 Welcome back to Think Tech. I'm Jay Fidel. It's a Thursday morning. We're talking about history lens. We're talking about history of the United States. The title of our show is Fixing the Constitution to Resolve Our Competing Narratives. That's complicated. My brother joins us from Yale, Gene Fidel. He teaches there. David Louis, former Attorney General of the State of Hawaii, joins us from Honolulu. Welcome, gentlemen. Hi, Aloha. I want to start this by reading out of an essay, Gene, that you sent me. Before you do, Jay, let me mention I'm teaching now at NYU, your alma mater. Okay, yeah, alma mater. That's a step up. Okay, so it's not enough simply to get Trump out, undo what he has done, and make some reforms, like who came up with Bill back better. We should recognize, thanks to COVID and Trump, that our government has become dysfunctional. And that our national narrative, which won several New York Times had a project on that, is spent. What is our national narrative? We are entering a third chapter into the American story, a fourth that you consider 1619 to 1776 as a colonial period with its own narratives, fashioned by Puritans and the Board of Trade in London. And we need a significantly new narrative that takes account of not only our important respects, nasty history, but also our changed demographics and heightened expectations of social justice. Okay, let's stop there. There's more to the narrative. But I want to get your thoughts about, you know, A, what periods we've been through, whether we're in the third or the fourth chapter now, and what and, you know, how American history as looking back on the United States, how it has evolved. Where are we in terms of the American narrative? Gene, you start, you wrote the essay. Right. Well, the point about the narrative is, the narrative is the organizing myth. And, you know, myth doesn't mean it's just a fairytale, but, you know, it's what people buy into and feel deeply. The organizing myth around which society forms and that breeds life into what would otherwise be a mere collection of individuals. So, step one, I think, is to try to identify the epochs in the country's life. And every step of what I'm about to say is contested territory. And David Louie can help me on this, but I'll just give you the very short version. The first epoch is, I can't give you the beginning date for the first epoch. I can give you the end date. The end date is July 4, 1776. The beginning date is itself a function of what your narrative is, because for Black people in America, the beginning date is 1619. For other people, it's 1492. For other people, namely the original inhabitants, it's, you know, creation. For people in Hawaii, it's, you know, whatever it is when society coalesced in what we call the sandwich islands, right? So, you know, that's step one, phase one. And of course, you know, you would identify different epochs since you all are in Honolulu. I want to respect that and the notion that the epochs are somewhat different for people in Hawaii. The epochs may run to the consolidation of power by Kamehameha the first, or they may run to the great Mahelei, correct my pronunciation, they may run to the end of the monarchy, and they may run to the end of to statehood, and so forth. So, you know, that's a somewhat different slicing of time. But for the United States as a political entity, as I say, epic number one, notionally ends on July 4th, 76. Epic number two, I would say ends at Appomattox courthouse. Epic number three is ending now. And the question is, what will be the nature and character of epic number four? So that's sort of setting the stage. Now, just a word about narratives. The fact is that you can have more than one narrative operating at any given time. So that, for example, you could have the narrative of the melting pot, right? You could have the narrative of liberation. You could have the narrative of America first. You could have the narrative of universal suffrage. And so forth. And these themes do not begin and end at the same instant. Some may be peaking at a time when other narratives, competing narratives may be reaching the bottom. And by the way, Native Americans have a whole other narrative, which we shouldn't neglect. And Native Hawaiians ditto. Native Alaskans yet another narrative. So it's a very complicated process that doesn't lend itself to mathematical certainty. But I think most people who are willing to look at the long run of the American state can identify both the function of narratives, keep the foreigners out, bring the foreigners in, give me a tire of your poor, build a wall. But right now, Gene, isn't it all focused on just two narratives? One is the people who are attracted to Trump and the other people who are not attracted to Trump. And that's what's coming up here on November 3rd, isn't it? We collectively are going to have to make a decision about which narrative to take. Well, no, but I don't think President Trump, I don't think there is a Trumpian narrative. I think Trump exemplifies some themes that we've seen over American history. I mean, if the Know Nothing Party still existed, it went out of business, I think in the late 1840s, early 1850s, he'd be a Know Nothing president. I mean, with initial caps, Know Nothing Party president. So there's nothing particularly new there, the notion that there's what is it, the paranoid strain in American politics is a famous essay. You know, that's been there for a long time. So he's not novel, except to the extent that we now have a combination and it's a very toxic combination. I'm almost finished, David. He's almost finished, David. I need to hear from David. But we now have a toxic combination of that narrative with a lunatic as its representative. Silence to me like this is a combination of complex and simple. What do you think, David? So, you know, I totally agree that there's a narrative going on right now and that it is important for the country, for the nation to have a narrative. I like quite frankly, Trump's narrative make America great, or let's go back to the good old days when whites were supreme and everybody else knew their place, including women and minorities and people with color. You know, that doesn't do it for me. But currently, the Dems narrative is we don't want Trump. And that's not good enough for me. Okay, because that's just being anti-Trump is not a good narrative. I think the narrative ought to be, and I quite frankly, I don't like Build Back Better. That came from a 2015 UN disaster recovery conference in Sendai, Japan, where they came up with that slogan. And yes, we are talking about getting rid of Trump and that is disaster recovery. But it's not really a good slogan to me. I think the slogan really is, or should be, the better angels. Or what Bill Bradley said, that President Lincoln said, which was can't we all do better? And really, it's to me that the narrative that I think has resonated throughout American history, sometimes more, sometimes less, is let's all achieve and let's all do something good for everybody. The greatest good for the greatest number, which is sort of the underlying foundation of good government in my mind. So I think that's the narrative that should be pushed, whether or not we're going to get there. I don't know. Narratives are, simplifications. I agree with Gene. They are myths. They are rallying cries so that you can simplify things and appeal to the base instincts of people so as to engender action. It comes back to ethos, pathos, and logos. And it's pathos, which is let's get right to the emotional resonance of something so that people will not think critically about what's going on. And so that's what narratives are. But they do have a useful place. And so I hope we can come up with a new narrative for the American dream. Well, I hope you'll agree with me. We're at an inflection point and we have competing narratives now that are more troublesome and are in need of resolution. Let me read, Gene, the third paragraph of the essay. We need to really work on the racism piece, on policing, on limitless military spending and foreign adventurism, equal suffrage of the states in the Senate and the Second Amendment are our enemies now. The latter can be fixed to some extent by changes for the better on the Supreme Court. But the former is well and truly baked in and therefore requires a new constitution. I'm sorry to say, and this is really an important part of our discussion, that I would predict civil disorder. So tell me, how do the narratives raise their heads now and require us to consider amendments that could be sweeping? Gene? Well, let's start with the equal suffrage of the states in the Senate. And a word of history here that you gentlemen both know very well. There were two things in the 1787 Constitution that were outside the amending power. Right? The key element of the Constitution is how you change it. And the two things were, number one, Congress could not tinker with the slave trade. They didn't use the word slave trade, but that was one. And that provision was untouchable until 1808. The other provision was that the equal suffrage of the states in the Senate could not be tinkered with ever. That is there. And as long as we're under the 1787 Constitution, we have to live with that. Now, are there workarounds for that? Yes, there are. For example, I spoke to a gifted friend the other day about this, and he said, well, California could be split into several states. And the problem, and then you wouldn't, I'm now going to pick on a state with a small population. It is very difficult to explain to a person from California why Idaho has whatever it is, three or four votes, you know, three or four votes in the Electoral College. And remember that I think four of the last five presidential elections have gone to people other than the, am I right on this? There have been repeated instances in which the winner was not the winner of the popular vote. Mr. Trump being the most recent example of this, but it's happened before. And with some regularity in the late 20th and early 21st century. So there is a problem, particularly, and here I'm going to play lawyer for a second, since the 14th Amendment, we've had equal protection of the laws. Since the 60s, we've had one person, one vote. It was originally one man, one vote, but you know, now it's one person, one vote. So there's a notion of equality that everybody should have roughly the same say in the operation of this polity. And the equal suffrage of the states in the Senate is wildly inconsistent with the notion of equality, which talk about a narrative, the notion of equality since the 14th Amendment was ratified. So you've got this, it's like an orchestra where everybody's playing Mozart, but there's one guy beating on a garbage can over there and you can't make him shut up because he's baked into the music sheet. Let me insinuate this provision, which is the very end of Article 5 of the Constitution. It says, in the Constitution, it says, when talking about amendments, it says, no state without its consent shall be deprived of its equal suffrage in the Senate. So you would have to, you know, somehow turn that upside down in any amendment that would change the, you know, the arrangement in the Senate. No, no, what you would do is simply have to somehow negotiate the addition of states by division. Now you couldn't break up California without, I'm not picking on California, my daughter lives there, but you couldn't break up California without its consent, but there's no reason you can't break up a state. For example, Virginia was broken up during the Civil War. Right? It's true. There was one state and it became two states. So, you know, that can be done. That can be done in theory. But, you know, how would you carry that out? I mean, it would really have to be, you'd have to have tremendous political leadership on a national level in order to bring that over. Now, the one other thing, just to wrap this piece of it up, there's another thing that you could do, which is you could create two new states or a couple of new states without, you know, cutting up California. The District of Columbia could be made a state. Puerto Rico could be made a state. Puerto Rico has a larger population, I believe, than at least one or two or maybe three states. So there's a certain logic to that. So there are things short of tossing the whole thing over, but those things are launch shots. And it's not a surprise that the Republicans have basically resisted the creation of the District of Columbia as an additional, as a 51st state, because they're certain for some reason it will be a democratic jurisdiction. I don't know why they say that. Where would they get that idea? So if a state is created, both houses of Congress, its legislation, have to agree, and it has to be signed or passed vetoed by the president. Let's see. I don't think that you would need a constitutional amendment. No, the standard would be less than a constitutional amendment. David, what do you think about all this? Is there a solution on this senatorial problem? Well, I do appreciate the structural problems, the electoral college, the Senate, all of those things. To me, the structural problems that exist in the country are kind of baked in. And while it would be nice to try and change those, it is an unbelievably heavy lift to change any of that structure. And so I believe that the efforts are better spent in actual direct initiatives towards social justice initiatives, such as Black Lives Matter, such as reforming police unions, such as balancing the budget, such as stopping wars, such as giving equal rights to women and getting an equal rights amendment. So I would advocate for spending the time doing that, because I think when you go into trying to change the structure, although it becomes a proxy, it is a proxy for whether we're going to have progressive change or not, you can get too caught up in the structure. And then you don't really get to the problem, which is to me, so I mean, I'd rather address the problem. Yeah, you know, it's hard to change the structure chain, but does David's approach go far enough to get where we need to go? Well, David's a realist, and he's lived in the cockpit of political life in ways that I haven't. And so, you know, feel free to discount what I am saying. I also think that we can walk and chew gum at the same time. I think, you know, David's approach is this worldly approach, and mine is the world to go. But that said, I think that there are things that really are very concerning. And I don't think we can assume that it's going to be business as usual in this country in the final days of this administration, as this era comes to a an abrupt and really messy end. I believe that this era is going to end in civil disorder. I'm not happy to say that, but I believe that's the case. I think in large measure we have President Trump personally to thank for this. He has spent years invoking the Second Amendment as if it was a battle cry. He has done nothing to foster intelligent gun control. The Supreme Court, in the case of Heller against District of Columbia, got the Second Amendment so bollocksed up that we're now at the mercy of anybody who can find someone who will sell him or her an automatic weapon. And Trump has basically thrown a match into the gas tank. Somebody referred to him as an arsonist, a political arsonist. And I think that's absolutely the case. And the gas tank that's been sitting around, it's like Justice Jackson referred to leaving a loaded gun around. Justice Jackson referred to leaving a loaded gun around. The Second Amendment has been a loaded gun, no pun intended, a political loaded gun. And unfortunately it's there for anybody to take. And people can wrap themselves in the Second Amendment and claim to be a truthful, faithful adherence of the US Constitution. It's totally crazy. Now that can be overcome through either the Grim Reaper dealing with the Supreme Court and the proper sensible justices being named who will overturn Heller against the District of Columbia. Or it's not written anywhere, aside from an act of Congress, that there can only be nine justices on the Supreme Court. Now court packing is a dirty word in American politics. FDR tried it and it cratered and it was a kind of black guy. But you know, would you be with a president who had really a great head of steam and was an effective leader and if the country was appalled by the amount of gun violence everywhere, be able to overcome that and say, well, we're going to name five more justices and we're going to overturn Heller. Maybe that's the way around that, simply let it work out through time. But in the meantime, I have to say that thanks to the president and his enablers, the transition to the next administration touch wood headed by Vice President Biden and Senator Harris is not going to be a friendly one. Now there's friendly and friendly. I remember that wonderful New Yorker cover about the transition from President Hoover to President Roosevelt 1933. And they're in the limousine driving up to Capitol Hill and President Roosevelt sitting there, you know, a cigarette holder, very jaunty and Hoover is sitting there in a top hat, very glum. What we're looking at for next January 20th is going to make that look like the Tea Party, you know, Love Fest compared to the transition. You know, will President Trump even attend? Will he be standing his ground saying the election was no good? Will Attorney General Barr be continuing to lead the Department of Justice and create so much uncertainty and tie things up on their way to the Supreme Court? And we may not know for quite a while, even after January 20th. Happily the Constitution and the law seem to deal with every contingency. But that may be famous last words. There's always the next contingency no one thought of. But I see here a genuine prospect for civil disorder. And when the President of the United States talks about invoking the Insurrection Act and putting making fast work of demonstrators and protesters in an environment where everybody is on to the teeth. I'm not happy to say this, but I have to say it's at least as likely as not that there's going to be a real crisis. Yeah. David, do you share the concern? I share the concern that there will be civil disorder. I think it will be damped down. I think the military will and the police authorities such as they are will maintain order. There will be demonstrations. There may even be riots, but I don't regard it as a crisis. I believe that there will still be a transition of power. In order for Trump to do what he really in his heart of heart wants to do, he would need the complicity of the military. I don't believe that the military has changed over like the Turkish military has changed over to empower Erdogan to just become a dictator. I don't believe that our military agrees with that and will do that. So I think we will have a transition of power. It will be bumpy. I see bumpy, but I think it'll happen. You've been spending your professional life around the military. You must have thoughts about how the military would present when this crisis takes place. I think the military will be a model institution of American democracy. I think we'll all end up owing another kind of debt to people in uniform. It's interesting. It's not just national defense. They're defending the Constitution. I have every confidence. However, I also fear that we are going to have to rely on them as a sort of firewall. Well, it's hard to be optimistic about the resolution of all this and our lives after the fact. But I want to just ask you guys one more question. So walk and chew gum is something you said which interests me, Gene. Shouldn't we be considering constitutional amendments here? But how likely is it that we can pass one? If you look at Article 5, it's not so easy. You have to have votes of two-thirds or three-quarters. It has to bounce back and forth between the states and the Congress. We've had 27 amendments so far. How likely is it that we could pass an amendment that would reform the problem in the Congress, the electoral vote issue, and the second amendment? How likely is it that we could do that? Well, it's not likely at all that we could get an amendment that would fix the equal representation of the states. The other things that I talked about were workarounds around that problem. The only way you can fix the equal suffrage of the states is actually by getting a new constitution, which would require political violence. I don't mean people shooting at one another, but I mean it would be an act of political violence and you'd at that point enter the second American Republic. Other countries have had multiple republics. The French Republic, the fourth, fifth republic, the Germans, you know. So, you know, we might have to contemplate a second American Republic. I would recommend that everybody who's concerned with these issues read the book by now the late justice, John Paul Stevens, where he identified a number of amendments that he would make to the Constitution. That's a little book, but it's a book of great wisdom and people should be reading it. The other book they should read is Tim Snyder's book on tyranny. That's the more urgent task. Absolutely. David, you know, we had some experience with constitutional conventions in Hawaii, and one of the options in Article 5 is a constitutional convention. In Hawaii, it has not been successful. What are your thoughts about whether it will ever be successful in Hawaii and why not, and whether it could ever be successful nationally? Right. Well, so let's just take the national first. Three letters, DOA. Dead on arrival. Not going to happen because you need too much political agreement. We're not anywhere close to that. So, if you can't pass the Equal Rights Amendment for God's sakes, the idea of reforming the Constitution and fixing things is not going to happen. So, the trouble with changing the social compact, whether it is a marriage contract, whether it is a contract between business partners, is everybody anticipates whether they're going to win or lose with the new thing, and people don't want to be losers. And the only way they become winners is if they can snooker the other guy or the other person on the other side so they don't realize that they're going to be losers. As far as the Hawaii Constitution, we had a con con back in 1976, I believe, or 77, and a whole bunch of amendments passed establishing Native Hawaiian rights. Now, since that time, the Native Hawaiians, at least publicly in the press, have been reluctant to endorse another constitutional convention because they are afraid that there is backlash against that and that there will be a constitutional rollback of privileges and entitlements and things that they may have received through that con con. That was the Native Hawaiians calling, David. Yes, they didn't like what I said. But because there are always winners and losers and people anticipate whether they're going to win or lose, none of these constitutional conventions happen in a vacuum. People are so attuned now to what might happen and the prospect of loss that I don't think anybody's going to agree to a constitutional convention, certainly not in Hawaii and certainly not in the United States. Well, given all of that, Jean, what do you suggest it's the individual citizen ought to be thinking about and doing to preserve the Republic and to preserve the quality of life that he or she has enjoyed up to this point? Well, there are people who would say that this Republic needs a fresh start. People who have studied it closely and traced the 1619 narrative, the narrative that suggests that the American state has slavery in its bones. That's a serious issue that the country has to address. But I want to sort of wrap up if I can on a positive note. The first thing is, I think, and in response to your question, Jay, everybody should vote once. I don't do criminal work, but everybody should vote. There's no excuse for not voting. That's the first point. The second point is, by my rough calculation, the three of us, our ages would be somewhere north of 200 years. There is a new generation that is arising, that has arisen. People like AOC who actually represents part of Queens County where Jay and I grew up, and other young people who are entering politics for whom social justice is a major issue and inequality is a major issue, a driving force, and I'm encouraged by that. They're going to inherit whatever wreckage exists as we enter this next epoch of American national life. I wish them well. Some of the stuff that they're going to want to do is going to be unwise. It's going to be messy. At times it will be ill thought through. But I think they're willing to take a fresh look at that pretty much everything and come up with a better narrative than what is it? Build back better. I think they're capable of doing it. I look to them. I'm excited by them. AOC in particular gave some remarks on the floor that has representatives when some member of Congress insulted her on the Capitol grounds. It's outrageous. I was blown away. I think some of the other young people who, some people who have just been successful in the primaries who are coming forward now, some of these people in the House of Representatives who are phenomenally impressive, phenomenally impressive people, many of them women, many of them minorities, Native Americans. It's just tremendously exciting to me. I cheerfully passed them on wish them well. I got to reserve a little time for David. David, what are your thoughts about that? Do you have optimism and on what basis? Yeah, you know, I do have optimism. My time in government, as brief as it was, I got a chance to see both Hawaii and the national scene. I met all these attorney generals, Republicans and Democrats. And although there were ideological clowns sometimes, for the most part, they were all highly professional, intelligent, pragmatic people. So I am optimistic about the bench of leaders that exists on both sides of the aisle and their ability, now standing our foray into Trumpism, that their ability to come together and work together to get pragmatic solutions. Now, in my view, people do need to vote and people need to be educated. I do share genes, enthusiasm and optimism for young people. But I think it's also extremely important that we are doing a better job to educate our young people about the importance of civic engagement and civic issues. There is too much apathy. There is too much. I don't want to be bothered. It's too complex. I don't want to think about it. Kind of a mentality that some young people have and hopefully better education about why their vote matters and why they need to be engaged will bear dividends. Because to me, the hallmark of a functioning real democracy is an educated electorate who can consider these things and on balance come to a good conclusion. A good conclusion. Thank you, David. David Louis, former Attorney General of State of Hawaii and Jean Fidel, a professor at NYU, was a gene. Thank you very much for coming around, you guys. Thank you for this valuable discussion. Aloha. Thank you, Jean.