3 Takeaways - A Bold, Fresh, Stunning Look At The U.S. Constitution (#196)

Episode Date: May 7, 2024

A.J. Jacobs spent an entire year living as America’s Founding Fathers did 200 years ago. Really. He learned they envisioned a very different balance of power than exists in Washington today. How out of whack are things? How should the Constitution be interpreted? Is there too much free speech? Don’t miss this remarkable conversation.

If the founders came back, they would be aghast at how much power the Supreme Court has. At the founding, the Supreme Court was one of three branches that would weigh in on what's constitutional. And the idea that these nine unelected people who are on for life would be the ones who have final say over how we live our lives, that would just appall James Madison and the rest of them. The battleground of politics is heating up, and politicians and judges are embroiled in high-stakes clashes over many hugely important issues, such as guns, the environment, immigration, and abortion. The Constitution remains the supreme law of the

United States, but the Constitution was written over 200 years ago, and the world today is very different from when it was written. So what did the founders mean when they wrote the Constitution? And how literally should we interpret it? And if we don't interpret it literally, which is to say anchored to the original meaning, then what stops people from changing the Constitution's meaning to whatever they want? Hi, everyone. I'm Lynn Thoman, and this is Three Takeaways. On Three Takeaways, I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world, and maybe even ourselves, a little better. There has arguably never been a more crucial moment for Americans to understand the essence

and meaning of the Constitution. My guest this week is someone who knows a lot about the founders and what they actually meant when they wrote the Constitution. A.J. Jacobs has unbelievably just spent a whole year living as the founders did 200 years ago. He is also the author of The Year of Living Constitutionally. Welcome, AJ, and thanks so much for joining Three Takeaways today. My pleasure, Lynn. I love the show. I love the format. I'll try to talk quickly so we can get a lot in. Thank you, AJ. Why did you want to live constitutionally? A couple of years ago, I realized I had never read the Constitution

from start to finish. I knew the preamble from Schoolhouse Rock, but I had never read it. And yet, as you mentioned, every day there was another news story about how this 230-year-old document was having a huge impact on the way I live my life and the way millions of other Americans do. So I decided I want to try to understand our founding document. And the way I like to understand things is to dive in. And so I said, I'm going to do it. I'm going to, for a year, walk the walk,

talk the talk, wear the tricorn hat, carry the musket, eat the mutton, and along with that, read a stack of books and talk to constitutional experts. And the hope was that at the end, I might have more knowledge about this, feel more empowered, and hopefully feel more optimistic about what we can do to save democracy. And that is, in fact, what happened. So you came away with a new appreciation for both the founders and the Constitution. You learned a lot about their focus on safeguards against, for example, the power hungry and checks and balances. Can you talk about that? I did gain respect, but at the same time, I saw the huge flaws. One of the important things that the founders did was try to have a balance of power, which we all learned about.

But what I didn't realize was how out of balance we are right now. For instance, both the presidency and the Supreme Court are far more powerful than the founders envisioned. They envisioned Congress as the first among equals. Congress was the closest ones to the people. And the president, it was fascinating to read in the Constitutional Convention, all these debates on how we can restrain the president. And when the idea of having a single president, a single person as president came up, some of the delegates said, no, that's terrible. That's a terrible idea. We just fought a war to get rid of a king. That's the fetus of monarchy. We should have three presidents or a panel of 12 who are presidents. And that almost passed. It ended up we are left with the one president. But I think that the fetus of monarchy argument has come true. The presidential powers are unbelievably expanded from what the founding fathers envisioned. So that's just one example of where I think we could go back to a founder's vision and be better off. And that's essentially because of the law making vacuum in Congress. But what are the safeguards that the founders put in to try to keep the three branches of government more or less in check?

Well, the idea was that they would each have power over the other. But again, it was much more of a collaboration than it is now. So the Supreme Court, the way the founders envisioned it, they were not these final arbiters of what is and is not constitutional. That has been a doctrine that has been created post the Constitution. And if the founders came back, they would be aghast at how much power the Supreme Court has. At the founding, the Supreme Court was one of three branches that would weigh in on what's constitutional. And the idea that these nine unelected people who are on for life would be the ones who have final say over how we live our lives, that would just appall James Madison and the rest of them. They thought the way to prevent tyranny,

the way to prevent extremism was balance. So that balance was partly the balance between the three branches, and they believed balance in every part of their lives. One of the interesting lessons I explored was the importance of balance in interpreting the Constitution. So you have two sides to oversimplify. Originalism, which talks about the original meaning of the Constitution as the most important thing by far. What did it mean in 1789? And then you have the so-called living constitutionalists or pragmatists who believe you've got to look at the original meaning. But more than that, you also have to look at other aspects, the consequences, how the Supreme Court has ruled in the previous decades. So I am a fan of that approach because it's more pluralistic. It's not a monist approach. It's a pluralist approach. And I think the founding father, it's more in line with their vision. It was a bold idea back in the 1700s to have an elected government. Oh, yeah. One of my advisors called it the big bang of democracy.

So in one sense, it was a very constrained democracy because it was restricted to white men. So it was a start. The point is, it was the seeds. I like the idea of the way Frederick Douglass, the great abolitionist, thinks about the Constitution is that it was a promissory note. It contained these seeds of equality and liberty that we have been fighting ever since to make a

reality. Much has changed, as you well know, in the last 200 plus years. We have amendments to the Constitution that abolish slavery and that granted the right to vote, irregardless of gender or race. Let's take a look at an area that has not changed quite as much. How did the founders, for example, see free speech? And how does that relate to our rights to free speech today? Well, it's fascinating because it has changed. Our expansive free speech, as a writer, I'm a big fan of free speech, but the founding vision of free speech was much more

constrained than what we have now. It was not Stalinist Russia, but they had no problem with constraining speech in several ways. There were state laws against blasphemy and cursing that were not considered unconstitutional. There was the Sedition Act that John Adams' administration put forward, and that now is considered hugely unconstitutional. It was allowed to lapse after Adams, but half the country, the Federalists, thought that that was perfectly constitutional. And that said, you could not criticize the government because they were worried it was so fragile at the beginning. And one man who made an arse joke at the expense of John Adams. He was actually thrown in jail. So I am a big fan of the expansion

of the First Amendment and free speech that we enjoy today and hopefully will continue to enjoy. But a lot of that came in the 20th century. A lot of it, fascinatingly, was due to the Jehovah's Witnesses who filed dozens of lawsuits in the 40s and 50s to expand freedom of speech and to allow them to do such things as not recite the Pledge of Allegiance at schools because they didn't believe in it. AJ, you mentioned the two ways to interpret the Constitution, the first one based on the Founders' original meaning, and the second to interpret it more broadly and expansively. If we're not anchored to the original meaning, that the Warren court had interpreted the Constitution so expansively. We've got to anchor it in the text. And I would say a couple of things. I totally see the danger of interpreting it willy-nilly to suit your political beliefs.

I would say first, originalism doesn't really solve that in the way it's applied today, because we are such creatures of rationalization that we find what's in the Constitution. We look at the text and justify whatever our beliefs are. And I would also say the hope is that you would actually have more balance by adopting this pragmatic multi-lens approach. And the third point I would say is, absolutely, the Supreme Court has way too much power to interpret the Constitution, and they are so far from the democratic process, we have to reform them. The easiest way is an 18-year term limit on the Supreme Court, which would make it a little more democratically initiated than it is now. But either way, I think nine people should not have that much power to

interpret the Constitution. Can you give some examples of the two different interpretations? Sure. Take the 14th Amendment, which was written in 1868 and guarantees equal protection under the law. Now, if you're a hardcore originalist, you are only looking LGBTQ plus people because when it was written in 1868, it was meant to apply to black men and their rights. This was after the war, after the abolition of slavery, and it was meant to guarantee those rights. So he says, let's keep it narrow. That's what it's about. It's not about gender. It's not about sexuality. Now, if you are a living constitutionalist, you would say no. No, just because they didn't have gay marriage in mind doesn't mean that we can't apply this idea of equal protection to LGBTQ plus people, to other oppressed minorities. And so it's a much more elastic way of looking at that clause, that the clause evolves to include more and more people. Originalism is very much focused on the past and the past only. And then living constitutionalism is more about past, present, and future. So our ideas on rights have evolved since the Constitution was

written over 200 years ago. And we have so many groups now and people asserting rights. How do you see rights? Well, I'm a big fan of Jamal Green, who wrote a book called How Rights Went Wrong. And he is a professor, I think he's at Columbia. And his argument is, we need to have more rights, but they have to be weighed against other people's rights. And that is actually more in line with the founding father's vision, is that you had to weigh the rights. The rights were not a trump card. So freedom of speech is not a trump card. You can't say anything. Once you become a member of society, you're in a social contract and your individual rights are weighed against the good of the community. And so he wants

to go back to that and he says rights should be ubiquitous and less absolute. So it's sort of a battle of rights and thinking about the pros and the cons. And that's the way I like to think about rights. Again, back to the basic checks and balances of the founders. Exactly. Checks and balances of rights instead of having them as being a total trump card. How has your mind changed after spending a year studying the founding fathers and living as they lived? Several ways. First, I've become much more a fan of virtue, which is the idea, at least then, of the idea of self-sacrifice, putting the community first and focusing not just on your individual rights, but your responsibilities. And I love that. So I've tried to, Ben Franklin had on his daily schedule, he would start by saying,

what good shall I do today? And I think that is a great moral compass to start your day. So it's not about how can I get ahead? How can I win? What good can I do today? So that has been a big change. Another big change is just I see how complicated the world is and how I should not come to rash decisions. I always thought, why do we even have states? States are so weird to me. And Alexander Hamilton said the same thing in the Constitutional Convention. He said, you can't serve two masters. Why do we have two governments? We should only have the federal government. And I was kind of on that side. But now I see there are pros to having states. They can be a laboratory of democracy. You can come up with different programs within the states and see what works and then export it. So at their best, states actually

are helpful. They have huge downsides, but they have their upsides. So those are just two small examples of how I've changed. AJ, what are the three takeaways you'd like to leave the audience with today? One is think slow. I think they thought much more slowly and they didn't have hot takes. They had cold takes. Back then, it was much less reactive. You wouldn't just type something, a bunch of abbreviations and post it to Twitter. You would get out your quill pen and you'd have to get out the ink and it gave you a waiting period for your thoughts. And I think that lends itself to much deeper and helpful thinking. The second takeaway, I would say, is be open to changing your mind. That is one of the great parts of the founding fathers, is that they were not attached to their ideas. And they were very

aware of their own biases, which is remarkable. We all think we're right, but we got to keep an open mind. Third is that we should strive to make democracy festive again, that we have to get back to the place of awe, that we can have an effect on who governs us, this is a joy and something that we should love. cakes and brought them to the polls and distributed them to people just to remind people, yes, this is a joy and something that we should relish and be excited about and not dread. AJ, thank you. This has been great. I enjoyed your book, The Year of Living Constitutionally. Thank you, Lynn.

Delighted to be here. AJ Jacobs is the author of the wonderful book, The Year of Living Constitutionally. Thank you, Lynn. Delighted to be here. A.J. Jacobs is the author of the wonderful book, The Year of Living Constitutionally. If you enjoyed today's episode, you can sign up for the Three Takeaways newsletter at threetakeaways.com, where you can also listen to previous episodes. You can also follow us on LinkedIn, X, Instagram, and Facebook. And if you're enjoying the podcast, and I hope you are, please review us in Apple Podcasts or wherever you get your podcasts. It really helps get the word out.

I'm Lynn Thoman, and thanks for listening.