah, I see it differently. For instance, Justice Alito has said, well, if we have to have some pain when we kill somebody, that's not an Eighth Amendment issue. Well, you raised an interesting question. Maybe I would put to everybody here. It's a long time since we've had a serious amendment to the Constitution. Amendments have really come sort of in spasms. You don't care that much about the 27th Amendment? Are there 28th Amendment that Virginia may be about to ratify? Well, that would be a substantive amendment. I would expect it to be litigated a lot. It's the 60s since we had anything, and that was a voting rights amendment and also the succession to the presidency. And why is that? It's not that we think the Constitution is perfect. Have we lost the appetite to amend or have we lost the ability? Well, they tend to come in clusters, as you know, starting with the Bill of Rights itself. And I agree with you that we're overdue. My personal recommendation would be a national voting rights amendment that gives us all what's not in the Constitution, which is a fundamental right to vote, that the Supreme Court can't take away. Montana has that. It's a heck of a Constitution. But a national voting rights amendment. So that would be my two cents. There are other questions I could ask, and we could raise, and if pressed, we're happy to do so. But we thought it might be a good idea to open this up to whatever questions and informed comments that you'd like to put to any of us on the panel. And there are microphones. There's one over here and one over there. And I guess as the moderator, I'll also act as the major D. And if no one rises to the occasion, I'll come up with something else. Yeah, while people are doing that, I might add a word on the torture issue. Actually, some case law going back all the way when the U.S. Supreme Court back in the late 1800s declared that in cases involving the death penalty where they approved the use of the public firing squad and electrocution, that torture was prohibited. But the modern definition of torture now covers psychological torture. That's very clear. And a credible death threat is considered something that is torturous in nature. But the Supreme Court still isn't really reading the modern definition of torture when it considers that issue. And it would apply to life without parole too, that that's a form of psychological torture too. I've seen the arguments. Yeah, the necessity for punishment. I think there's cases where people would say it's necessary to confine someone for life. But of course, the conditions of confinement are also subject to Eighth Amendment scrutiny as well. But you need to look at the, is there a necessity for the punishment? But the court's failure to kind of consider the modern definition of torture, which we've actually ratified, the U.S. has ratified the convention's torture, is a role misstep, I think, on the court's jurisprudence. Sir. Yes. Thank you very much, all of you, for being here tonight. I want to go back to the early part of the discussion. First to comment, I agree entirely with Ms. Monk. I am very concerned about the recent interpretations of the First Amendment, especially with respect to freedom of religion. It seems like more and more the courts, and particularly the Supreme Court, are allowing certain religious types to be able to ram their interpretation of religion down the rest of everybody else's throats, and not allowing us to be able to have much recourse, especially in the cases of discrimination, particularly against the LGBT community. I'm deeply, deeply concerned about that. And I'd like to ask all the panelists especially, and also our moderator as well, do you think over the next 30, 40 years, given the current composition of the court, given recent events in terms of who was being appointed to lower courts, we are going to see the more strict interpretation view essentially take over for the next century, and therefore stop progress, especially with respect to social issues, or do you think that it can be stopped? Just let me clarify, when you say strict interpretation, you mean originalist interpretation? In other words, interpretation, plain text reading that basically says, well, it doesn't say it here, so therefore this is the way that it can be, and basically if you disagree, well, we don't really care. Linda, I think you should take the first stab at this. First of all, thank you for your question, and thank you for your concern, which I share. Religion is not supposed to be used to oppress anyone. That's the principle behind the religion clauses and the separation of church and state, and in terms of just using the terms of art again, plain meaning of the words, at least when I went to law school, again, it doesn't mean you stop there, it means you start there. So a person who has scribed one of my great con-law professors, John Hardeeley, would start there with equal protection, but wouldn't say it just meant what it meant in 1868. And by the way, as Jack alluded, in the 14th Amendment, now we're discovering just how expanse of the intent of the framers of the 14th Amendment was around privileges and immunities. In terms of constitutional interpretation by the current court, you already know the answer to that. It's very clear, Justice Kennedy, who wrote the majority opinions in some of the cases that acknowledged marriage equality and also, I think, really did advance our understanding in terms of overturning Bowers v. Hardwick and then writing the opinion of Lawrence v. Texas. But what the Supreme Court, this comes to my point again, what the Supreme Court gives the Supreme Court can take away, and that's why I'm a big fan of Judge Learned Hand, who said we place our hopes too much in laws and courts and constitutions. These are false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women, and when it dies there, no law, no court, no constitution can save it. And we like to focus on what the Supreme Court did in that decision, and I'm happy for what the Supreme Court did, but where did that Supreme Court opinion come from 30 years ago? I'm proud to say that one of my classmates at Harvard Law School, Evan Wolfson, wrote the paper that got the B that said marriage equality was important, and a law professor at Harvard said, oh, forget about it. So that's what gives me hope, is not just what's going to be the courts doing, but what state constitution can be doing with your and my help. The ways our society has transformed, and I know it's not nearly far enough, but when I saw a rainbow fly, a rainbow columns on the White House, and in my church, the Episcopal Church, Washington National Cathedral, I mean, as one of the famous scholars says, there ain't no stopping us now. We have to get out of this mentality, just as African Americans and women had to before, this idea that the court is creating rights for us, and that that's the primary goal. I grew up in the segregated South. You know, Brown First's Board of Education didn't come out just because somebody dreamed it up, and it wasn't implemented for 15 years, and people put their lives on the line for that. When we're talking about the Constitution Bill of Rights, to me, that's what we're talking about, not just the Supreme Court. So we have two more questions, but I'll offer a real quick response. So I'm a big believer in the maxim, de minimis lexanone curat, the law does not stoop to trifles. So I think in some cases, for example, I would take the Missouri Playground Equipment case. That strikes notwithstanding the, you know, the, you know, the Clause of Missouri Constitution referred to. I would take that to be kind of a level of minimal concern as our church is being treated equally with other institutions and serve providing this equipment. I think when you deal with issues of employment, they get dicier. My, you know, I think churches and self-selecting groups may have some right to discriminate on the basis of attitudes many of us find prejudicial. I mean, I think that is a serious clash of norms. So I, you know, I think one does need a kind of ladder or whatever, you know, one needs a scale. What's the relative seriousness of the practice being questioned to, you know, to preserving an essential freedom of religion? We have two questions over here. Yes, first of all, I compliment the many years of erudition that's here on. And so my question is about what was raised earlier about it would seem to me a fundamental question to at least admit to whether language changes over a meaning of time in the Jefferson Memorial. It has a quote on the embelliture that Jefferson said that for the Constitution effectively to remain the same, it would be as asking a man to put on a coat that he wore yet as a boy. So being someone who loves to come here and all that, I don't understand how this idea of strict constructionism can ever function. And on C-SPAN, I saw a program, and I can't quote who the person who said it, but said that in the 19th century, 18th and 19th century, everyone thought that their personal, no one was surprised when a person's life experience was brought into an argument. So there seems to be, there seems to be some kind of truce or some way of deciding whether we basically allow language meaning to change or to follow Jefferson's living Constitution, but that seems to be out of style. Or actually to amend the Constitution. I mean, I'm still, I think amending the Constitution is actually a good response as well. If I might speak just quickly to your point, my view from watching the courts a long time, especially the Supreme Court, is that this originalism that is touted and we are supposed to fear, and again I speak, reply to the previous questioner, I think it's a canard. I really think judges will use the argument that gets them where they want to go. This approaches legal nihilism, I know, but that's the way it looks to me. I clerked at the Supreme Court, worked there for a year, and that's how it seemed to be. So, you know, I think that's not really where the rubber is going to meet the road. That's not really the issue. The rights and our understanding of rights does evolve. Sooner or later the court will recognize that, maybe later than it should. And we do now have this interplay that Jack and I were talking about between state and federal constitutions where there is another place to go and to create more ferment. And to be honest, if enough states do something, the federal actors start thinking, well, maybe they got it wrong. So, I wouldn't be all that is bleak. Legal nihilism brings optimism. I would point on the issue of the Constitution, you know, the evolving standards of decency, interpretation of the cruel judicial punishment clause was actually put in place in 1958. And this recent case in Bucklew, the court simply did not mention that test, which to me is very troubling. Because if you think about interpretation of the Eighth Amendment, there's a case called Brown versus Plot of it that Justice Kennedy decided about prison overcrowding in California applied the Eighth Amendment to that context. And if the Eighth Amendment was static, people weren't concerned about prison overcrowding back in the 1790s, believe me. So, if it remains static, then the Eighth Amendment really loses its teeth to the Eighth Amendment to hold states accountable for behavior that violates the cruel judicial punishment clause as understood by modern jurists today applying. And of course, there's all sorts of problems. We have the internet now. They didn't have that back then. There's a lot of things that you have to, the judges have to interpret the Constitution in a wholly different context. But the words are still there in the Constitution. They have to deal with it. And until such a time as you have an amendment, of course, that's what they have to deal with. That's the rule of law. And that's what's so important for us to remember is we do have a rule of law country. There's rules. And the Constitution is there. That's part of the debate that's going on today. It's worth noting for those who don't follow this issue quite as closely as some of us do, on the whole originalism front, they're actually these interesting, I can say almost technological innovations over the last decade. There's a whole set of practice of what's now known as corpus linguistics because through the digital reproduction of 17th and 18th century sources in Anglo-American printing, we now have a vast body of textual material that's readily available for digital analysis. And there's a guy whose name I'm blanking on, being in Chicago, I want to say downstate in the University of Illinois, who's done really interesting work showing that the meaning of bare arms in the Second Amendment, which is an area I've worked on a lot, as used in the 18th, probably the 17th century as well, is like 99.44 percent related to the militia. It has nothing at all to do with the personal right to carry a weapon for purposes of self-defense. Justice Scalia got that wrong. I say this with some fashion myself because I wrote the historian's brief in D.C. versus L.R., which I think Justice Stevens cited, and I think I actually followed reasonably closely in his dissent. So it's a kind of curious aspect of this. The academic arguments or the normative arguments about should it be originalist or not, and if so on what basis continue, but actually operationally, it's becoming a more complicated exercise. Sir, and then we'll come back over here. Thank you. I just have a very simple question. I just want to thank you all for being here. And it's for all of you. Just as scholars and historians and people that have respect for the rule of law and just law itself and knowledge, just how embarrassed are you at the current occupant in the White House? No, we're actually supposed to be fairly nonpartisan up here. So you could ask us after the session is over and we can vent to our hearts content. But it's rare that I say that question is out of order, but under the circumstances, Susan, this is the best response. We thank you for it. I was going to say something about Amalia earlier, but that's not true. All I would say is nobody stays in that office by themselves. So it's never just one occupant. However far on the spectrum, they may be that you agree or disagree with. Sir. I was fascinated that you brought up the issue that we haven't had any amendments to the Constitution in many decades. My own personal hypothesis, I tend to see everything from a political standpoint, since that's what I do for a living. But I think it's the failure of the ERA that made it politically untenable to amend the Constitution here in the late 20th century. Do you live in Virginia? I do not live in Virginia. I live in the district. So we have other issues. But I grew up in California, which is a fascinating place that has changed significantly on a political sense in even my own lifetime, let alone my parents. But I think that it's important. I think that that is important for a legal discussion. I'm interested to hear what you guys think from your own perspectives, because since the failure of the ERA, obviously there's been significant... It hasn't failed as the point of trying to... Correct. It has not yet succeeded. The focus on interpretation at the Supreme Court, of course, depends entirely on the only unchangeable electoral districts in our system, which are the states. Every other electoral district can be changed at some point and is supposed to be changed somewhat regularly, but the states are permanent and cannot ever be changed. And the Supreme Court is only ever determined by the president, which is partially democratic in through the electoral system, but mostly dependent on the states and, of course, the Senate, which is entirely dependent on the states and now has no connection to the state legislatures who do not elect their senators, not senators senators. So the interpretation of the Constitution is determined through the least democratic of our electoral entities being the states. So I was wondering if you have any sense from being Bill of Rights scholars. The Bill of Rights doesn't talk much about our electoral systems and their effect on how we go about interpreting our constitutional rights and whether or not... How we go about changing our interpretations of those rights. Do you have any thoughts on what the Bill of Rights can help us to make our politics better, to make our electoral systems better? Well, I mean, I'm not sure where Linda stands. I'm a big advocate of Article 5 amendment to get rid of the electoral college, which I criticize pretty regularly on a four-year cycle on a variety of reasons. Yeah, it's important to know that the modern structure of voting, it's not the Bill of Rights, but it is 1804. I mean, the 12th amendment comes along pretty quickly, you know, corrects an obvious oversight in the framers' expectations. It's important to notice. I mean, maybe I'll just take a little liberty here because I've written a lot on this subject. I think it's very important, you know, for us and our audience out there assuming it exists, you know, to recognize that when the framers created the presidency, that was the single most novel institution. It's not the Supreme Court, you know, it's not having a bicameral legislature, maybe not even a system of feralism. There was no real precedent, P-R-E-C-E-N-E-N-T. I want to make sure I get the spelling correct. There's no real precedent in 18th century thinking for having a national Republican executive. And it didn't really matter for the first two elections, so long as George Washington wants to be president, it doesn't matter what rules you use, you'll always get the same result. As soon as you get a contested election in 1796, then you get a lot of innovation. 1796, 1800, and actually continue elections. There's a lot of manipulation of how electors were actually chosen. The system doesn't really settle into an equilibrium condition for about another quarter century or so. So that's, in some ways, that's a great counter-example to where we are now, meaning that, you know, there's a rich body of experience that accrues in 1796 and 1800, and it provides, you know, a strong empirical framework for serious constitutional reform that's effectuated by the 12th Amendment. You know, the great question we face today is, you know, we have effectively abandoned the amendment system. And I think a lot of times the reasons, one way to say the reasons for that are superficial or to quote Justice Scalia, we're too faint-hearted on this matter. On the other hand, you know, we have to weigh seriously the cost of constitutional change. And I think particularly at this moment in American history, you know, I'm a great fan of, I'll shut up in a second, a great fan of Federalist 49, which is a famous essay of Madison's where he criticizes Jefferson's proposal to have periodic or occasional conventions to resolve constitutional conflicts. It makes a remarkable point there about the importance of veneration, is the operative term, the importance of having veneration in a constitutional system. And he says in effect, look, it's not a bad idea theoretically to have constitutional change subject to popular amendment. But he says, you know, the more you do that, the less reverence, deference, or veneration you'll feel for the constitutional system more generally. And it's, you know, it's a normative problem that I think we are literally wrestling with at this moment now to think, what are the, what's the residual strength in our constitutional system? Can we contemplate constitutional change? Or if we get to a constitutional crisis, how do we resolve it? And I think we have to be, we want to draw broad generalizations for American history, which actually I think I don't want to do, but ordinarily, in this case I will. That's a serious question. And if you resort to the amendment process which might actually exacerbate rather than resolve, you know, deep differences or deep divisions within the body of politics, is that a good thing or a bad thing? I don't know. I mean, I think it's really important to have protection of voting rights in this era because if you have a representative democracy, you need to protect those voting rights. And so things like having a, you know, registering everybody when they turn 18, for example, just automatically having same-day registration, those types of things will increase participation in our representative democracy and are very helpful. And when you have people excluding people from voting, that's really problematic. And you go look at the Reconstruction Amendments, right? We, 13th Amendment abolished slavery and involuntary servitude. We had 14th Amendment guaranteeing new protection, and then 15th Amendment guaranteeing voting rights. And we've got to make sure we're honoring those kind of rights if we're really truly going to have a representative democracy. But those voting rights don't alter the populations of Wyoming, Delaware, California, and Texas. Well, the, I mean, the system we have with the system of the Senate where small states get two senators compared to California, I mean, the, Jack probably knows, but if you look at California, the population of California, right, they have the same representation in the Senate as you do in Wyoming, Idaho, Rhode Island. So, but that's- Wyoming's the standard comparison. I mean, the Constitution is very difficult to change in that way. So you've got, you know, one of the things I think is very problematic is the gerrymandering we're seeing where you're creating all these safe districts. I mean, you combine that with the dark money in politics, with the division of the media that you see. And then, if you're not trying to create districts that are the most competitive as possible, you get the skewed outcomes and you get the polarization. And I think if the districts were more drawn by nonpartisan commissions, you would see a much different political system in Washington, DC. But just to get to the problem with the amendment process, it's hard. You got to get Congress to agree and you got to get 38 states. It's really hard. And, you know, the Equal Rights Amendment was a hideous example, but I do think people just look at it and say, oh, I don't have the stomach for that. I'm too old to start that. And that's a tragedy for us. I think, you know, we need to have an ability to address those issues. Yeah, there have been moments like the 17th Amendment where we had direct election of senators. Used to be the state legislature. And that led to a lot of corruption in terms of the appointment of those senators. And so we did do that. But you know there's a movement to repeal the 17th Amendment. I mean, yeah. It's not going to go very far. Well, you know, I used to think a lot of things that we contemplate today wouldn't go very far. I'd like to speak to your example of the ERA, if I may, for those who don't already know. And I'm assuming in this audience, people do know. I remember when I began law school in the beginning of the 1980s and thought and was taught that, yes, there was this disparate standard for, you know, women are kind of in between in terms of strict scrutiny and protection, that somehow we were going to work it out through the courts. And that never really happened. And what I'm really energized by is someone who thought, well, you know, the ERA isn't really going to matter in the hands of whatever current court it is. I'm amazed at the younger generation male and female who said, wait a minute, you didn't mean we didn't have equal rights? And just the sense of moral, seriously, the sense of moral outrage there. And in Virginia, the state where now it's pending and the new Democratic majority has committed to ratify, to being the 38th state to ratify. And then we'll turn to our archivists of the United States who by precedent now is the one who actually is going to determine those states that said that they were vote, does it count, doesn't it count? It'll wind up in the courts anyway. One of my favorite arguments is under Article 5, could Congress even ever constitutionally have set a deadline? Is that even a constitutional process? That's exciting to me that we're actually, we're kind of, we're kind of stank in each other here. I'm just wondering why not, but go ahead. Because, well, we can get to our point. But it speaks to your point about if there's been some fatalism around the ERA, and let's do be a lot clearer about revocation, not revocation. And there's clearly a political impetus there by people to get this added to the constitution. And that's exciting to me as someone who concluded long ago that we probably didn't really need it. Thank you. We have a question over here. So my question is this, I teach civics, love the Bill of Rights, live and breathe it. I'm really geeked out that I'm here with your book tonight, Linda. So thank you. But I'm, my question is specifically, you know, I teach students that they have rights until they don't. And what I mean by that is they're there until there's maybe an intersection with the common good or what's defined as the common good. I don't, I'm not a lawyer. I'm not trained in the law. But I love Supreme Court cases. I don't understand how the Second Amendment, at least from the slave person's perspective, seems really sacrosanct in that the First Amendment has limitations. The Fourth Amendment has limitations. The Fifth Amendment, I'm not done yet. The Sixth Amendment has limitations in order to benefit what we say is better for society than the individual. Can you explain to me in your collective wisdom how the Second Amendment is different or has been seen as different in the history in the courts? No, it's not different in use. But there is no unlimited right in the Bill of Rights period that includes freedom of conscience has never, will never, and that is pure propaganda for someone to say that Second Amendment isn't unlimited right. It's just false. I mean, I think you have to explain it primarily in political terms. I mean, a lot of it has to do with the, I could say the evolution would be really the radical shift in the character of the NRA, the existence of a group of academics who are actually not academics, really, NRA flags posing as academics. Oh, Larry Tribe and I are going to have to disagree with you about one. First Amendment rights, so feel free. Yeah, thanks. Who felt free to, you know, who felt free to legitimate the argument. And also, I think the fact there, you know, there is a segment of American popular culture, you know, American society, which feels very, you know, to put it, to call them enthusiasts in the 18th century since would be right, but where it has different residents, but who are so deeply committed to the idea that there's a body of Second Amendment rights in the plural out there waiting to be articulated. If you take an original's position on this, or at least my original's position, which is actually based on document research, there's no basis for this. The debate at the time was always about the militia. It had nothing at all to do with the personal right of self-defense. Justice Scalia's opinion in DC versus Heller, which is the seminal case, is on historical grounds just poppycock. But, you know, but on the other hand, the politics of this is so deeply entrenched, or the politics of this has become so intense. My safety in a classroom is because of popular culture, whereas we don't use that same litmus test with free speech. I'm offended by pornography, but just because there's a great amount of us that are doesn't mean we get to take that right from someone else. I understand your explanation. I just don't get how there's a different pathway with this case law. Well, I'd like to add that this debate around what a right of the people means, which is also part of that language, began with a very liberal law professor, Samford Levinson, who still is very productive on his interpretations of he's a civil libertarian. He would be rated very liberal, and he's the one who wrote the article that really started a sea change amongst constitutional scholars, whom I respect, such as my professor Larry Tribe, who also turned his point of view on this, and myself as a constitutional scholar, which is when you look at the language in the plain meaning of the words, it's a right of the people. And that, what he said was that the right of the people means, let me finish please. When you look at across the Bill of Rights, when we talk about whether it's the First Amendment, the Second Amendment, the Fourth Amendment, the Ninth Amendment, the right of the people, that when you're a civil libertarian, we're saying those rights attach to individual people. Now, I hear your point about what the extent of that right is, but before that, the idea that there is no individual attached to that right, that it's purely collective, and that's all it means. I think there's a defensible legal argument that certainly the ERA, the NRA pounced on, but it was Samford Love, the liberal people made this argument, and one of the, if you go back and read the article what says, and maybe this will calm the NRA down, now those were prophetic words, but it was made, it's like, well, if we treat this seriously, but we treat every other right in the Bill of Rights, that it is attached to individuals. That's where it came from. So I have two quick responses. Sandy Levison is a good friend of mine. Yes, and I know him too. He would not object at my saying this. Sandy is an intellectual, is essentially a provocateur. His piece there is not based on a sustained examination of the evidence per se. It's let's assume that this is the case what follows from treating the Second Amendment in this way, and I think of all the essays called the Embarrassing Second Amendment, it's the single essay Sandy should be most embarrassed about having written because he never considered the intellectual consequences of his legitimate exposition. Second, on the substance point that Linda just made, all you have to do is open the Constitution and start reading Article 1, and you'll see that where Article 1 says the House of Representatives shall be elected by the people of the United States. No one reading that document in 1787-89 or 1791 would have said, when you say the right of the people, that means all persons. Because after all, it fell to the state legislatures to determine state by state who qualified as part of the electorate of state. The House of Representatives will be elected by the people. It's not a blueprint for universal suffrage. It certainly doesn't have anything to do with gender or race or class. You can talk about the people themselves having the right and still differentiate who gets to exercise it and who does not, or on what basis can that right be exercised? Well, as the Supreme Court has held the... Yeah, I'm talking as a historian. Well, and I'm talking as a constitutional scholar, so hopefully we can find some overlap. But when we're talking about rights creating documents or rights acknowledging our documents as we're talking tonight and looking specifically at the Bill of Rights, we don't have a constitutional right to vote in the rest of the Constitution. That's part of why I'm voting for the National Voting Rights Amendment to give us that right. The right of the House of Representatives is chosen according to the most numerous branch of the state legislature. So any state that decides who knows how we're going to choose our most numerous branch, I want us to have a true constitutional right to vote. So we think that's a wrap according to our authority in the rear. We'd like to thank you all for coming out this evening. We hope we've left you more informed at the end than you were at the beginning. God willing. Thanks a lot.