Here's Where It Gets Interesting - The Enduring Value of the U.S. Constitution with Akhil Reed Amar, Part 1

Episode Date: September 7, 2022

On this episode of Here's Where It Gets Interesting, Sharon sits down with constitutional law professor Akhil Reed Amar to talk about the importance of treasuring the U.S. Constitution. What we have in common as Americans–Americans who live in different geographical locations, are raised with different experiences and cultures, and even often speak different languages–is our Constitution and the historical events and documents that shaped the nation. Amar shares his journey as a first generation American, from the gift of citizenship at birth, to the evolution of his opinion on the importance of the nation’s constitutional history. Hosted on Acast. See acast.com/privacy for more information. To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

Hello, friends. Welcome. Delighted to have you with me here today. Do you think we should scrap the Constitution and start over? Today, I'm chatting with Akhil Reed Amar, who is one of America's foremost constitutional law professors, and he would say no. And I'm excited to have you listen to this episode and find out why. Because here's where it gets interesting. I'm Sharon McMahon, and welcome to the Sharon Says So podcast. I am truly thrilled to be chatting today with Akil Amar. Thank you so much for being here.

I'm so honored. Thanks. This is one of those conversations that I've been hoping to have for a very long time. You're so gracious to give us your time today. And I would love to have you give somebody who is not already familiar with your prodigious work. Can you give us a little overview of who you are and what you do? My name is Akhil Amar. On the page, I often introduce myself as

Akhil Reed Amar, and I'm first-generation American. And the Akhil Amar, that's from my parents, and they were immigrants to the United States from India, but I'm born in Ann Arbor, Michigan. My parents meet at the University of Michigan, and that's where the read comes from. I am a professor of constitutional law at Yale. I teach in the college and the law school. And what I teach about basically is America, the American Constitution in particular, American history, but I also cover contemporary events, modern day events that have constitutional significance. So all things constitutional, I'm your guy. That is so true. I mentioned to you earlier that I have a number of your books on the bookshelf behind me, and I fully embrace my nerdiness that my idea of a good Thursday afternoon is getting to chat with one of the

country's preeminent constitutional law scholars. Well, thanks. I try to give my fellow citizens the background behind the Constitution, and these are not my own personal constitutional views. On a whole bunch of issues, my personal views are rather different than my views as a constitutional scholar and a constitutional historian. I very much appreciate that you want all Americans to be able to access and understand a lot of these important concepts, important history that make us who we are. Right. That's exactly, you got it just right. Because without a common base, a common language, if you will, a common culture narrative, we don't have that much in common in that we Americans, we have different races,

we have different religions, actually different languages, different, very different geographic experiences. What we have in common as Americans is our Constitution, our institutions like the Presidency, House, and Senate, which I'll mention the Constitution, our national history, our narrative. I just told you, my people, my ancestors weren't here in America. My parents arrived in the 1950s and meet in Ann Arbor, Michigan. But what I have in common with other Americans is Abraham Lincoln and George Washington and our Constitution and Bill of Rights and Reconstruction Amendments and Suffrage Amendment

and all that stuff, even though, to repeat, my own family came later in the story. to repeat, my own family came later in the story. I love that, that what we all have in common is Abraham Lincoln. What we all have in common is the Bill of Rights and the Declaration of Independence. Which is why he says, four score and seven years ago, our fathers brought forth. And he doesn't mean that in a pure biological way. You see, he's actually opposed to a group, their critics call them the know-nothings, the American party that was actually kind of anti-immigrant. So they're all our fathers.

And what is he saying? Because he's saying that in 1863, Gettysburg Address. Four score and seven, that's 87. So 1863 minus 87, that's 1776. So he's talking about the Declaration. He's talking about Jefferson, and he's saying our fathers, and he's saying that's what we Americans have in common. What do you wish more Americans knew about America's founding, about our founding documents? if you could sort of snap your fingers and you were like, I really wish I could impress on the hearts of all Americans, this concept or this

fact, what would you like Americans to know? Maybe if I could pick four or five, I'd love them to actually read the document. It'll take you about an hour, the constitution, you about an hour, the constitution, and truthfully, you won't quite get it. So if in my dreams, I'd love you to read one of my books, or at least a chapter where I could begin to tell you what it's all about. And here are some of the big things that you'd get from the books. And they're easy to miss, even though they're hiding in plain sight. So let's just take the first sentence. they're hiding in plain sight. So let's just take the first sentence. We the people, dot, dot, dot, do ordain and establish this constitution. Now, some people, they'll remember a constitution rock, and they'll actually even remember the little jingle about what all the purposes are. But just put aside the purposes for just a second. We, the people of the United States,

We, the people of the United States, do ordain and establish this constitution. So just take a step back. They're actually voting on the thing, which is stunning in the history of the world. Never had so many people been allowed to vote on how they and their posterity would be governed. The Declaration of Independence in 1776 was not put to a vote. None of the state constitutions in 1776 were put to a vote. And these, again, aren't my ancestors, but I can affiliate with the project. We did it. We discussed it for a year. It was a pretty darn inclusive and fair vote, especially by world historical standards. The losers acquiesced and the winners listened to the losers. And the two of them then moving forward, adopted a bill of rights together. Like, why can't we do that today? Okay. And why

can't we learn from how we did? And then the final point is we've amended the document in the 250 years since again and again and again, we have made amends. That's what amendments are for some of the lapses, some of the sins of the founders and almost all the amendments have actually added to liberty and equality. And we're not done. But if you are an American today, and you want to think, what can I do to make the world better? Study the Constitution and the amendments. See how each generation actually added something to the project of liberty and equality. And then you'll be much better equipped to decide, okay, how can I today keep that project going? How can this generation make it better still? But you won't be able to do that, honestly, my fellow Americans,

unless you know the Constitution, you know the story behind it, you understand democracy and the amendments. So that would be, in a nutshell, the biggest things that I want people to understand. I love that. I frequently say, you can't change what you don't understand. And so if you want to do heart surgery, you better have a really intimate knowledge of how the heart functions in the body, its structures. You got to know that thing inside and out, literally, in order to be a successful heart surgeon.

We don't just read a couple books and be like, well, I get it. It's fine. You cannot hope to meaningfully impact something without understanding how it works. So here's my analogy, because I have two brothers. One is a law professor. We may talk about him because we've done an interesting thing of late about a thing called independent state legislature theory. But one of my brothers is actually a law professor. He's the Dean of a great American law school in the heartland, the University of Illinois,

College of Law in Champaign-Urbana, land of Lincoln. But the other brother is a surgeon. He's not a heart surgeon. He's a brain surgeon. Now here's the difference between what he does and what I do. And here's my ask of your audience. So there's no way if you wrote three books, if you're at five books and I read them all, I can't do brain surgery. Okay. Cause that's just, but what I'm saying is, Oh, if you read one of my books, fellow citizens, you'll actually know half as much as I currently do. You'll know more than I did know before I wrote those books. So the constitution, yeah, we need to study it, but don't be too daunted with a few good

books. You'll actually become rather expert in a way that you could never do for heart surgery or brain surgery. It was designed for ordinary people. I'm trying to write, it being the document, I'm trying to write for you, my fellow citizens. So here's the ask. I want you to know about as much about the constitution as you know about your favorite sport, whether it's hockey or baseball or football or basketball or whatever, soccer. And I promise you, I can walk out of the street and converse intelligently with

almost half the people I meet about Babe Ruth versus Willie Mays or something like how LeBron compares to Steph Curry compares to Kareem or Larry Bird or whatever. People actually can carry on intelligent conversations about that. We could talk about Billy Buckner's legs or the curse of the Chicago Cubs. I mean, ordinary people know their sports and they don't know their constitution. And if you don't know the constitution, we die as a society because it's what we have in common. And unlike sports, where you don't, you're not actually, I know you'd like to be on the drafting committee, but we are on the drafting committee when it comes to the presidents. They're called presidential elections. We pick the presidents, and we can't do that well if we don't know, for example, who the past presidents have been, who was good, who wasn't,

and why. And to figure that out, we need to know actually what is the president supposed to do and not do. And the script is provided by the constitution. And you're going to be a better citizen and feel better about yourself and about America if you know the American story. And that's what I'm trying to do in the books. I love that. I would love to hear more too about how if you know the American story. And that's what I'm trying to do in the books. I love that. I would love to hear more too about how did you become interested in this? Was there something that your parents did where they raised two scholars of law and constitution, or was there a defining moment in your life? We were talking earlier about how I can trace my interest in this topic back to having a newspaper route and reading the newspaper as I walked along in the pre-dawn freezing darkness with needing something to do.

But is there a thing you can point to in your own life? I would say when I look back on my life, there were maybe two or three defining moments. One is the day that I'm born. My parents are doctors. They come to the United States to do advanced medical training at the University of Michigan in Ann Arbor, one of the world's great universities. So they're on the science side, on the medical side, and they're just students in America. They're not citizens. But on the day that I am born in Ann Arbor, Michigan, because of the constitution, I'm a citizen of the United States, just like everyone else born in that hospital that day. And so when I look back, I think I've always been so proud to be

an American. That's the Akhil Reed, Amar. That's the Reed part of it. And the constitution gives me this great birthday present on my actual date of birth, which is American citizenship. Thank you, Abraham Lincoln, because your generation put that in the document. It wasn't in the original document because of slavery and other stuff and race discrimination, but we made amends for that. Thank you, Abraham Lincoln. So I have two dozen first cousins, just first cousins alone, big family. And most of them were not lucky enough to be born in the United States. And they want to come here because it's an amazing place, but I'm born here and my life is infinitely better, truthfully, than most of theirs.

I have all these advantages. And as I'm growing up, I'm hearing about my cousins and I'm thinking like, I did nothing to deserve my advantages, but why is it that we Americans have it truthfully so good compared to a lot of the rest of the world? Hmm. Maybe it has something to do with the American constitution. Maybe I should study that to figure out why that's the first thing, day of my birth. And then when I'm nine and 10 years old, my parents going to medical conferences, I grew up out in California after we moved from the Midwest very early on and grew up in California. And they take me to a couple of medical conferences in Philadelphia and in Washington, DC. And I see Independence Hall and hear the story about the Declaration of Independence. And we go to the Capitol building in Washington, D.C.

Our congressman, as it turns out, is one of my dad's patients. So, he takes me out to lunch. And wow, I'm a 10-year-old kid and he's taking me to lunch in the Capitol building. And we visit the White House and we go to the National Archives and we see these amazing charters of liberty. And we go to Mount Vernon. And I think, wow. And so when you went to college, when you were like, okay, it's time to pick a career, did you already have your sights set on this? Was it like day one of undergrad? This is what I'm going to do. Or did it evolve after you started pursuing higher education? So I grew up in California, a public school kid, very grateful for amazing public school education, great teachers, and was lucky enough to get into Yale. So I arrive at this amazing college,

which is this amazing tradition, Yale College. And then my first semester, I take a basic course in American history, and I'm exposed to these amazing ideas about our founding. I read books by Bernard Balin, The Ideological Origins of the American Revolution. He's a Harvard professor. My teachers actually taught their own books. Edmund Morgan wrote these amazing books, The Birth of the Republic, American Slavery, American Freedom, a book on the Stamp Act Crisis. These are the books that are literally assigned to me first semester of Yale College, And they get me very charged up about American history, founding history in particular. And then later on, I'll discover

Reconstruction history. And by the end, I'm completely captivated by American history and American constitutional history in particular, which is why I said it's only in retrospect that I realized, oh, Philadelphia made a big impression on me and so did Washington, D.C., because when I arrive in college, I'm not quite sure what I'm going to do. I love thinking about how you don't always know how something small, like let's take a trip to see Philadelphia. You don't know what kind of impact that's going to have on your child or somebody that you know in the future. I love that. Yes, it's amazing. And Kierkegaard says that we live our life in prospect, forward-looking, but it only makes sense in

retrospect. So looking back, you realize, oh, that's why I did that thing. I didn't understand until now, that's why I did that thing 20 years ago, 30 years ago. It's because something that happened 30 years before that. I'm Jenna Fisher. And I'm Angela Kinsey. We are best friends. And together we have the podcast Office Ladies, where we rewatched every single episode of The Office with insane behind the scenes stories, hilarious guests, and lots of laughs. Every Wednesday, we'll be sharing even more exclusive stories from the office and our friendship with brand new guests, and we'll be digging into our mailbag to answer your questions and comments. So join us for brand new Office Lady 6.0 episodes every Wednesday. Plus, on Mondays, we are taking a second drink.

You can revisit all the Office Ladies rewatch episodes every Monday with new bonus tidbits before every episode. Well, we can't wait to see you there. Follow and listen to Office Ladies on the free Odyssey app and wherever you get your podcasts. You went on to be one of the founders of the Constitution Center. National Constitution Center in Philadelphia. It was my way of paying back the city of Philadelphia, which is one of the great cities of the world and, frankly, had fallen onto hard times in the 60s and 70s. It had suffered some urban decay and dilapidation. And it has come roaring back exactly opposite Independence Hall, three blocks away, is this amazing museum called the National Constitution Center. It's open to the public. And yes, I was one of the six academic advisors at the

beginning. When you walk in, still to this day, there's actually a little plaque. It's an amazing experience. What would you say to somebody, and I'm sure you've been asked this question many times, maybe by your students or other people, what would you say to somebody who says that many other countries rewrite their constitutions regularly, on regular intervals, and this idea that we would still be clinging to the words of our founders who enslaved people, who had misogynistic views of women, that we would still be clinging to their words as though they are sacred. What would you say to somebody like that who feels a sense of sort of distaste for the Constitution? I hear you, is what I would begin by saying. And too many Americans don't start that way.

And if we don't listen to each other, how are we ever going to come together? I'd say that was actually my initial take, candidly. When I arrived at Yale College at age 18, I think I was closer to your point of view. But at least the thought that it's too hard to amend, and we're too distant from the founding for it to be very useful as guidance. I've changed my mind on some things. And let me just tell you, I'd say to someone who said this, why I've changed my mind on some things. So one, I used to think I was a young man.

Oh, it's too hard to amend. I have all these good ideas and they're never going to be adopted. And now I think, yeah, but there are a lot of bad ideas and I'm glad that they haven't been adopted. So it's hard to amend, but here's one of the reasons why it was hard to make in the first place. And maybe what's hard to do justifiably should be hard to undo because be careful because if you undo it, you could make it worse rather than better despite your best intentions. So now I began to think about some things a little bit more. So I said, okay, yeah, the rest of the world doesn't have a constitution that's as difficult to amend. I think ours is almost uniquely difficult to amend. That's true.

And so we're the outlier. Then I think, yeah, but my parents came here and they had choices. They could have gone to other places and they didn't. Isn't that interesting? And all my relatives, I mentioned my two dozen first cousins, they all kind of want to come here. So that's at least interesting that they want to come here and not some of these other places. So then I thought, I'm being honest with you. I'm telling you actually the process of my own, I grew up in Walnut Creek, California. So let's take California. It's got a written constitution.

So do the other 49 states. Its constitution is very easy to amend. Now, simple question, is it better than the federal? Oh, I don't know about that. We've had some really good amendments in California, but also some really bad ones. Whereas we've had very few bad federal amendments, maybe not enough amendments, but the ones we have have been pretty good. So here's an interesting set of facts. State constitutions are easy to amend, but we've had a lot of bad amendments at the state level, very few at the federal level. And second, if you ask most Americans, which is the greater source of object of your loyalty and affection, if you have any whatsoever, which gives you more warm fuzzies, the U.S. Constitution or your state constitution. I think most people would actually say the U.S. Constitution.

They haven't even heard of their state constitution. They haven't ever even looked at it. Okay. So this is all interesting to me. Then I further would say it's not just about the framers and slaveholding. Yes, they this is all interesting to me. Then I further would say, it's not just about the framers and slaveholding. Yes, they did all sorts of things wrong. So if we're taking our constitution seriously, we have to focus on the amendments, on the amendments that end slavery, 13th amendment, the promise, civil equality, and then make me a citizen on the day of my birth,

even though I'm a little brown boy, you know boy whose parents are from India, the 14th Amendment, the promise of racial equality in voting, the 15th Amendment, sex equality in voting, the 19th Amendment. In my lifetime, we get rid of poll tax disenfranchisement and other things in the 1960s. The people who are doing it are people like Martin Luther King and earlier generations of crusaders like Susan B. Anthony and Elizabeth Cady Stanton and Abraham Lincoln. They're all part of the project and not just the founders who did make all sorts of mistakes. And to repeat, the amendments in part are about making amends for some of their mistakes. Now, I tell the person who came up to me with that, once you know that longer story, how about you and I together sit down and try to think about how we might actually add an amendment

to the Constitution that would make it better still? What do you think would make it better still? And then we can talk about it. So you're going to have to study it before you change it. And that's fine. before you change it. And that's fine. One of the things that I've followed with interest is this sort of burgeoning movement to alter the constitution via the method it's never been altered before by having convention of states. And there's, you know, quite a few states now that have and there's quite a few states now that have gotten the framework ready to go that are like,

yeah, pull the trigger and we'll be there. What do you think of that idea? Is that a dangerous idea that we would potentially be altering the constitution in a scary way? Or is that something that you think Americans should embrace and pursue? I think I changed my mind on that a little bit as well. As a young person, I think I was all gung-ho. I'm not opposed today, but here's the reality. We're deeply divided. And the Constitution shouldn't be amended unless there's a kind of a consensus about which way we should go. I'm looking for things that might be a consensus.

And I told you at the beginning, isn't amazing at the founding, the anti-federalists are fierce critics, you know, and they lose just by an inch and they're not very happy about that, but they acquiesce and they actually say we can make it better. And that becomes the bill of rights because the majority listens to them. That's what I eventually want. And maybe a constitutional convention could be a venue for that. But right now at this actual nanosecond, I don't want to food fight. The new book is called The Words That Made Us America's Constitutional Conversation, 1760 and 1840. I don't tweet,

but when I go on Twitter, it doesn't seem that people are having a conversation today. They're throwing food at each other, as I said. So I think at a certain point, we could have it, but let's first try to get some simple statutes passed where we can all agree. And that would be evidence that maybe we're beginning to come together on things, because otherwise, I think it's possible that the convention could make things worse rather than better. Yes, it could be dangerous. I think one of the things that I hear from people regularly that they would like to amend the Constitution to include is term limits. Term limits for particularly members of Congress. Like, whatever your term limit is, 12 years,

do your 12 years, get out of Dodge. You know, like none of this, you're here for 50 years. It's not meant to be a career. You're meant to serve your constituents, not enrich yourself, not, you know, deeply entrench yourself in Washington, DC. You're meant to serve people and leave. Yes. Do you think that that would be a good amendment? The argument is, if we have term limits, that's actually going to increase the power of the presidency. If we have term limits, it's going to increase the power of staff, the bureaucrats who actually know stuff and lobbyists who know stuff because there's just a steep learning curve. I'm going to make the opposite argument in just a minute, but I'm

actually giving you analytically because I teach history and law, but also political science. These are the arguments that it'll create too strong a presidency, too strong a bureaucracy, too much power for the lobbyists. There is a learning curve. Oh, and you're still going to have lifetime politicians. It's just, they're going to, it's going to be musical chairs. They stop being a member of the house and then they run for the Senate. They stop being a senator and they run for governor. Are they not a governor, but they're state attorney general, like my friend Jerry Brown or something, who was governor, and then attorney general, and then governor again. So they're going to actually just move around. Don't think that

they're actually going to go back to being school teachers. Okay, that's the argument on one side. Okay, and the argument on the other is, yeah, Akilah, you say there are elections, but they're kind of rigged because the incumbent has huge name recognition and other advantages. And it's technically, this is a game theoretical term, a prisoner's dilemma, a collective action problem in that truthfully, if you poll people, they actually say, oh, I hate Congress, but I like my Congress person. But in fact, maybe I don oh, I hate Congress, but I like my congressperson. But in fact, maybe I don't like my congressperson, but I'm not going to throw my bum out if you won't throw your bum out. Because if I throw my bum out and you don't throw your bum out, then your bum passes stinky

pork barrel stuff that gives more for your district and I'm a chump. Okay. So actually, we all have to take turns throwing our guys out. And the only way we can do that is term limits. And this is a fair way because otherwise people stay and stay and stay to deliver more pork barrel for their district. And that's maybe good for the district and the district might even think, oh, what a guy, Bob. I'm making the argument each way because I'm being straight on some things. I have strong views on some things, I've changed my mind. On this one, I can see it both ways.

Yeah, I think you make great points. A lot of times people forget this idea that a lot of what happens in Congress is sometimes about the relationships that are built, where they're able to build a coalition of people with whom they have developed an affinity. coalition of people with whom they have developed an affinity. And if you just have a room full of new people regularly, you don't have the chance to build those relationships, to build that experience. The people in Washington, DC these days don't break bread with each other nearly so much as they used to. I have, I'm lucky. I'm at a very special university, which brings all sorts of amazing students through. Four of my students, I'm about to turn 64, four of my students are senators of the United States. Cory Booker, Josh Hawley, Michael Bennett, and Chris Coons. And if people are just in and out because they go back home every weekend and maybe they need to, to talk to the folks. But then also if they're not around long enough, yeah, it does become hard for them to develop relationships with people on the other side of the aisle, for example.

Yeah. Like the famous Orrin Hatch, Ted Kennedy. And I know them both. I clerked for Stephen Breyer back when he was on the First Circuit, who was Ted Kennedy's general counsel. And Senator Kennedy would call all the time to the chambers. And so I got to know that family just a bit. And as I told you, I testified before Orrin Hatch. Honestly, the two people, the two men, liberal Democrat, conservative Republican, very long standing senators, beloved by their constituents in Utah and Massachusetts, respectively, actually had a lot of affection for each other.

Ted Kennedy would tell you, my friend Orrin Hatch actually cared about me as a human being. He helped get me off the booze. He helped get me off the fast living and made an honest, you know, and the women and all the rest. And Orrin Hatch, I think, would say the same thing. He says, yeah, we disagree about things, my friend, Ted, but we actually care about each other as human beings. And we did a lot of good things for the country together. And that's not true in today's Senate. No. Or when Ted Kennedy got sick with a brain tumor,

Orrin Hatch wrote him a song. And Orrin Hatch was apparently a very prolific songwriter. And Orrin Hatch was apparently a very prolific songwriter. Had he recorded this song, go find it on YouTube. And to me, that speaks to the depth of their friendship. You don't write a song for just a person who works in your office unless you are truly, deeply friends with them. So what you're hearing from me is I believe we need more connective tissue, red folks and blue folks working together. I'm in Washington, DC and elsewhere. Eventually, maybe we can have a Constitutional Convention, but we first have to try to listen to each other better. I'm trying to write books that truthfully, when you read them, I bet for most of them,

there's maybe one book that's an exception, but for most of them, you won't be able to tell where I am on the political spectrum. And on important constitutional questions, often my own personal view is actually different from my constitutional view about what the law actually says. And today, whether it's AOC on the left or Trump on the right, I just don't see us talking to each other. And the world needs us to come together and we need to come together. And I think that's what your podcast is about. We talk about this frequently. It's a frequent frustration of people in my community that they feel like the fact that there is no ability to come to the table and break bread is at the expense of the American public. Your inability to not have press conferences making fun of the way somebody looks on the steps of the Capitol, your inability to not

mean tweet 25 things a day is at our expense. Yes. Yes. Okay, that is not the end of our conversation. Join us again next time. When my conversation with Akhil Reed Amar continues, we're going to be discussing a potentially very blockbuster Supreme Court case coming up this next term, Moore versus Harper, the concept of independent state legislature theory. So I'll see you again soon. Thank you so much for listening to the Sharon Says So podcast. I am truly grateful for you. And I'm wondering if you could do me a quick favor. Would you be willing to follow or subscribe to this podcast, or maybe leave me a rating or a review? Or if you're feeling extra generous, would you share

this episode on your Instagram stories or with a friend? All of those things help podcasters out so much. This podcast was written and researched by Sharon McMahon and Heather Jackson. It was produced by Heather Jackson, edited and mixed by our audio producer, Jenny Snyder, and hosted by me, Sharon McMahon. I'll see you next time.