Advisory Opinions - Amending the Constitution with Professor Levinson

Episode Date: January 17, 2022

On today’s episode, David and Sarah take a quick look at an intriguing cert grant at the Supreme Court and then dive into a fascinating discussion about amending the Constitution with University of Texas law professor Sanford Levinson. He thinks the Constitution has some structural problems, and David and Sarah walk through his critiques. By the end, they ask, is there any constitutional reform that can save us if we’re determined to be dysfunctional?   Show Notes: -Sarah in Politico: “It’s Time to Amend the Constitution” -Levinson: “The Iron Cage of Veneration” -Levinson explains The Democracy Constitution project -Democracy: “A New Constitution for The United States” -Levinson: “The Price of an Unchanging Constitution” Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we have heard your requests. We have gotten a number of emails, a surprising number of emails, who said, you know what? I'd really love it if you had on a progressive legal guest. progressive legal guest. And just fortuitously, Sarah had written an awesome article in Politico about making it easier to amend the Constitution. And did Professor Levinson reach out to you, Sarah? Yes, my professor-in-law. Yeah, your professor-in-law. So one of Scott's University of Texas professors named Sanford Levinson reached out because he has been doing an enormous amount of work talking about making it easier to amend the Constitution and what would an amended Constitution look like.

And so we're super delighted that he's joining us today for this podcast. And so we're going to have a great discussion with him. He's just a delightful guest, thoughtful guest. I know you're going to enjoy this conversation. So that's coming up here in a bit. But before we get going, there's a couple of legal developments that are worth talking about. of legal developments that are worth talking about. And the first is a cert grant in what's going to be a pretty darn interesting First Amendment case, one that we've already talked about before. And this is a case called Kennedy v. Bremerton School District. And here are the

issues. Number one, whether a public school employee who says a brief quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any first amendment protection. And number two, assuming that such a religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it. Now, if you would remember, this is the case of the praying football coach. A football coach who would, after being asked to refrain from praying with the team or members of the team, or that he would kind of walk off by himself after a football game to pray and pray publicly and was disciplined for that activity as well. And we talked about that a lot at the time and got actually some interesting

emails from folks who had personal knowledge of the case. But Sarah, what's your initial response to the CERT grant? Boy, this term is just really... to the cert grant. Boy, this term is just really, the feast is too much. I am so full, David, but I'll eat more. I mean, if you're going to serve me delicious chocolate mousse at the end of the meal, I'm going to keep scarfing. Yeah, this is going to be a very interesting case because, you know, as we've discussed before, if you are a public employee, you are not what would be the right proper legal term, Sarah? You're not exactly swimming in First Amendment rights. You're not exactly drowning in the First Amendment when you're a public employee on the job. Now, and so we know from Garcetti v. Savalas that basically every public employee, with the exception of university professors engaged in teaching and scholarship,

if they are on the job, if they are speaking and acting in their capacity as a public employee, they basically don't have First Amendment rights in the same way that we understand First Amendment rights. CRT legislation, how much can a state legislature control the speech of public school teachers, and the general default legal answer is pretty much totally is where most of the case law is. But this is an interesting question because the coach is finished coaching. He's still on school grounds. He still theoretically is engaged in responsibilities of a high school football coach. And he's publicly engaging in what he says is his own private expression while theoretically on the clock. So it's in that kind of interesting area of, is there a space when you're a public employee where your speech is your own, even when you're on the clock? And it's going to be very interesting. And I don't know that this is a foregone conclusion kind of case. I have a prediction, but it's not on the outcome of the case exactly.

Okay. My prediction is that this is going to, at least for me and my two axes on the Supreme Court, rubber's going to hit the road on this because you have theory, First Amendment theory, how we think about public employees and all of that, which is the non-institutionalist judges in a lot of ways. And I think they will be very sympathetic to this idea that, you know, of course you're allowed to have a private prayer, even when you're at work. On the other hand, I think the facts of this case are not nearly as good for coach Kennedy. And you're going to have someone like justice Brett Kavanaugh, a former coach himself may have some opinions on the facts of this case. And I'll be curious.

I think this will be a facts versus theory argument. And that's what I will be most interested in at the argument as well as how much the actual facts of this particular case affect it versus the theory, which again, I think the theory comes out one way very easily. Coach Kennedy wins. I think the facts make out one way very easily. Coach Kennedy wins. I think the facts make this a bad case for the Supreme court to have granted cert to, which I said before, but they did. So, so far I'm not doing very well in my predictions.

Nevertheless, um, perhaps they haven't dug into the facts as much as we have. Well, at least some of the clerks did. We know that. Um, so we'll see. I'm curious. Yeah, it is. It's going to be very very interesting i'm very much looking forward to that oral argument and i totally forgotten the kavanaugh coach role here and we know that kavanaugh coach kavanaugh shows up to oral argument as we saw in the angry cheerleader and in the ncaa cases so um i'm I'm expecting big stuff from Coach Kavanaugh.

Yeah, yeah. It's going to be very interesting. Okay, next thing, some fallout from husband of the pods. Okay, well, no, not really. Fallout from the other case, the Medicare-Medicaid case. So fallout from the vaccination cases. There is an interesting response from Florida. So I'm going to read to you, Sarah, this response. The state of Florida is not going to serve as the Biden

administration's biomedical police. That's what DeSantis' press secretary said. Christina Pushaw, firing unvaccinated healthcare workers, many of whom have infection conferred immunity, is unethical and unscientific on its face. So that was cast as defiance of the Biden administration. No one's making you fire them. They're just not going to give you money. That's the whole point. The whole point. Right.

Exactly. This is something where your defiance is irrelevant because CMS doesn't need the permission of the state of Florida to withhold its money. And the fact of the matter is that there isn't a serious medical institution in the United States that can't survive without CMS funding. in the United States that can't survive without CMS funding. But I don't think that's just an empty statement. I think it is in some ways a, I don't want to say dangerous, irresponsible statement. Because one of the difficulties that we're having now is in this country is sort of obvious, transparent and immediate compliance with the rule of law. And this sort of posturing is the kind of thing that number one, I think, tells maybe less civically literate citizens that Florida is doing something that it cannot do. And number two, just fosters continued contempt for the institutions of American government.

I don't know, Sarah, your thoughts, total worth, not even worth talking about for five more seconds or troubling. Yes, that, that. So the DeSantis press secretary has made lots of waves. She is less press secretary and more pundit in chief for the DeSantis administration. She has attacked minority leader McCarthy, of course, a member of her own party. Once you said that it came from her, I don't think we know yet what the actual policy implications in Florida are. And it's the equivalent of you telling me that any other pundit came out and said something, you know, attacky.

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teaching assistant and has raved about him. We've got his book up on our shelf. Scott still references it. And I can't tell you how totally odd and tickled I was that after I published this piece in Politico about the need to amend the amendment portion of the constitution, which I've talked to you guys about before, that I get this email from professor Sanford Levinson. I mean, a con law institution. So to give you a little background on him, uh, Duke undergrad Stanford JD, which had to be confusing. We should ask him about that, that Sanford went to Stanford, one letter off. And then PhD from Harvard. He's, I mean, just an institution at the University of Texas. I can't fully explain that if you're not familiar.

And he has written, by the way, a book for non-lawyers, high school students, anyone sort of interested in the structural parts of the Constitution with his wife called Fault Lines in the Constitution, the Framers, Their Fights, and the Flaws That Affect Us Today by Sanford Levinson and Cynthia Levinson, which is super cool, highly recommend. And then just like fun trivia fact that I did not know about Professor Levinson, he clerked for a district judge in North Carolina, Judge McMillan, who maybe you haven't heard of by name, but you certainly know one of his cases, Swan versus Charlotte Mecklenburg Board of Education. That would become the Supreme Court case in 1971 that unanimously upheld busing programs.

So we have so much to talk to him about, about the structure of the Constitution. And we've had many requests, weirdly, in the last 48 hours to have someone who disagrees with us, David, about sort of how we, I don't know, approach the world, not politically in the partisan sense, but politically, I think with the lowercase p constitutional law wise. And so I emailed a bunch of you saying, just wait till Monday. You're not going to believe who we got. So here's who we got. We have Professor Sanford Levinson. Professor, thank you so much for being here. Well, thank you. You know, I might disappoint some of your listeners because I'm sure that we disagree on a lot of contemporary constitutional law issues as kind of defined by the Supreme Court. So if we're going to talk about the case that Scott argued just last week.

We could disagree with each other till the cows come home. But in fact, the reason I wrote you a fan letter is because I couldn't agree more that Article 5 is really an unfortunate feature of the Constitution, not simply because it makes it very difficult to amend the Constitution that I think very much needs amendment, but also because the very difficulty means that we prefer not to talk about it. means that we prefer not to talk about it. So it's much easier to get into highly political arguments about heroes and villains than to say that the Constitution has. And we need to talk about those. It's also the case, I'm particularly happy to meet Mr. French, because I'm very interested as a matter of theory, but also as a matter of discussion about the topic of secession. I mean,

he's written a very good book about that. And I don't think it's something just to kid about that we are in the most serious political situation since 1858 in terms of polarization, and that it's worth having a serious discussion of the kind that he's trying to provoke about the country's future. Now, you know, there are all sorts of ways in which we disagree, but I do think that what is heartening is the possibility of people with deep political disagreements being able to have a serious discussion about the way the Constitution might not be serving us very well in certain ways. be serving us very well in certain ways. So. Well, let's dive in just on the amendment process, although we got to get to Electoral Count Act, your thoughts on the Senate and the presidency and the Electoral College. I mean, you have, I think what a lot of people would consider very radical thoughts on how to transform the structure of the Constitution. But one of the, I think, biggest criticisms of amending the amendment process or changing the structure of the Constitution. But one of the, I think, biggest criticisms of

amending the amendment process or changing the structure really at all is that you will end up with a system that responds too well to the extremes, to going back and forth depending on who wins this election, that all of a sudden the laws just are on this pendulum. How do you answer that? of a sudden the laws just are on this pendulum. How do you answer that? Well, I always take the occasion, really in any course that I teach, to bring up my favorite political philosopher who was Goldilocks. That is, we're always trying to get that just right position between too hot and too cold. So it seems to me that there's a huge spectrum between, let us say, Sweden and Austria, where the constitution is remarkably easy to change, or certain American states where constitutional amendments happen all the time because all you need is a majority vote of the electorate. So if that's on one end of the

spectrum, the other end of the spectrum is the United States, which really does have the most difficult to amend constitution in the entire world. But I would also say very, very importantly that it has the most difficult to amend constitution in the United States, so that it's an outlier in our own country. And so you look at the 50 American states, and a lot of people are very fond of quoting Brandeis on states as little laboratories of experimentation. And we could look at the various states. And so the real question is, do the states or do all of the states simply fall victim to the fear that you're mentioning? Or are they really pretty sensible? Because they might, let us say, have a supermajority requirement, or a number of states say you need

two legislatures, or you need popular referendum on top of the legislature. But what is very important, and what your column suggests, is that we can have a serious discussion across political boundary lines of whether the United States Constitution is too difficult. And then we could start discussing or arguing about whether the correct model is Iowa or California or, you know, fill in the blank with any one of the 50 states, or God forbid, looking abroad and looking at New Zealand or Germany or other countries that we would regard as democratic in their sheer responsiveness to popular passions that do a much better job than we do of updating their constitutions.

David, it was an interesting editing process when I was writing this piece, trying to make the point that we need to amend the amendment process, not to make it easy, but to make it easier. And I was citing Justice Scalia, But I was trying to make the point that if you have a problem with our immigration system or with abortion or anything else, then you should want to make it easier. And my editor came back and said, but what's in it for conservatives? This idea that

if you make it easier, it would only help someone on the liberal side of the spectrum. And I was like, oh, I have not explained this very well then. Because if you're frustrated with the administrative state and the constitutional structure being totally, you know, it's like in a blob shape now. Is that legalese? We try not to speak legalese on the podcast. It's totally distorted. Then the valve to me is the constitutional amendment process. You know, what you say is extremely interesting. Since Larry Lessig organized a weekend program at Harvard Law School that was co-sponsored with, I think, Mark Meckler, who was the head of one of the Patriots. Tea Party Patriots, I think. Right. And the weekend was devoted to, do we need a new Constitutional Convention?

I think the answer is yes. Larry is one of the other literally handful of mainstream legal academics who would say yes. I was there, and I was on a panel on why a new Constitutional Convention would be a good idea. The takeaway from that weekend was that the left and the right mirror image one another on this issue, that most of my friends who are on the left are scared to death. And not only my friends, my family, my professional colleagues, they're scared to death that you and your friends would just monopolize the Constitution and do all sorts of things. We would be required to have handguns. Just go down with me. We're practically there in Tennessee. We're almost there. But what was fascinating is that the right had the very, very same reverse polarity image. They were scared to death that I and my friends would just take over. And obviously I regard that just crazy, because even if I wanted to take it over,

I couldn't even take over a group that I worked with over the last year, thinking about constitutional change, because there was enough difference of opinion in a group of about 25 or 35 political liberals, that there were real discussions and real votes. And I lost a number of votes. And I'm sure the same thing would happen among a thoughtful group of 35 conservatives. But I think there is this fear, deep elemental fear of the capital O other right now. That's one of the things we mean by polarization, that God forbid that the people we now demonize as the political enemy might be in a position to take over. So the easiest thing to do is to rally around the Constitution and say, you know, it's just perfect as it stands or it's good enough as it stands. But I think it's not good enough. I think it really is in its own way a clear and present

danger to the country. So, Professor, we had some good reading before the podcast that we'll put in the show notes that you can read as well. That's right, listener. Our professor still assigned us reading before class. And as a good student, I did it. I just want to be clear. I did it. And so you raise a point that I think a lot of, that it's going to be counterintuitive to some folks,

but is kind of emerging as a cross-partisan consensus in some other quarters, and that is that the difficulty of amending the Constitution hasn't... Yes, there are ways in which that has resulted in the Supreme Court making decisions of extreme constitutional consequence that it might not make if you had an easier amendment process. But you had an interesting point to make about the presidency and the rise of the executive branch in a difficult to amend constitutional structure like we have. So I'd love it if you just sort of laid that out.

How does the difficulty of amending the Constitution play on the executive branch in a way that I think we agree is toxic? And you had some really interesting things to say about, for example, the war fighting power and where it is now essentially completely, totally, and utterly in the hands of the president of the United States. So if you could kind of lay that out. Yeah, I mean, I think that the intermediate thing we would need to talk about is the breakdown of the legislative process. That when you look at public opinion polls and discover that on a good day, 15% of the country might have confidence in Congress, might approve of Congress, but very often it's 10 to 12%. That is a sign of pathology. I mean, if you look at approval ratings of the president, they kind of mirror membership in political parties. So, you know, presidents will always

be, or you almost always be somewhere in the forties. And then we can talk a lot about whether it makes a difference, whether it's 42% or 49%. But when it's 12% or 15%, that is a basic loss of faith in the ability of Congress to function. And whatever you think are the major problems facing the country. And probably we would disagree on what the major problems are facing the country. But I suspect that we agree that Congress will not effectively respond to what we think are the major problems facing the country. So then one of two things can happen. Nothing. Or presidents or the judiciary will move into the breach and say, well, if Congress isn't going to act, I will. And presidents since World War II, Democratic and Republican, have been more than happy to step into the breach and to say something has to be done. We can't simply sit back and let this problem overwhelm us. And this has been built, you know, you are much more antagonistic to the administrative state than I am. But I would agree that what we have seen over the last 75 years years is what Justice Cardozo did call delegation-run riot. And it is understandable

that presidents of both parties will tell their lawyers in the Office of Legal Counsel, which is a group of highly, highly talented lawyers whose major job is figuring out why the executive branch can act. We talk about judicial independence, life tenure, etc. OLC is probably more important than any single circuit court, and in its own way, it's at least as important as the Supreme Court. And their function is by and large to aggrandize executive power under Democrats or Republicans. And so we have this move to the executive. You mentioned war, which is obviously appropriate because after World War II, we give up on traditional American isolationism. We now have bases in whatever it is, 150, 160 countries. And we develop a much, much more powerful notion of the presidency in foreign affairs

and its commander-in-chief of the president's army. We have the standing army that certainly the founders never envisioned. And then on the domestic side, we have the same sorts of pressures building up that if Congress can't act, then presidents will. is whether the Constitution, quite deliberately in 1787, didn't, or whether it created a system designed to make legislation very hard, if not, in some ways, impossible, unless all the planets aligned. in some ways, impossible unless all the planets aligned. But we still demand action of government. And so it is presidents who step up and become ever more demagogic because that is what is thought to be, to coin a phrase, necessary and proper. Yeah, you know, I've put it this way, that as the executive has accumulated power,

while this phrase that says, it's the most important election of our lifetime every four years is a little wearisome, because we often don't know what the most important election is until hindsight. But it is true that we, well, I think it's at least arguably true that every four years of late, we're electing the most powerful peacetime president of our lifetimes. And that that ever escalating amount of power packed into the presidency is one of the reasons why the presidential elections take on such apocalyptic tones every four years. So here's my question, Professor. All right. I think, you know, I agreed with Sarah's piece. I think we do need to make it easier to amend the Constitution. constitution. I think that that's something that needs some real, very serious examination that we need to make it easier to amend the constitution. And that part of the reason for some of the instability of our politics is the impossibility of amending the constitution. So let's say you, let's sort of skim past whether we could convince people to amend the constitution's amendment process what what would you what would be the first thing you took aim at what would be the next amendment after the amendment that says we're making it easier well you know i give different

answers to that question in some ways depending on you know kind of what's going on um because quite frankly there are so many features of the constitution that i think we need to talk about um particularly with regard to trying to overcome legislative gridlock. I mean, what I most truly hate about the Constitution is the U.S. Senate and the way it locks in power for an ever more unrepresentative minority. I mean, we profess to believe in one person, one vote, but the Senate is a walking rebuke. Sarah will particularly appreciate the fact that I don't like either of Texas's two senators,

and I do like both of Vermont's two senators, but it is indefensible that the 28 million people in Texas have the same voting power in the United States Senate as the 650,000 people in Vermont. So real quick, I was planning on proving to you that I had done the reading because I wanted you to respond to this, what you wrote in one of our readings. But I think it's worth our listeners hearing. Consider in this context that demographers predict that by 2040, 70% of the entire American population will live in only 15 states. Today, 50% of the population live in only 10 states. This means, of course, that 30% of the population will control 70% of the votes in a very powerful

Senate, and there is nothing random about the distribution of the population. Less populated states tend to be older, more rural, more religious, and more racially homogenous, i.e. white, than are the larger states. If one views much contemporary politics as a conflict between parochials and cosmopolitans, then the United States Constitution gives an enormous edge to the former. So if I had read that 10 years ago, I would have had this very knee-jerk reaction to how insane you were. This idea of getting rid of states. Are you out of your mind? But with age comes wisdom and all sorts of things.

And now I think, here's this incredibly smart person saying something that sounds insane to me. So I'd better hear him out because he might be on to something. Well, first of all, I wouldn't abolish the states. Politically, you would, though. whatever you think stateness brings, that a state should be treated as a really and truly sovereign entity in which, you know, all of the sovereigns are equal, which means that Vermont and Texas get the same voting power. I mean, if you look at the United Nations, in this General Assembly, Fiji has the same voting power as the United States. That's one of the reasons that very few people take the General Assembly seriously.

The important arm of the UN more than you do, but I think that even people who like the UN realize that it doesn't work effectively because neither of the two branches is sensibly organized in terms of the realities of the international system. So it's not that I want to abolish Fiji or that I want to abolish Canada and other really fine countries in the world. I wouldn't abolish Vermont. But it does seem to me that we can have a sensible discussion of whether the imbalance between Vermont and Texas, or more notably, Wyoming and California, which is about 70 to 1,

roughly 70 to 1, whether that's just too much. James Madison, whom I always quote on this point, I'm not an originalist, but the devil quotes scripture. James Madison in Federalist 62 said that this feature of the Senate, that is equal voting power, was a lesser evil. I focus on the word evil. What made it a lesser evil is that the greater evil would have been the willingness of Delaware and New Jersey simply to walk out and say no constitution at all. In fact, Rhode Island didn't bother to send anybody to Philadelphia because they falsely had confidence that the Articles of Confederation would stick. And what the article said is that you need unanimity. If you think Article 5 is difficult, then the Articles of Confederation said you need unanimity. Rhode Island said, look, every state had signed this. We can trust them to keep their word. But in fact, you couldn't. And the most important single thing the framers did

was to junk the Artists' Confederation Article 13 and to say, if you have conventions in nine states ratifying this, then the Constitution comes into effect. So I always tell my students they can win a bar bet by saying, especially if they sound a little bit tipsy, I'll bet you can't tell me how many states there were in the country when George Washington became president. And the correct answer is 11, because Rhode Island, my home state of North Carolina, had not ratified the Constitution. They did so only afterward. So the model set before us by the framers, and I really don't view myself as a framer basher. I think they did a good job of responding to the political exigencies of 1787. The people I want to bash are ourselves,

who have ended up viewing what they did in 1787 as a sacred text, rather than to say the model they set before us is serious people who asked, what do we need to do and who did it? So in 1787, the difference between Delaware, which is the smallest state, it wasn't Rhode Island, Delaware and Virginia, was about 12 to 1. Today, it's 70 to 1. Madison thought this was evil in 1787, but we had to pay the price to get the Constitution. Quite frankly, I don't think we have to pay this price to Wyoming and Virginia and Vermont today in order to keep a country. Mr. French has written a really interesting book on secession. Maybe you have to fear that Texas or California will secede. There's no rational fear that Vermont

and Wyoming will try to secede. But one thing that might explain California's trying to secede or Texas is trying to secede is to say, you know, we've had it with a political system in which taking California, a state with about 12 and a half percent of the voting power in the Senate and is less and less well treated by the country, they could make a go of it on their own. Texas could probably make a go of it on its own. What is it, in fact, that keeps us together in the union? Lincoln talked about the mystic chords of memory. In all seriousness, how many people today respond to those mystic chords? And I think that one of the reasons is that they look at the national government, whatever their place in the political spectrum, and they don't have confidence that the national government is capable of responding unless, to go back to what Mr. French asked a while ago, unless you have a would-be strong

president who says, well, if Congress is going to act, I'm going to use every last ounce of presidential power, and then maybe even another little bit besides, to do what people seem to think needs to be done. You know, one of the things when I'm thinking about what can and is destabilizing America, there's two things that I think of, structurally, aside from the obvious issues that divide us. I'll very quickly bring up the issue of minoritarian rule in the U.S., that the burden of – that in other words, if you look at the dynamics of the Electoral College combined with the dynamics of the Senate, that it's very telling that it seems like if you're a Democratic presidential candidate, just for example, the amount by which you have to win the popular vote to really sort of through the sheer weight of mathematics and momentum to be sure that you're going to win the presidency is just growing. And it's growing every four years. And, you know, Biden won the popular vote by about 7 million, but Trump came within about 45,000 votes in a couple of

three states, I believe, from becoming president. So, and as somebody explained to me, how is it a stable democracy if the majority consistently, or as opposed to once in a hundred years loses, but consistently loses? How is that stable? And I think that's a very fair point, along with how is it stable if 30% of the country or if 70% of the country can be essentially blocked by 30% of the country? How is that stable? And the conservative retort is, okay, I understand, a thoughtful conservative retort is, I understand your concern with minoritarian control. What about our concern with majoritarian tyranny? reform effort deal with that? Because I know, I mean, you know, there are progressives who right now would say, I don't want abortion rights put to a vote. I don't want other kinds of rights put to a vote. There are some rights that should be beyond a vote. So where does, where does the,

where did the safeguards against majoritarian tyranny come into your vision? Where do the safeguards against majoritarian tyranny come into your vision? That's an excellent question, obviously. kids are almost literally in the third grade, they start hearing the term tyranny of the majority as if that is the great single problem that politics presents. But we don't really hear about the other side of the coin, which is tyranny of the minority. That is a well-located political minority that can block needed change. So the most obvious example in American history is the slavocracy. is the slaveocracy and the fact that the Constitution was designed in 1787 to give slave owners and slave states extra power through the Three-Fifths Clause, most notably. And this is what political theorists have been debating about for 2,500 years. And I don't have a facile answer, or even quite frankly, an unfacet answer to your question, because it is the most important question in all of political theory. How do you create a just government? And since we disagree on what justice requires, this is the meaning of political pluralism,

where those of us who disagree on lots of important issues where reproductive rights have become the modern analog to the debate over slavery in many ways. How do we live together in a single country? And the answer isn't easy. We couldn't do it with slavery. We ended up killing 750,000 people. So what we need to do, and what encourages me about a podcast like today, or I'm more familiar with Mr. French's writing than I am with Sarah's, so I will now seek out all of Sarah's writings in the future. Attempts at genuine conversation across the political barriers that are so divisive. One answer to your question, what issues, if any, can truly be taken out of politics by having a rights amendment saying, don't even think of trying to do this? Generally speaking, I think we believe that most issues have to be resolved within politics.

Generally, the majority should prevail, but it should know that it could become the political minority in the next election if the policies chosen are ineffective or stupid or impose too much on what people believe to be their inalienable rights. That's not a very satisfactory answer, but it does seem to me that the challenge we face, and the reason I find discussions of secession so interesting, that when Madison was writing the 10th Federalist, or the 14th Federalist in 1787, the Extended Republic, he called it. He was talking about a country of 4 million people stretching from modern Maine to the southern border of Georgia, over to the east bank of the Mississippi River. Today, we're about 330 million people into the mid-pacific and depending on what you think of puerto rico in the caribbean as well how do you in fact govern a wildly pluralistic country country of 330 million people. I don't know exactly what the answer to that question is. I think it's the most important of all political questions. And I think the Constitution,

as it is now written, makes it more and more difficult to come up with a satisfactory answer. Because I think that both of us agree that it's just intolerable that 30% of the population could have what I call a death ray veto over legislation passed by what was called in 1787, the People's House of the House of Representatives, putting to one side issues of gerrymandering and stuff like that. It's clearly the case that the House is more representative than the Senate, but it doesn't matter in the kind of bicameral system we've got where the Senate can absolutely block legislation of the House, and then, of course, vice versa. students from really digging into these structural conversations about the Constitution, we're going to put in our show notes your new Constitution that y'all published in Democracy Journal. But you note that, quoting here, this means, among other things, that students graduate

from our elite law schools and often go on to inhabit positions of, quote, leadership, without once having been forced to engage with the implications of the hardwired structures established in 1787 and rarely amended since then. These include, but are not limited to, the Electoral College, the Senate, the fixed presidential term, life tenure for Supreme Court justices, and perhaps most importantly, Article V of the Constitution, what would a con law course that you're a law school, I guess, designed by Professor Levinson look like? Well, I've had the privilege over the last probably the last

17 years or so of being a visiting professor at the Harvard Law School, usually in the fall semester. And the last couple of years, I've taught a so-called reading course on reforming the U.S. Constitution. And that focuses on the issues you're talking about. And I signed, incidentally, the so-called conservative constitution that was drafted to the National Constitution Center, the libertarian constitution why most law schools require constitutional law at all. Harvard, which you attended, I think both of you attended Harvard, is that right? Does not as a form matter, require constitutional law. It's simply that almost everybody takes it. University of Texas, where I teach, does require seven hours of constitutional law. And I think we require more than any other school in the country that I know of. But the question is why? The quick answer is because we want to prepare students

in the unlikely event that they're ever going to have a course that really involves the Constitution, a case, that they should know something about it. So you mentioned you had taken a course on First Amendment at Harvard. Well, most lawyers are never, ever going to have a First Amendment case in their entire practice. So why do we require, in effect, require or structure legal education so that you take that course, but not a course on the hardwired structures. It can't be because we say, you know, our students are so likely to practice this, that they really need to know the four-part test that the Supreme Court, you know, you know, spun out last week in some case. I believe that the only real reason to require constitutional law is citizen education. That for better and for worse, as Tocqueville pointed out,

you know, almost 200 years ago, lawyers disproportionately become civic leaders, and they ought to know something about our basic constitutional order. Law schools prepare our students wonderfully to know something about the Bill of Rights and the 14th Amendment. We do a terrible, terrible job of preparing future leaders to think about the hardwired structures. So I would wish that students be exposed to that sort of course, but not to make them better warriors. It's to make them better citizens. The fact is, you're not going to walk, I'm not going to walk into a courtroom and say, your honor, the Senate is indefensible in terms of basic political theory. in terms of basic political theory. Therefore, it is unconstitutional. No, that argument doesn't work. One might even say it's frivolous. Ditto with regard to the Electoral College. I

hate the Electoral College, but the Electoral College is hardwired into the Constitution. Both of you know that a con law course will spend endless numbers of hours on the so-called counter-majoritarian difficulty of judicial review. We never spend even 10 minutes on the counter-majoritarian difficulty of the presidential veto, where a single person can simply wipe out a law that actually gets through the hurdles put up by the Constitution with regard to passing any legislation. So, you know, I often talk about the fact that Bill Clinton vetoed the Partial Abortion Act, and George Bush vetoed, I think, a Stem Cell Research Act. I'm confident that there's almost nobody in the country who agrees with both of those vetoes. What I am interested in is why should the president have had the ability to veto either of those bills, unless you really just so mistrust Congress that you think it's very, very important to have the president stand there with the ability

to say no. And we don't talk about that. You know, it might be there are good reasons to have a presidential veto, but both of you know, and I know, that this doesn't come up in the standard con law course. And that's what I would do. It would look much more like a political science course. And as I say, it would have almost nothing to do with preparing you to be a litigating lawyer. And that's what law schools think our job is. I feel like Professor Levinson needs to teach high school government more than anything, like redo the curriculum across the board, and then maybe a college add-on course that builds on that. Really, you could do it in all three stages, high school, college, law school. Yeah. I mean, this book that my wife and I wrote

together, and actually she wrote it. I was the consultant on it, but it is directed at teenagers. It is used, in fact, in some high schools. It is used, I believe, in some community colleges. But you're absolutely right that, you know, I love teaching in law school because it allows me to be self-indulgent in lots of ways in terms of teaching about what interests me to very, very able, interesting students like your husband. But you're absolutely right that what we really need to be talking about is civic education more generally. And that is a question really of the high school curriculum or even pre-high school. Well, what a great place to end on.

And if this wasn't the best advertisement for the University of Texas Law School, I don't know what is. David and I, you know, make fun of ourselves a lot for having both gone to Harvard and that, you know, Scott's the one arguing at the Supreme Court. This is why, folks, because he got to learn from folks like Professor Sanford Levinson, who we are so grateful for you coming on. We're going to put all of the readings that you assigned to us in the show notes. And of course, you should just immediately enroll at the University of Texas Law School and

sign up to take his class. Thanks for being here, Professor. The gratitude is mine, I assure you. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect.

Well, that was a fantastic conversation. Sarah, your thoughts? We might need to have him back on because I still have more questions. You know, there's something we talked about him with in the green room about whether constitutional structure even matters. You look at the UK, this very parliamentarian structure, and if we followed his suggestions for his new constitution, which would basically make the Senate like the House of Lords, limit presidential veto powers,

that you'd end up sort of through convergent evolution with something very similar to the UK system. And yet the UK system doesn't look that different from ours in terms of outcome, even though the structure is so different. And so maybe the constitutional structure doesn't matter as much as we think it does, even though it feels in my heart like it should. And then of course, you know, I feel like listeners may be a little disappointed, like, wait, this is your super progressive. He is, he is super progressive. And we didn't get to talk about a lot of those things, like about how much he disagrees. Um, it was very sweet. He congratulated

Scott for a case. He wished he didn't win. Yeah, that was very nice. Um, so if there are specific legal topics, maybe in the comment section, people can do their, you know, questions for Professor Levinson, because I do feel like he is, I don't want to, this is not meant as a self compliment to us, but he is sort of our equivalent, David, in the sense of a very thoughtful person who loves engaging, not in combat, but in discussion with people who disagree with him. And so is there anything more perfect for the Advisory Opinions podcast than Professor Levinson cameos? Yeah, absolutely. I thought it was just a great conversation. And I like it when people are thinking systemically, but also realistically. There's another thing that he said in the green room that I thought was interesting. He said, in response to the question about the differences between the UK and the US secession of Scotland not long ago. True.

Came not super close, but reasonably close to losing Scotland. I was studying at that time. So in 2002, I was working in the House of Commons and we went up to Edinburgh to study devolution at that point. Oh, fascinating. Yeah. Fascinating. But, you know, so he was saying, and I think this is right, that if, you know, sort of the basic underlying cultural dynamics are 80% of what we're dealing with and the structural dynamics are 20%, I liked an analogy that he used about there's a difference between driving a car on a level road

that doesn't have great brakes and driving a car on a level road that doesn't have great brakes and driving a car on a steep road that has better brakes. And I think that's a good analogy. But at the same point, we have such incredibly furious competing factions that it's at once destabilizing that people can't get what they want. And it might be destabilizing if people can get what they want. Yep. We might have crossed the Rubicon on some of these things. But, you know,

it has really challenged me. And we've talked about the Electoral College before and what I think would be the very practical results for a presidential campaign. If there were no Electoral College, as someone who

ran presidential campaigns, I can tell you what I would do differently and that I don't think those practical applications are very good. At the same time, to have someone of his thoughtfulness really push me to think about why we have the states as these powerful political entities and whether in fact, you know, gosh, the civil war wasn't caused by having the states as political entities, but it certainly contributed to it. And having the states as political entities is contributing to some of our problems right now. And not taking that for granted as you must have that as part of your constitutional structure, but really starting from first principles, it is it like really will sit you down and have you staring out the window for a while. Well, you know, and and I do think that it's important in what one of the you know, when he was talking about sort of this Senate structure is, quote unquote, the lesser evil. talking about sort of this Senate structure as quote unquote, the lesser evil.

And he was concentrating on the word evil. I do think it is very worthwhile to focus on American constitutional history as a product of, in many cases, necessary compromise, as he said, otherwise some states would have just walked away or at least understandable compromise, but, and not as a

structure of government handed down on Mount Sinai and carved into stone tablets as the sort of divinely inspired apex of governmental structure, as the founders themselves recognized by putting in an amendment process and immediately amending the constitution to add the bill of rights because the bill of right, the lack of a bill of rights was a glaring hole in the original structure. And so I do think it's really important to have these conversations and I'm always liking somebody who's going to say something nice about my book too. I mean, David, did you know that he had read your book? Cause that was pretty exciting. I had no idea. I had no idea. Yeah, I would, that was, that was great.

That was, that was fun. He was, we did not, we didn't bring him on to plug, but Hey, but Hey. Wow. Wow. Well, David, last night after three weeks of solo parenting with my husband still in the house, which for anyone who's been there knows that actually makes it worse, not better. I handed off the brisket last night. They went downstairs and watched football. And I had a glorious hour, an hour, David, that felt like a week in the south of France, which I've never been to, but I'm imagining. And I made a homemade bolognese sauce that just, it took real time simmering in all that cream,

then some wine, some wine for me, some wine for the bolognese. But anyway, I was also listening to this great Spotify list, and I will tell you what it's called. Morning Has Broken is the name of the playlist. It's just, it was so relaxing. And in doing so, my mind was really focusing on the lyrics, but also wandering around the lyrics, chewing on them. And one of the songs that played was Bye Bye Miss American Pie. And there's these lyrics. While the king was looking down, the jester stole his thorny crown. The courtroom was adjourned. No verdict was returned. And I was like, wow. But you guys are going to think I was like taking other drugs. I wasn't. I was just high on being by myself.

And I was like, what does it mean? The courtroom was adjourned. No verdict was returned. Like a mistrial or just they stopped the trial. And then I was thinking, what other songs have great legal lyrics in them? And I'm hoping in the comments section to this podcast, we can sort of create our own advisory opinion Spotify list

with songs that have legal references. You know, I'm so uniquely debilitated at that, Sarah, because I, not only am I not that musical, no surprise, I don't really listen to lyrics. You and my husband, I think this might be a gender thing. I really think it is. I know the lyrics to every song I like. And there are some songs where in fact, I know the lyrics better than the music itself. And it's the lyrics that pull me in and I wish it had different music to go with it. I mean, Hallelujah by Jeff Buckley. Just you could bathe in those lyrics for a semester, as Professor Levinson said. Yes. So that's interesting. But if you're not a member of the dispatch, you can't be in the comments section.

So that's your incentive to go by membership to the dispatch and hop in the comments section. So that's your incentive to go buy a membership to the dispatch and hop in the comments section. That is an interesting theory though on gender because Nancy knows lyrics to songs that she can't remember hearing. She will literally start singing along with a song that like, that dates, I'm almost six years older than her, that sort of dates back to my early childhood when she would have been like five. So where did she hear that? And so, yeah, I do wonder about that. I listen to songs for the vibes. And so I've heard the song Hallelujah a thousand times.

What are the lyrics beyond Hallelujah? Oh my God. Oh my God. Well, first of all, there's different lyrics depending on which version you're listening to. Because each of the remakes of Hallelujah has taken some of the lyrics and not others. But I mean, it is like the Battle Hymn of the Republic, which I also just think have these gorgeous lyrics in the battle hymn of the Republic and hallelujah is like that for me. Gosh, how do you even, we might be squaring the circle on a previous podcast here. Yeah. Or closing, not squaring the circle, closing the loop. That's, that would be the more,

the question, why do so many sort of like, like hashtag America folks love Born in the USA, even though the lyrics are not exactly like, you know, flag-waving patriotic? It's this reason, Sarah. It's a bunch of guys who remember the song like this. Born in the USA. So they don't know. They're like, I just remember that the lyrics are sort of not, are more protest lyrics.

I couldn't tell you what they are, but I can tell you the chorus. Okay. Well, look, here's some of the lyrics that everyone knows from Hallelujah. Your faith was strong, but you needed proof. You saw her bathing on the roof. Her beauty and the moonlight overthrew her. She tied you to the kitchen chair. She broke your throne and she cut your hair.

And from your lips, she drew the Hallelujah. I mean, wow. But here's the part that is not in the Jeff Buckley version, but it's in the Leonard Cohen version that I think is really neat. Now I've done my best. I know it wasn't much. I couldn't feel, so I tried to touch. I've told the truth. I didn't come here just to fool you. And even though it all went wrong, I'll stand right here before the Lord of song with nothing, nothing on my tongue, but hallelujah. Come on, David, you got shivers on that one, right?

That is, that's potent stuff. And it processed through my mind like I just heard it for the first time. So listeners, please pick me up because we were talking about this right before we started recording and I literally couldn't think of a song. So it's pretty pitiful. All right. But on that pitiful note. Yep. Thank you.

Thank you so much for listening. Please leave suggestions in the comments. Please rate us on Apple Podcasts. Please subscribe and check out thedispatch.com. And we will be back on Thursday. We'll be right back. new standard. Introducing the first ever Mazda CX-70, our largest two-row SUV, available as a mild hybrid inline six turbo or as a plug-in hybrid, crafted to move every part of you.