 Yeah, time for another constitution and I don't know if that's a full statement or a question, but that's the statement of our show here on history is here to help and Peter Haffenberger, history professor, he's here to help us help history and and Andrea Freeman is here to help help both of us. But, especially from a legal point of view, in fact, in that regard, I would like to ask Peter to say hello and also introduce Andrea. Wouldn't that be good? That would be nice. Hello. Welcome to everybody. Professor Freeman, thank you very much for joining us, particularly at the last minute. Let me just briefly introduce you because we're more interested in what you have to say, but for Freeman is a full professor at William Richardson School of Law, which I think you all know is a proud jewel of University of Hawaii at Minoa. She has published extensively currently working on her third book. She is returning Fulbright Scholar, so much to her own acclaim and also I think UH is acclaimed. It's wonderful to have Fulbright scholars here. We've asked her today to talk about what Jay was tentatively in his tentative way, articulating as what we might say, the constitutional crisis in which we now see ourselves. It sort of means that I think a fair number of people see themselves. So we've asked Dr. Freeman to help us figure out, well, first of all, I mean, is this a crisis or not, right? Sometimes when people say that it isn't really and Dr. Freeman had not only teaches con law, but has a very profound understanding of how we might rethink the Constitution. So welcome. We're looking forward to your contributions. And Jay, my old friend, take it from here. Okay, I have a tough question for you. Why don't we just leave it alone? The Constitution, just leave it as it is. Leave it as it is. Sure. Let us muddle through on what the founders thought was the, you know, the essential technique. I think what we need to keep in mind is that the founders never expected us hundreds of years later to be relying on that document to govern ourselves now. Right. They wanted the Constitution to evolve. They just even couldn't conceive that we'd still have originalists, you know, we'd have people thinking, well, what were you thinking back then? Because they knew that wouldn't be relevant. Well, we had 27 amendments already, some of them more profound than others. But, you know, if we if we stop right here and maybe wait for a groundswell of interest in other amendments going forward, you know, in other words, do what we've been doing for 230 somebody, you know, would that be okay? I guess we have to ask ourselves, is it working? And I think most people right now would say it's not working. Right. So that implies a need for change. Okay, so the answer then is we do need to do something. And then, you know, then the question is, and this is raised by the article that you guys have seen Don Frazier in the Hawaii News Network. Should we use the targeted amendments or should we sweep the whole thing out and have a Hawaii constant, a Hawaii style constitutional convention where nobody knows what's going to happen? What do you want to jump in or do you want me to keep going? Okay. Yeah, I think the problems are too fundamental to just keep adding amendments. Because the problem is the Constitution is deliberately vague in the areas that I personally consider most important, which is the individual rights section of the Constitution. We just don't have anything circumscribed, so it's far too open to interpretation. So I'm inclined to scrap the whole thing and start over again with more of a rights-based Constitution, which would be very specific about which rights are granted to the people, and then we can go from there. Okay, but let me ask this, and I do want to go through all of those with you, but I think at this moment in time, we should pause for a moment and ask about the logistics of doing that. Hawaii constitutional conventions have not been terribly easy. We haven't had one since 1978. And, you know, query, how would that work on a federal level? It sounds to me like it would be a melee in the fullest sense of the word. How exactly would we scrap it and start fresh? All thoughts on that, please. Welcome, right? That is the challenge, because the content that we would end up with, of course, depends on who writes it. And that's the problem we're seeing now, right? The content of the Constitution, how it's interpreted, is based on who's interpreting it, and that's what we want to avoid. Could you explain for our viewers what you mean by the problem of rights in the current Constitution, and what you would envision appreciating Jay's melee and everybody swinging whatever hot dogs they happen to be eating? Could you help us figure out what's wrong with rights? Because everybody is always claiming the Constitution protects their rights. What's wrong with this Constitution in that sense? And then how would you, let's, we'll talk about the mechanism some other time. We may have to get Milner in here to talk about. But what do you, as a scholar, think of as the new Constitution would protect rights either differently, by definition, etc. So what could you put wrong, and what would it be replaced with? I think I know what you're asking, so I'll take a stab at it. So, you know, to go to the heart of probably the most controversial issue right now, dogs and, you know, abortion rights. So the problem with abortion rights is that they are not specifically written into the Constitution. They come from what we call the due process clause and one word, which is liberty and an interpretation that was sort of constitutionally or at least legally questionable when it was made, because it did write a lot into something that is only one word, right, implying a right of privacy, implying a right to intimacy, right, you know, the protection of intimate parts of your life. That's not written anywhere. And that's what the justices now have relied on. And in that sense, they're not wrong. But we do have a belief, as you just said, that the Constitution does protect some minimum, right, some floor of individual rights. But that they're not written into it, except for things like, you know, a right to free speech, which again is far open to interpretation. So what we need to do is to get from a Constitution that is so vague, an interpretation that is relying on how are we going to define one word. And since it's not defined, we're going to go back and do our own interpretation of history, of tradition, of things that are completely up for grabs in terms of how you want to interpret them, and then say, that's what the Constitution demands. That makes it too vulnerable and susceptible to the political whims of whoever's doing the interpreting. So how would you determine which rights, though, would be embodied in this new revised, but not even revised, new Constitution? Like, how would you determine whether privacy of the body is going to be a right or not? Right. I mean, one potential way of looking at it is way that some people have approached it now, looking at polls, you know, looking at what we understand to be the general desire of our population, right? We see people are in the majority in favor of those types of rights. And then there are some rights that I think we wouldn't even have to question, a right to shelter, a right to food, you know, certain basics, health that are not even guaranteed by our Constitution, but that every person, just as a matter of human dignity and being alive, deserve. Right, which is an assumption about what is the public good and that housing is a public good. It's fascinating. I don't know, Jay, you think it's fascinating. I think it's fascinating. I think there's so many things like that. Because as a British historian, right, I'm used to an organic Constitution. So, you know, one might even propose that we scrap the idea of a single document. And our constitutional future does not rely upon a single document, but takes much more of a British or British influenced. I'll just throw that out there because I can see the difficulty of the majority sense of rights in 2022 may not be the majority sense of rights in, I don't know, with climate change. Let's go to 2050 and see when it all ends anyhow. So I think that's fascinating. I mean, what mechanism would you include then for adding rights as we proceed along? Right, you suggest Peter and Andrea that some of the problems you've identified and we have many to go can be resolved by Congress overnight. Congress could codify Roe v. Wade. Congress could straighten out the voting rights. It could adopt like the United Nations adopted last month, you know, a grand profound statement that everyone is entitled to a clean environment. It could fix gun control. And so you could take this kind of statute by statute approach. Maybe that's like the British system and clean everything up statute by statute. I think we have problems there, though, because, you know, what we've enshrined in our jurisprudence around the Constitution is that the courts, Supreme Court can say that a law violates the Constitution and is therefore void. Right? So even if these things become codified, if challenged, Supreme Court can still strike those laws down and say, no, sorry, it's unconstitution. So let me go to one other thing about this. And that is that we know on all the issues I just mentioned that the country is not of the same mind. We have a clear divisiveness on, I mean, a hard divisiveness. My bubble, your bubble will never agree divisiveness on many, many important rights and other issues, including mechanical issues, including legal issues. And so if you couldn't get Congress to make those changes, how in the world could we ever get anybody in this country to come together on fundamental points? And I think it is an impossibility to agree on any of the things that we are divided over. And when you have that kind of situation, what you usually have is a remaking of the social compact, of the legal compact, where the members of a jurisdiction agree that this is the way they will govern themselves. And that is often accompanied by war and bloodshed. How in the world are we going to get this together? I totally agree. We need to get it together. We need to take a clean sweep and start from scratch. But doesn't that involve rethinking the social compact and having the two sides agree by arms? Is this a call to arms? Is this what's happening right here? That's a question. Okay. You're not trying to incite a revolution. No, we don't have any weapons with nail guns that we're going to fire into offices. Let me take a slightly complementary path, which is recognizing the significance and importance of your overhauling and starting afresh. Let's talk slightly smaller. I just wanted to get your sense as an expert about what your views are. So one of the issues is, look, the court is a problem, as you suggest. But it's a problem that could be resolved with a few measures. So I just wanted to do a quick, as Senator Graham would say,orama. What is your view, for example, of enlarging the court? Yeah, I'm in favor of that. Okay. That's easy. All right. What about this notion that there should be an age by which one should retire? Absolutely. As a person who clerked in federal courts for four years and have met many a judge, I think that's a wonderful idea. Okay. As long as it doesn't cover professors. All right. There's no actually. I'm perfectly willing to retire. You're very young. Me and I are the AAARP members. You're a youngster. Okay. The third one, which I hadn't really thought of before. The other two are kind of obvious points, but that each president during a term, regardless of whether somebody passes away or retires, gets to appoint somebody. Does that sound reasonable? Sounds fine to me. I mean, I know you have the big macro. Yeah. No, I really appreciate that. I think it's fascinating. As Jay suggests, we should have you come back though to talk about that because that really does involve the social compact and the public good. It's a fascinating topic. Let's kind of hold on to that and talk about it. Also, you would think that potentially by changes in the Supreme Court, access to numbers, et cetera, some fresh blood, we might in a macro way be able to resolve some of these issues? It might be more balanced. More balanced. If it doesn't solve some of the big problems. But I'm thinking along, look, I mean, your claim is a common claim among historians that the only time we've seriously rethought our constitution seriously, and Linda Collie talks about this in her book, We're Not Alone, is war. 13th, 14th, and 15th are not there without 700,000 dead Americans. While I appreciate the macro needs, I also think this is a society and the world today with globalization is a society where order is the top priority, right? So how are we going to get reform while making it still feel that people are living in a social order? I mean, that, you know, worries me. I hope, sorry. Sorry, go ahead. Yeah, no, I mean, I hope we don't need that many people to die to change, right? But I think it's sort of a profound insight into what is happening with gun control laws because we are seeing on a, just a smaller level, right? People being killed every day because of our refusal to limit gun to put end to it. And they're killing themselves. I mean, suicide is one of them. Yes, but also children, right? I mean, I would think if there is one thing we can all agree on is we do not want to fear when we drop our kids off at school every day that they won't come home because they'll be murdered. Okay, so that leads very easily into a second branch of reform, which is the Electoral College. Oh, it leads to the Second Amendment. Right. First, it leads to the Second Amendment, which is not well drafted. I mean, what kind of grade would you give to one of your students who drafted the Second Amendment as it is written? I mean, the language has changed. The standard of drafting has changed. The way we speak to each other has changed. The constitution could be improved all across the board by, you know, updating the quality of the language. Okay, so that's the solution. We'll get a group. I wouldn't give a very good grade to the people that have interpreted the way that they have now. Instead of a Senate parliamentarian, we'll get a Senate primary. How do we take away from today? We'll call it the DC Comma, not the Oxford Comma. But as you know, because of your research and your reading, et cetera, among the major issues is what to do with this Electoral College. And that, to a certain degree, is connected to guns, right? Because the states with the disproportionate amount of power, Electoral, with the Electoral College are really the places much more likely to allow folks to walk around. So what is your thought as a constitutional expert about what seems to be an atomism, but certain people still like the filibuster hold on to it? What's your view about if we should do anything about the Electoral College? Yeah, I mean, these are vestiges of enslavement, right? And so I think we need to just kind of purge the constitution of anything that was a result of compromises made for certain states to preserve their economy, you know, and to try to keep the power that they had through enslaving people. So one of the things that is in that article in Hawaii News Network is this whole notion. And it was a fundamental problem at the beginning of the country is what extended the rights of the majority, Trump, and I hate to use that word, the rights of the minority, and we're still playing with that. And in fact, the rights of the minority seem to be alive and well, even in the face of the rights of the majority. And I guess the question I would ask you in that regard, Andrea, you know, can we get rid of this thing with the rights of the minority? If you are in the majority, you should run the country. That's the way it is. And if you want to run the country, then get into the majority. But you can't have the rights of the minority twisting the rights of the majority. And that's exactly the flaw that Trump has been playing with in McConnell since the beginning of their terms. But this is a problem because it really depends on how you define majority and minority, right? Because when I think about minority, one of the groups that I might think about is trans individuals, right? Transgenders. So they're in a minority, they need their rights protected. The majority would not like to protect those rights. So there are some situations where we cannot shut people out because they're in the minority, right? We need to have ways to preserve. The problem is when the minority that's controlling is not the minority you identify with or agree with, then it looks like more of a problem. I think the other, yeah, the other issue I think is when we talk about rights is we have this zero sum game mentality, right? That if I give you a right, I'm taking a right for myself. I think that's a real existential problem. And I do blame, in part, the founding parents for that, the notion that they're, I need to sacrifice. Now, they would have agreed because that's the nature of a social contract. But it seems to me that's become free. These are my rights. You have no, you have no rights. My rights mean, okay, I'm taking rights from you. And it's been work done by this more philosophical line. And it may be in keeping with your new constitution that we need to rethink the notion of rights. So it's not a zero sum game. So like the majority, the majority who may not want to provide rights for transsexuals need to understand transgender people. Transgender, I'm sorry, for transgender, I apologize. We can understand that in granting and protecting that community, they are in fact protecting their own. That's what worries me in the social frame, that it's my rights to hell with yours. And you know what? I know I'm depriving you of rights, but it's my right to deprive you of rights. Yeah, I think we're conflating rights and power. You can talk about the trans and that's certainly a matter of rights, you know, individual rights. As we have known them constitutional rights, rights for the person. But the rights that I think we're to focus on, which control everything, is the decision making rights, decision making power, the electoral college, and so forth. Can you talk about that? Well, one thing I think we should mention when we're talking about those kinds of rights and power is how the court very early on in this Marguerite versus Madison case that is, you know, considered fundamental to constitutional law, it's taught in the first class of constitutional law in almost every case, situated the ultimate power to interpret the Constitution in the Supreme Court. But it did not have to be that way, right? That power and that decision making could be shared among the branches. So I think that's a reform that that we should bring up and we should think about because then we have the, you know, the good parts of saying, okay, we need a branch that's not political, even though, as we can see now, that is not the judiciary, the judiciary is very politicized right now, but ideally it is not to balance some of the representation of minority interests, such as what I brought up and what you've, you know, distinguished. But we also want to think about Peter, as you said, the majority, you know, that the majority should have some power and there we're looking at the legislative branch and then we also want to look at the executive branch and say, you know, we have not just a president, but we have all these agencies who are actually running almost everything in the country and so have a lot of insights into how things should be run and why can't we have more of a balance between those three branches instead of situating it in these nine individuals. So how would you see that's very important, I mean, separation of powers yet working together, etc. So I mean, one argument is that basically since Congress can't do anything by default, right, almost by default, it's gone to the courts. How would you see that in the last couple of minutes working out practically? Because as you say, Marbury, Chris, Madison is the first year and kindergarten for the first grade and separation of powers, etc. So how would you see that in your new constitution playing out? Yeah, okay. So now you're back to mechanics, so I think that's a different conversation. I'm going to start with broader principles and ideals. But that's where it always winds up. It always winds up as Peter said at the outset, this is a crisis because the existing constitution, I totally agree, is not working and people can drive trucks through it and the country is suffering mightily over it. But there's no easy solution to amend it, to change the fundamental points that two senators per state is baked in. You're very hard to amend that. And for that matter, amendments are hard, especially when you have a divided country. So we always come back to the fact that this is a crisis, the country is in a crisis and there's no easy way to get out of the crisis. And the conversation about what parts are working and what parts are not working and how you would change them is, may I say this, Andrea, it's almost futile. I mean, F-F-U-T-I-L-E rather than Peter's definition of futile. Or maybe both. It is very much, very much, but we just have a different kind of aristocracy. Yeah, so this has been wonderful. Andrea, what would you like to leave? We have a minute or two. What would you like to leave the audience thinking about? And we are definitely going to have you come back and maybe we'll get you together with Bill and her knobby and we can have a nice chat about what a different constitution would look like. But what would you like to be the takeaway for our thousands of listeners? I just want everyone to understand that when the justices say, this is written in the constitution, this is here, they're usually lying. Maybe take a look at it yourself and understand that you have just as much insight into what it might mean as they do. Okay, that's a wonderful way to end up. Thank you, Jay. Thank you, Peter. Thank you, Professor Freeman, very much. I think we've learned today, as we have learned before on similar shows with Peter and me and others, is that the country is very complex, much more complex than the founders thought. How could they know? And it is getting more complex on a social and legal level and to address all the issues that come down the pike is really a chore. And we have to get our act together if we are to survive. And so, Andrea, you and your students and the people who might participate in rewriting certain provisions or in creating a convention over it are ultimately going to be among the most important people to save us, all of us. Thank you, Peter. Peter Haffenberg, history professor, Andrea Freeman, constitutional law professor. Great discussion, but it is only in a very complex world, the only, the very beginning. I hope you agree. I know you agree. Thank you so much. Thank you. Thank you. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at thinktechhawaii.com. Mahalo.