 Bingo! Election Day, Historic Day, here on Life in the Law, and we have Dean Avi Seyfried, Dean of the William S. Richardson School of Law at UH Minoa, here to talk about reconstituting the Republic, question mark. You know, let's look at the constitutional implications of this campaign and this election day happening right now around us. Very exciting. Glad to be here, Jay. Thank you. It's great to have you. Good to be back. So, you know, I mean, we all have a million thoughts. You could go to anyone in the world. They have an opinion. I mean, anyone in the world. They have an opinion. I would tell you before, I was in Portugal and I asked everybody, I could find who they were voting for it, and they all had an opinion. They were all going to vote for somebody, even though they couldn't vote. It's because the world is involved in this. It's not just in Hawaii. It's not just in the U.S. It's everywhere. It's all watching this. And so you have implications, you know, that we've never had before. I think that's right. And I think people are very alarmed about one of the candidates for presidency. I just got back from Canada, same thing, although they are a little worried about an influx of Americans. There's a company in Texas, by the way, that will put you together with a spouse in Canada so you can get easy papers when it's time to leave the U.S. So, you know, I've been thinking about a number of the implications here. And I guess the first one I'd like to talk to you about, which has, which does have significant constitutional implications, is the elections themselves. This is different. We haven't had elections like this before. I would guess there's going to be a high voter turnout today, simply because it's been like a football game, you know? Instead of having your beer and pretzels watching the big game on Sunday, you watch it every day. And you want to win and lose. And you want to, every stroke, every point score becomes relevant. That's what you've been doing for 18 months. I think that's right. And I think there's a lot of angst, which is involved in being a Red Sox fan, as I know, but also with selection. But I think people are actually more worried about this election, even than they are about the chances of their favorite baseball team, at least now that the Cubs have finally won. But we certainly had a big turnout when we went to vote this morning. They told us there were more people who were in line to vote when they opened and voted in the entire primary. So it looks like in Hawaii, where there is not much question on the presidential side, I think, people are still turning out. So you mentioned concern. Certainly, I mean, I have concern. I have concern that Donald Trump will win. A lot of people feel that way. But why? Why do I have that concern? I mean, I have my own answer, but why do people have concern about what would happen if Donald Trump wins? I mean, it is profound concern. Why? Well, I think one aspect is something you alluded to, which is that the world is watching, and the world is stunned, if not horrified, by Trump. And I think from a constitutional standpoint within the United States, he doesn't seem to know much about the separation of powers. Someone who thinks that he and he alone can do things is not in keeping with what the framers, to the extent we know what they wanted, had in mind with separation of powers and with federalism. And this comes out, of course, when he blames Hillary Clinton for not doing things with her 30 years in public office. Well, she was one senator. She was in an administration where there are a lot of pulls and pushes and tugs and Congress, of course, also involved in the game. So there are three branches. And one person, at least until this point, has not been able to do things without at least getting some acquiescence by the other branches, if not some support. Well, let me throw this at you. You know, there was Yui Long back in Louisiana, back in the 30s, I guess, the 40s. He was a demagogue. He was capable of painting black, white and white, black. And he did just amazingly destructive things and was corrupt to the end of the degree. But what strikes me is that in order to be a demagogue, you have to be able to convince what most of the people, most of the time, and then you get away with stuff. And I wonder if we have seen a trajectory, a pattern here of a fellow who, if he won the presidency, he would completely dispatch the Constitution and could, and he could as president, which is a more powerful office every time you look, could he just, you know, throw out the baby and the bath? Well, first of all, I don't know that Louisiana voters in the Yui Long moment were typical even for the rest of the country at that time. And I think there's some changes that make your scenario in some ways more frightening, but also some that make it less so. Certainly, there's an information revolution for good and ill. So people often think that whatever they've read, perhaps from their friends, perhaps on Facebook, whatever is the latest news without much sense that it ought to be checked, that there's still a role for journalists, for example, and for getting a second source before you believe something. On the other hand, there is a very active balance of power, one could say. So the president certainly has those powers and can declare in time of war, and we seem now to be in time of war more than we are not in time of war, that something is necessary for the national security interests. And that's pretty scary from a constitutional standpoint. But the Congress and the court do sometimes stand up to the president and vice versa. So I really do believe that the separation of powers matters, the separate branches matter. And so does federalism. So I don't think that even Trump could do that just like that. Okay, I just want everybody to know that next to the table here that we have in our studio, there's a wooden stool, and I am knocking the wooden stool now. Yes, from your lips to God's ears, okay? Does God have two ears or one ear, Jay? I've heard that expression both ways. Sometimes yes, sometimes no. So you know, I want to go to his point about, it's all rigged. And his point about, you know, the government is all, it's all corrupt. And there's, you know, a system in place that has to be changed completely. This is this is fomenting a lot of unrest. And we haven't seen the end of that unrest. I'll ask you about that later. But what effect does this have when you say over and over again, without any good evidence, by the way, I'm sure we agree on that, that the system is rigged, and people begin to lose confidence in the system. After all, we buy into it. It's the social compact. It's the fundamental document and set of ideas on which the country has been based for 200 odd years. And now you're saying no, no, it's wrong. The election is false. The principles, you know, are under question. This is very scary. What effect does this have on the electorate on the country who otherwise might buy in or continue to buy into the Constitution? Well, I think it remains to be seen, as you said, both who wins and what the consequences are for someone who's been saying that he won't necessarily be bound by the results of the election. That is pretty scary. And we know from a lot of countries around the world, both historically and currently, that there is an impulse to say, let's cut through all that stuff, let's just get it done. Often the name of nationalism or even xenophobia, that we are the ones who have the answer with God on our side, Bob Dylan's song. So that's, that's kind of frightening. But I think it's not so easy as I was suggesting before. And the public is I think still I'm an optimist, I think the public still has a balanced view or can be brought to a balanced view within the United States in terms of saying, well, it's not just one person. It's not just one idea. Because as you said, I think there is a lot of belief in the free exchange of ideas and in a balancing of powers. So a lot of people are very troubled and for good reason. A lot of people have been forgotten. It's not because of a particular thing, as I think president to be or would be, Trump would have it. It's for a whole lot of reasons. But we have a real problem in this country. And there's no question about that. And the gap between the wealthy and everyone else is a gaping a chasm and a real problem. So one can understand why he and Bernie Sanders appeal to people who thought there were lots of problems with the system. And I think they're right that there are lots of problems with the system. But it doesn't mean throwing out the basic structure. Yes, and what troubles me, though, is that you can have dissatisfaction. We do have this that we should, we should, you know, gauge exactly how much, but dissatisfaction can be, you know, acquired dissatisfaction, dissatisfaction channeled is using existing structures in order to make complaint about it or change it, or they can be dissatisfaction that leads into the street, where you have violence, or you where you have batteries of litigation. And that troubles me that there's already a sign there's going to be litigation of this election, and no concession. And gee, we'll see. We'll see. Not, not good. Not good. It's going to be okay. Well, settling things in the streets is a problem, for sure, which doesn't mean that there isn't the First Amendment right to demonstrate and to protest. But I guess my own sense is that if you say that's really the answer, then those who are the least well offered, the less well off, don't usually win when it's fought out in the streets. And that gets to a problem of someone who seems to be willing to bully, willing to disparage to the point of making people excluded from his world. So I think we are an inclusive country, actually. And people may have forgotten what an immigrant country we are. And we I think we sort of lose sight of that to set to an extent in Hawaii, in part because we are perhaps a little more pluralistic, and maybe even more tolerant than other parts of the country. But someone who is painting things as black and white as either or as us and them is dangerous. Yeah. You know, I was watching one of those debates and I couldn't stand it anymore. So I switched the channel to turn a movie classics and on turn a movie classics. And this it was so coincidental, maybe it wasn't coincidental. It was seven days in May. If you remember, early 60s black and white movies, Bert Lancaster, Kirk Douglas, and Lancaster plays a member of the Joint Chiefs, who has gone amok, and he wants to bring the president down. And there's one part that was so chilling, where he turns to the president, he says, he says, you don't know to handle this country, you're weak, you're wimp. And, you know, we have to make America great again. Oh, my God, who picked that movie to play in that movie. But you know, that appeals to a lot of people. And, you know, so you have you have a bunch of things operating, things aren't going so well for them. And they remember other times when they think nostalgically it was better. They think of other countries, which, you know, it may be getting better than relatively speaking, that it used to get. And, you know, what are we entitled this reconstituting the Republic? There's lots of ways to reconstitute the Republic. And the question I put to you obvious, is the Constitution flexible enough to deal with the likes of this kind of threat, this kind of dissatisfaction? Well, the Constitution is the people who interpreted and live under it or buy it. So the Constitution itself sits there and gets interpreted whether or not there are amendments in lots of different ways. My short answer is someone to teach constitutional laws. Yes, you will not be surprised to learn that would be my answer. But it really does depend on both some acceptance of what the courts say, some understanding that the courts sometimes stand up for the minority, for the little guy. It isn't just majoritarian rule. And that's one of the attractions, I think, of the constitutional constitutional law has to figure out when those times are. And that's not an easy thing to answer. And there isn't one place you can look it up. It is clear, I think that the answer to that has changed over time. And of course, until Brown for support of education to oversimplify a whole movement, there were people who were left out largely. And then the court said, well, they shouldn't be left out. And then other groups have entered into what in constitutional law terms suspect classifications, where a court will look at with particular scrutiny at some discrimination. There's a lot of discrimination that still exists, of course. And there are critics of Brown for support of education within the black community, within the more general community, who think the court didn't go far enough or didn't go fast enough there. And there's some legitimacy to that. But there's still an argument within the parameters of discussing constitutional law. But someone who doesn't think the Constitution matters is, I think, talking from the outside, in some sense, in terms of the question that you're asking. Well, I'd like to repeat the slogan, which is on the edifice of the Supreme Court, which is the Court of General Justice in New York City. And I wrote it down and says, the true administration of justice is the firmest pillar of good government. And I guess that means confidence, public confidence in the administration of justice. But we also need critics. I don't mean to say that we shouldn't have people pointing out the great problem of people not having equal access to justice. We have a very active, and I think unusually effective access to justice commission here in Hawaii. And Chief Justice Wreckingwald is very committed to increasing access to justice and to bringing the court out into the community, which I think is very important for people to understand complexity. Constitutional questions tend to be complex, not yes or no. Is that happening around the country or are we unique? We're not unique, but I think we are ahead of the wave on that. But he's been taking the court to the law school, which we appreciate, but also into the public high schools. And our students help prepare the students and the students there in the high schools may engage in moot court kinds of exercises. And then if one of the lawyers in a real case asks or has to answer a question that they had to wrestle with themselves, that's a wonderful civic education moment. And I think that's part of what's lacking. As we tend to get our information quickly and on a surface level, we lose the ability to wrestle with complexity. And complexity is a little bit of a slowdown. You don't just get to do something if you start recognizing that there are usually two sides or more than two sides. And there's a side also of the break. We're going to take a short break. We'll be right back and talk about those high school kids and civics. We're going to talk about, you know, the attitude and the knowledge of the public and how they deal with it. Hello, ha! Angus McTek here with What's the Upside? In the run up to Election Day, newspaper and readers usually expect to see endorsements on the editorial page. But I question that practice. Newspaper and endorsements have become much part of the American political process since the 1800s. American newspaper editors view endorsements as a vital public service, even though their impact is considered minimal. I still think they should keep their opinions to themselves. Newspaper editors see it as their duty to help inform the public and help foster their discussion about important issues. Some even think it is important in their civic duty. If their goal is to help voters make a smart informed decision, then you should stay correctly in the position of the candidate, perhaps even some point or a counterpoint. That's it. Most newspapers have editorial boards made up of opinion writers, top editors, even company executives who decide the editorial direction. These editorial boards operate independent of the news room. And then who's the journalist? The journalists are expected to report the news without bias or favor. So why not have the editorial way do the same? It is obvious that Honolulu's privatizer is partisan and their opinion leaders do have strong opinions about what is the best residents of their communities. So do you think even are smarter than you are readers? I didn't think so. There is no conclusive evidence to show that newspaper endorsements actually influence voters. So do us a favor this year. Stop endorsing candidates and just report. I'm Angus MacTek for Think Tech Hawaii and E-Bajie Talk. Be sure to watch us Fridays from 1300 till 1330 and follow us on YouTube. And remember, what's the upside? Okay, I'm Jay Fidelin with Obby Soyfer. He's the Dean of the William S. Richardson School of Law. And we're having a very important discussion about reconstructing the Republic. And by the way, of course, you remember what happened to Ben Franklin. Franklin was in these secret meetings in Liberty Hall in Philadelphia. And he walked out for lunch or something and a woman who was waiting outside to hear the news about their discussions grabbed him and she said, Dr. Franklin, Dr. Franklin, what kind of a government are we going to have? And he said, A republic, madam, if you can keep it. Yes, if we can keep it. If we can keep it. He wouldn't have said to a woman, then if you can keep it because she didn't get to vote. So, you know, can we keep it? In other words, those kids in high school, yes, we need to train them. We need to teach them. We need to expose them. I have to say, I believe that my generation, your generation coming up, we knew a lot more about civics and the way the government works than kids coming out of school now. And we have to go back and train them and make sure they know because this is a more difficult world, a more complex world. 50 shades of gray. Oh, you know, you have to be a sophisticated operator in order to deal with the government to understand that they are us. We are them. It's all together in the social compact. I think the country, millions of people don't know that. I think that's right. And it's in some ways not fair to target the young people because I think you're right across many generations. But I think there are some initiatives such as the one I mentioned taken by our Supreme Court. We have a free summer law camp, we call it for a week. And we get last summer, it was students exclusively from public high schools. And they come to us for a week. And by the end of one week, they're able to do a mock trial in impressive fashion. They also come downtown, watch a trial, meet judges, meet legislators. And both years that we've had it, they met the governor as well. So they're learning something about separation of powers. This is changes. It's just a tipping point kind of experience for them. For example, you know, there's a real risk they're going to go out there with the appears, you know, the same age group and all that and conclude the government is all terrible. No, I don't think there's a risk. If they meet these people, I think they'll see that they're sincere. It has an effect on it. Yeah, absolutely. Yeah, I'll tell you one great moment. So one of them and they may be somewhat naive as you're suggesting. So they met with a number of the Supreme Court justices. I think it was three of the five. And one of them asked the justices, have you ever been in trouble with the law? Good question. Sabrina McKenna, Justice McKenna said, Well, I was never caught. Great answer, I think. But it was down to that level of kind of understanding their concerns and certainly some of their classmates have been in trouble with the law. And I think a really, in a way reassuring and permissive answer that she gave. Yeah, we are very clever. So but you know, you see spots around the country now and it's the country in general, you know, under the microscope of world, world observation, world opinion accounts. And and so I look at that case in Oregon, where there was an acquittal of people who were clearly guilty. Sorry, you don't know that Jay, unless you're in the court. I said that. Shouldn't say that in a law school. They're of course presumed innocent. But let me just say, I believe they're guilty. And they were acquitted flat out. Okay. And then the case only a few days ago in the big island with Billy Kenoy, he was acquitted and, you know, no soap there. You don't you don't know. I really do believe that, by the way, having watched some trials. You can't tell from the newspaper headlines or even the full story what went on and what the jurors were up to. That's one of the great strengths, I think, of our system is nobody gets to ask the jury what were you thinking? It is a black box as well as a jury box. And they bring very different perspectives and experiences into that. Now, we are sort of losing out in that we hardly have jury trials anymore. And jury jury trials are very important for civic education, for those who are on juries, and almost inevitably jurors come out of that saying that they're impressed. They're impressed with the jury system. They're impressed with the lawyers and the judges. So we need more jury trials. We need more people to be impressed with the system. You know, the old thing about it's it may have flaws, but it's the best we got. That's right. Winston Churchill, back to your Ben Frank. Okay, thank you. Well, I think they were related. But you know what? Both chubby anyway. The same the same look about it. But you know, I just I worry that that there's a movement in this country that says we don't buy it. I think we don't buy what the government does. We don't. We don't buy filing tax returns. We don't buy applying for licenses. We don't buy any of it where we have we have shoved off. And we're going to live on the land. We're going to go back to another time that you know, we're taking a little bureaucracy off ourselves. I worry about that. Well, I think there's reason to worry and even in teaching constitutional law, federalism is a big issue. So what should be left to the federal government? What should be left to the states? Our current Supreme Court has cited the 10th Amendment as if it said powers not expressly given or explicitly given to the federal government are reserved to the states. That's not actually what the 10th Amendment says. And James Madison, who if there is one father of the Constitution, it was James Madison, fought actively against exactly that language and won that fight. So it's kind of disconcerting when Chief Justice Roberts paraphrases the 10th Amendment and gets it wrong. It really is. Nonetheless, when I teach these things, and of course you try to ask tough hypotheticals, would the people who believe in states sovereignty or states rights really want there to be no federal drug administration? There was bad before there was some regulation of what could go into a glass jar or a can and get sold either across state lines or within a state. And our health is notably better, I think, because of some of the regulations that people object to. Yeah. Or would we dispatch the police force? We don't need a police force. They're all bad. Let's not have a police force. What would happen then? Well, in the Second Amendment argument, of course, is really off the wall these days because it's true the Supreme Court innovated and for the first time said there was an individual right having had the issue over many decades and said there wasn't. But even Justice Scalia's opinion didn't say it's an absolute right and didn't say it's a right to carry concealed weapons. Those cases are still bubbling up and that's one of the great things about constitutional law that in some, to some extent, it's kind of like the common law. So it builds one case to another. And what some people are saying these days about the Second Amendment, the court has never said even the Scalia and later a Thomas opinion about application to the states. You know, we had on the radio show years ago, Jack Balkan from Yale, your classmate, your colleague at Yale. And I asked him a question. I said, in the Bush administration, we've seen a lot of backsliding on presidents that were hard to come by in, you know, in the 50 years before that or the 100 years before that made this country great. And Bush will be over soon. Will we snap right back to where it was? Will we return to the more preferred path, at least in my view, after Bush is out of office? And he said, No, it's all on the record. It's all history. It has a life of its own. It moves where it goes. It's a combination of a million factors operating in this country. What are your thoughts about that? Well, so I think Jack Balkan is terrific. And maybe we'll get him back because he was visiting law school at that time. But put him in touch with I did. So yeah, thank you for that. But it's interesting. There's a case just before Brown versus Brown education, they may be next to each other in the US report, reporter, which was Hernandez, I believe is the name. And it was about exclusion of Mexican Americans from juries in Texas. And Chief Justice Warren wrote about how we don't have to say there was bad motive, but just what has happened here is violative of the Constitution. And he goes on to say and there will be there may be other times when other community groups, other groups rather, are discriminated against by the community. And we, the court, have to stand ready to intervene when that happens. So the notion was over time, we should recognize discrimination and its unique role for the court to do that. You can't really expect the legislature, which is after all a more responsive to the democratic will to do it. Now, sometimes the legislature does with civil rights acts and so on. But the court has to play a role. And to some extent, I believe the court has to try to be a little ahead of a tutor in a great national seminar, as was once said. I agree. And I want to, I was going exactly where I wanted to go. And that is the world is moving faster now, not only the world in the US, which is certainly moving very quickly. And we've seen that day by day. But the world in general, I mean, look at how nations have changed and all the constituencies and the strategies and, you know, national, international policy, law, diplomacy, all, and it's all on our table because of the media. It's all there. Are the courts moving fast enough to reconstitute the republic at a speed which will work, you know, because people believe and Trump has made them come out of the woodwork that we're not doing a good job, that the government is not doing what it needs to do. Of course, his view of many things we disagree with. But I think the basic principles the government is not satisfying our needs. Should the courts move faster? Should the government move faster? Should, for example, Congress get locked in on the cliff every year? Should they refuse to confirm Supreme Court nominees? Is the government dysfunctional now? What can we do to move it faster to fix it? This is a hard question. So it's about six questions. Yeah. Let me take the one about the court and then we can go back and pick up some of the others if we have time. I think it is irresponsible to say we're just going to stonewall on the Supreme Court nomination. And if that continues after the election today, it becomes downright dangerous because it does begin to chip away at the credibility of the court. And ultimately the court relies on credibility. It doesn't have the Marines. So we want a court that is able to respond. And that sometimes requires five four rather than four four. It's important for people to know that a four-four opinion is one in which they uphold whatever the lower court did, but it doesn't count as a precedent. And so if we go on having cases that are important that are not precedents, it gets to be more chaotic even than the world is today. On the other hand, back to the first part of your multi-part question, I don't think we can expect the court to solve these problems. The court can lead a little and it can lead a little in terms of opening eyes, in terms of perhaps introducing some mercy along with justice in certain situations. Brilliant book by Brian Stevenson called Just Mercy. Wonderful. And I recommend that to everyone. But the court can't really be engineering. Now good lawyers Thurgood Marshall and others were taught to be engineers. But that means to try to move the court and society a little bit. It doesn't mean to set new agendas and then push and pull everyone in that direction. So the court probably cannot engineer the solution to the problems you've identified. But they can help recognize that the solutions come up with without judicial review are often not real solutions. I think I got it. We all have to take care of each other. We have to be good to each other. We have to fly on a high moral plane. We have to believe in the government. We have to see the government as us and we have to be part of the government. We have to work together to preserve those fundamental values from way back when. So that's what this presidential campaign means to you, huh, Jay? Yeah, I guess so. Thank you, Bobby. Great to be here.