Ideas - Why only the will of the people can save democracy

Episode Date: February 11, 2026

Neither the legal system nor the Constitution can change the course of the United States’ descent into illiberalism, argues human rights and civil liberties lawyer Jameel Jaffer. Only the will of the people can — when ordinary citizens fight to uphold democracy with "civic courage."

This program is brought to you in part by Spex Savers. Every day, your eyes go through a lot. Squinting at screens, driving into the bright sun, reading in dim light, even late-night drives. That's why regular eye exams are so important. At Spec Savers, every standard eye exam includes an advanced OCT 3D eye scan, technology that helps independent optometrists detect eye and health conditions at their earliest stages. Take care of your eyes. Book your eye exam at Specsavers today from just $99, including an OCT scan.

Book at Spexavers.cavers.captiasties are provided by independent optometrists. Prices may vary by location. Visit specksavers.cavers.cai to learn more. Before we start this Ideas podcast, could you follow us on the app you're using? It's the easiest way to find out about new episodes as they drop. On ideas, there's something for everyone. We talk to deep thinkers and produce compelling stories that help us better understand the world in which we live. The podcast is available every weekday, so our feed has lots to choose from. If you already follow us, thank you so much. Maybe you can give us a review or a rating. And if there's an episode you can't stop thinking about, please recommend it to a friend.

Every little bit you do helps other listeners find ideas. Thank you for listening. Now on to today's podcast. Welcome to Ideas. I'm Nala Ayyad. May 1944, 1.5 million people gather in New York City's Central Park to celebrate I Am an American Day. Addressing the crowd, a little-known American judge named Lernid Hand. Hans' talk was specifically directed at the 150,000 newly naturalized citizens in attendance. They were there to pledge allegiance to America.

He told the crowd, liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. And then when he asked them to pledge their faith in the glorious destiny of our beloved country, he tells them that the America of their aspirations will never come into being, except, quote, as the conscience and courage of Americans created. In the backdrop, World War II was still raging, and the future of Western democracy was uncertain.

For many Americans at the time, Han's speech turned him into a popular folk hero. So to hand, leaving one's home requires courage, but creating the nation of one's aspirations in defending it, those tasks require courage too. Jamil Jaffer is a Canadian-American human rights and civil liberties attorney. He was previously a deputy legal director at the American Civil Liberties Union. He played a key role in obtaining the release of documents concerning torture of prisoners

held at Guantanamo Bay and in CIA Black Sites. The spirit of liberty is still easy to find in the United States, but you have to look beyond the leadership of elite institutions. Among ordinary citizens, there's no scarcity of civic courage. Jaffer is currently the inaugural director of the Knight First Amendment Institute at New York City's Columbia University. A quick aside, the U.S. Constitution's First Amendment, which was ratified in 1791, prohibits Congress from restricting fundamental rights, speech, freedom of religion, assembly, petition, and press.

And Judge Hand himself wrote one of the most important. early First Amendment decisions. Hans' lecture from eight decades ago was the inspiration for Jamil Joffer's delivery of the 26 Horace E. Reed Memorial Lecture recorded at Dalhousie University's Shulik School of Law in Halifax. Here's Jamil Jaffer delivering the Spirit of Liberty, borrowing the title from Judge Hans' original speech. I grew up in Canada, but I've been working in the United States now for 25 years, mostly litigating civil liberties and human rights cases in American courts. Because of the work

that I do, I know very well that American democracy is deeply flawed, and that the Constitution's promises which were unevenly distributed to begin with aren't always kept. Still, the United States' precipitous descent into illiberalism over the past year has been astonishing to me, as I'm sure it has been to many of you as well. A cult of personality has formed around President Trump, whose administration is nativist, corrupt, belligerent, and cruel. The president threatens war against America's closest allies and talks entirely of martial law at home. The immigration agency, ICE, has been unleashed against non-citizens and citizens alike, and fear has taken hold basically everywhere in newsrooms, in universities, schools, cultural institutions, and immigrant communities,

across the country. American democracy suddenly seems at real risk of being extinguished altogether. We all know that the United States wouldn't be the first democracy to fade or to flicker out. But even accounting for its defects, the United States is not just any democracy. It has a celebrated Constitution that divides power between three co-equal branches of government. The Constitution's First Amendment gives robust protection to the expressive rights that leaders with authoritarian impulses often try to stifle, including the freedoms of inquiry, speech, assembly, and the press. The U.S. is also home to the world's most influential media organizations, and to many of the world's most respected universities. It has a formidable legal bar,

a nearly 250-year history of judicial independence, a deeply rooted tradition of protest, political activism, and civil disobedience, and countless, civil society groups dedicated to the defense of constitutional liberties. How is it that authoritarianism has taken hold in this environment and taken hold so quickly? The title of this lecture, the spirit of liberty, is taken from the title of a speech that the American judge learned hand delivered in May 1944 as Allied forces were readying themselves in Britain for the invasion of occupied France, addressing an audience of more than a million people gathered in Central Park. Judge Hand wondered whether Americans had come to place too much faith in lawyers and in legal institutions.

This is what he said. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. I've been thinking a lot about Judge Hand's observation as the leaders of so many of the United States' most storied civic institutions, law firms, news organizations, universities, have chosen to accommodate rather than resist President Trump's illiberal agenda. By many measures, the United States' democratic institutions are the strongest in the world. It turns out this isn't enough. So let's start with this. Anyone who thought President Trump's second term would be, like his first term, was very wrong. During his first term, Trump targeted minorities, immigrants, the press. He sometimes won the support of the courts, but his most ambitious attacks on

democratic freedoms and democratic institutions sputtered. The Supreme Court rejected his attempt to add a citizenship question to the census. Whistleblowers complicated his effort to strong-arm Ukraine into investigating former President Biden. Some of the people he pointed to leadership positions in the military and the intelligence agencies, slow-walked or even simply refused to implement his most extreme policies. Many of them left his administration and became vocal critics of it. Trump's effort to overturn the results of the 2020 presidential election was ultimately a failure, too, traumatic as it was for the country. He was impeached for it, his second impeachment, with the House of Representatives having already impeached him 13 months earlier for

obstruction and abuse of power. But Trump and his advisors drew lessons from that experience, even if they weren't the ones we might have wanted them to draw. In the first year of his second term, Trump issued more than 200 executive orders reshaping government policy on issues including immigration, energy, artificial intelligence, anti-Semitism, transgender athletes in sport, diversity, equity, and inclusion, and free speech. He installed loyalists to lead the most important federal agencies, and they in turn purge the agency's top ranks of anyone whose devotion to the president couldn't be conclusively established. With dissent all but eliminated within the executive branch, Trump turned to the elimination of dissent outside of it, sometimes through direct

censorship, but more often through intimidation and threats, threats of fines, sanctions, investigations, and even prosecutions. Attorney General Pam Bondi, who was previously Trump's personal lawyer, has indicted some of Trump's political enemies, including James Comey, the former FBI director, and Letitia James, New York's former Attorney General, on charges that are transparently pretextual. Trump has threatened the indictment of many more, including Jerome Powell, the chairman of the Federal Reserve, Tim Waltz, the governor of Minnesota, and Jack Smith, the former special counsel who indicted Trump for trying to overturn the 2020 election. Even more consequentially, Trump has mounted a sustained and multi-dimensional attack on the institutions that could, in theory, serve as checks on his power.

Soon after taking office, he imposed sanctions on elite law firms in retaliation for their representation of clients whom Trump viewed as political enemies. He suspended their security clearances, terminated their government contracts, and barred them from federal buildings. He threatened to impose sanctions on other firms if they didn't agree to take on conservative clients, provide tens of millions of dollars in pro bono representation to causes that he endorsed and abandoned hiring programs meant to address past discrimination. His campaign against the media has been, if anything, even more far-reaching. One early move was expelling the Associated Press from the White House press pool for its refusal to call the Gulf of Mexico the Gulf of America.

The message to other news organizations was clear. If you want to keep your access, you need to describe the world in Africa. our terms. Reporters have been denied access to the Pentagon unless they pledged not to report government secrets. Just pause for a moment to consider what journalism would look like if journalists agreed to that demand. Famously thin-skinned, Trump demand that CBS cancel Stephen Colbert's show and that ABC cancel Jimmy Kimmel's. The Federal Communications Commission, now led by a Trump loyalist has told broadcasters that it will pull their licenses and block their mergers if they can't bring themselves to be more sympathetic to the president's agenda. Just a couple of weeks ago,

the FBI raided the home of a Washington Post journalist. It seized her phones and laptops in connection with an investigation into a national security leak that embarrassed the president and the Secretary of State. This was the first time in modern American history that the FBI has searched the home of a journalist who wasn't herself accused of a crime. And it was a major escalation in Trump's campaign against the press, a warning not just to journalists, but to their sources as well. The Institute that I direct, the Knight Institute, is housed at Columbia University. And so I've seen the Trump administration's assault on higher education up close, citing universities' diversity, equity, and inclusion programs, and they're purported indifference to anti-Semitism on campus.

The administration froze or canceled billions of dollars in research grants. It threatened universities' accreditation and charitable status. It launched dozens of civil rights investigations and then demanded far-reaching and sometimes outlandish concessions that had no relation at all to the civil rights violations that purportedly motivated the investigations. Using federal funding as leverage, Trump demanded that universities suppress lawful protest. Limited missions of foreign students stopped issuing institutional statements about matters of public concern, shut down offices meant to support marginalized groups, and restrict the teaching of race and gender. The Trump administration is right now demanding that universities sign a so-called compact

that would require them to abolish academic departments that, quote, belittle conservative ideas. One especially noxious part of Trump's assault. on universities, has been a ruthless crackdown on foreign students who participated in campus protests relating to the war in Gaza. Fulfilling a promise he'd made to campaign donors, Trump directed the Departments of State and Homeland Security to arrest and deport those students on the ground that their political advocacy undermined U.S. foreign policy interests. ICE agents arrested Mahmoud Khalil, a Columbia grad student and green cardholder, a legal

permanent resident, who at one time had served as an intermediary between protesters and the university. Later, they arrested Mosin Madawi, a Columbia undergraduate, when he appeared for a scheduled naturalization interview in Vermont. Another student, Ramesha Ozturk, a grad student at Tufts University, was arrested in Somerville, Massachusetts because she'd co-written an op-ed calling on her university to engage with students demanding that the university divest from Israel. You may have seen a video of her arrest, which shows masked agents appearing out of nowhere and surrounding her on the sidewalk as she screams in terror, apparently confused about the identity and authority of the men forcing handcuffs around her wrists and pushing her into an unmarked car. Over the course of a few weeks,

the administration arrested and imprisoned a dozen students and summarily revoked the visas of hundreds of others. As with the campaigns against the law firms and the press, the point of this crackdown on foreign students was to intimidate and silence. And this strategy was at least partly successful. Judge William Young is an 85-year-old jurist who was nominated to the federal bench in Boston by President Reagan more than four decades ago. For the past nine months, he's been presiding over a case in which the American Association of University professors, the AAP, and the Middle East Studies Association, Mesa, are challenging the constitutionality of the crackdown on student protesters. My Institute has represented the AAP and Mesa, in this case from the beginning, and we continued to represent them now.

At a trial over the summer, we presented testimony that foreign students and faculty had withdrawn from political activism, out of concern that their expression or associations would result in arrest, detention, or deportation. Professors with green cards testified of being terrified that attending a protest, signing an open letter, or even publishing scholarship about Israel and Palestine, would result in the upending of their professional and personal lives. The leaders of AAP and Mesa explained to the court that the arrests had created a climate of fear and repression on campuses around the country. In a blistering 166-page ruling issued after the trial, Judge Young held that the Trump administration's policy of targeting, the students violated the First Amendment. He characterized the government's campaign against the students as a, quote, scandalous effort to silence constitutionally protected dissent. It struck me that that phrase, a scandalous effort to silence constitutionally protected

dissent, provides a fitting description of much of what the Trump administration has been doing over the past year. So this isn't the first time the United States has been down this road. Between 1917 and 1920, the U.S. government prosecuted more than 2,000 anti-war activists under the espionage and sedition acts, and it deported hundreds of foreign citizens thought to be communists or anarchists. The First Amendment, as we know it today, emerged during that period, the first red scare in response to the realization that democracy wouldn't survive if courts didn't extend broad constitutional protection to political expression and association. Judge Hand wrote one of the most important early First Amendment decisions. He wrote it in 1917, 27 years before he spoke about the spirit of liberty in Central Park. The case involved a challenge to the postmaster's refusal to carry a magazine called The Masses,

which contained articles and political cartoons opposing the war. The Postmaster argued that the magazine violated the Espionage Act, but Hand interpreted the act narrowly because he concluded that interpreting it broadly would have dire implications for free speech. Hand was only a lower court judge at the time, but his reasoning was influential, including with the Supreme Court justices, Oliver Wendell Holmes, and Louis Brandeis. Beginning in 1918, Holmes and Brandeis wrote a series of dissents and concurrences that cast the First Amendment as the nation's preeminent guarantor of the principle that the people are sovereign over the government, and not the government over the people. Over time, this conception of the First

Amendment came to be embraced by the whole court. Today, First Amendment doctrine provides powerful defenses against censorship for those willing to use them. For example, it prohibits the government from censoring the press, whether by prior restraint or criminal prosecution. It bars the government from punishing people because of their political viewpoints, from arresting them or imprisoning them, or investigating them, or subjecting them to financial or other sanctions. It also limits the government's power to use the denial of funding as a mechanism for silencing dissent. Of course, most other democracies, including this one, extend constitutional protection to free speech, too. But no society on the planet gives free speech as broad a scope as the United States does, and no society protects

it as categorically. It's precisely because free speech is so well protected in the United States, so well fortified by the Constitution laws and the courts, it's because free speech is so well fortified in the United States that it's been so dispiriting to watch the leaders of the most powerful American institutions whither and shrivel in response to Trump's threats. Rather than assert their First Amendment rights and court, a task that literally no one was better situated to do, some of the most sophisticated and well-resourced law firms in the country simply agreed to Trump's demands. They let Trump tell them who they could hire, who they could represent, and to whom they could provide their services pro bono. The leaders of some of the country's most respected universities,

including Colombia, I'm sorry to say, entered into analogous settlements, agreeing to curtail academic freedom, admit fewer students from abroad, shut down diversity offices, and suppress student protests. Some law firms and universities have sued, and I'll come back to that. But it's important to understand, that those cases have not been the norm. Resistance has been exceptional. Surrender has been the rule. I still find it astounding to take one example that no American university filed suit

to challenge the arrest and threatened deportation of their students for their peaceful advocacy against the war in Gaza. That advocacy was controversial in some quarters, but not even the Trump administration contended that it was illegal. So why didn't the universities go to court? even setting aside the university's obligations to their students, surely it should have been obvious to university leaders that their institutions can't survive long if the government can summarily imprison and deport students for speech that's protected by the Constitution. To their credit, the AUP and Mesa filed the case that universities didn't.

but it will be a permanent stain on American higher education that universities mainly left it to others to defend their students and to champion the freedoms that are essential to the university's own survival. I wish it were otherwise, but capitulation has been the rule for media and technology companies as well. Even before Trump returned to the Oval Office, technology moguls, including Jeff Bezos, Mark Zuckerberg, and Sam Altman, made huge donations to Trump's inauguration. fund in the hope of ingratiating themselves with the incoming president. In the days leading up to the election, the billionaire owners of the Washington Post and the Los Angeles Times, Bezos and Patrick Sunshung, both vetoed editorials that would have endorsed Kamala Harris, not because they disagreed with the editorials, but because they concluded that crossing Trump was just too risky. Media and social media companies also paid obscene amounts of money

to Trump to settle feeble lawsuits that he'd filed. against them during the presidential campaign. Trump claimed that ABC News star anchor George Stephanopoulos had defamed him by saying on TV that a jury had found him liable for rape, when in fact it had found him liable for sexual assault. Among First Amendment litigators, there was near universal agreement that ABC would have won the case if it had defended itself in court. But ABC didn't want to be adverse to the president, so it paid him $15 million to end the suit. CBS paid Trump $16 million to settle a lawsuit in which he complained about inocuous edits that the network had made to an interview with Kamala Harris.

MEDA paid Trump $25 million to settle an equally frivolous lawsuit over META's decision to suspend Trump's account after the events of January 6, 2021. All of these companies had the law on their side, but they folded. And once they folded, others folded too, entering into their own settlements with the Trump administration, or changing their practices preemptively in the hope that doing so would keep them out of the administration's crosshairs. It sometimes said that courage can be contagious, but it turns out that cowardice can be contagious too. Even today, the leaders of many of America's most important institutions often seem to be engaged in a desperate, panicked effort to anticipate Trump's next fixation and to conform to Trump's preferences before Trump feels it necessary to state them.

Here's a social media company adjusting its content moderation policies to accommodate white nationalists. Here's the National Portrait Gallery, removing a biography of President Trump because it says accurately that he was twice impeached. Here's a technology company deleting an entirely lawful app from its app store because ICE has raised concerns. And here's CBS News,

nixing a story about the Trump administration, deporting Venezuelans to a notorious prison in El Salvador, because Stephen Miller, the president's advisor, has declined to be quoted in the story. Just a few weeks before he returned to the Oval Office at the beginning of last year, Trump told a reporter, quote, In the first term, everyone was fighting me, but in this term, everyone wants to be my friend.

Now, that's not entirely right, but it's not entirely wrong either. At least among the leaders of America's elite civic institutions, No one wants to cross Trump. Fear is the spirit of the Times. I mentioned earlier that the FBI recently raided the home of a Washington Post reporter and seized her laptops and phones a serious escalation of Trump's effort to intimidate news organizations that report critically about his policies. Press freedom groups condemn the raid, but Bezos, the Post's owner, made no public statement

at all. To my knowledge, he still hasn't made one. So perhaps it's oversimplifying things to say that American elites have failed to defend their institutions and to defend the freedoms that are important to their institution's survival. After all, all of the options presented to these leaders were bad. They had to make difficult choices under immense pressure. Surely they just made the decisions they thought would serve their institutions best, which is what it was their jobs to do.

Let's consider more carefully in the time we have left, why so many institutional leaders settled with Trump and whether their decisions did in fact serve their institutions well. Harvard has been one of the few institutions to stand up to the Trump administration, much to the annoyance of President Trump, who a week after this lecture was delivered

announced his administration is seeking $1 billion in damages from the university over allegations of anti-Semitism. This is CBC Ideas. I'm Nala Ayyad. This program is brought to you in part by Spex Savers. Every day, your eyes go through a lot. Squinting at screens, driving into the bright sun, reading in dim light, even late-night drives.

That's why regular eye exams are so important. At Specsavers, every standard eye exam includes an advanced OCT 3D eye scan, technology that helps independent optometrists detect eye and health conditions at their earliest stages. Take care of your eyes. Book your eye exam at Specsavers today from just $99, including an OCDs. scan. Book at specksavers.cavers.cavers.cautrists. Prices may vary by location. Visit specksavers.cavers.cai to learn more. This ascent isn't for everyone. You need grit to climb this high this often. You've got to be an underdog that always overdelivers.

You've got to be 6,500 hospital staff, 1,000 doctors, all doing so much with so little. You've got to be Scarborough. Defined by our uphill battle and always strives. driving towards new heights. And you can help us keep climbing. Donate at lovescarborough.ca.a. You're listening to Jamil Jaffer's 26 Horace E. Reed Memorial Lecture, The Spirit of Liberty.

Jaffer continues by asking why so many institutions have capitulated to the Trump administration. First, some leaders settled with Trump because they doubted they could win in court. They concluded that some of Trump's threats were too vague to be legally actionable, that some injuries were too diffuse, and that some injuries just weren't susceptible to judicial remedy. They also doubted that district court judges would be

willing to side with them against senior government officials, whose motives the courts are often unwilling to question. Over time, though, it's become increasingly clear that the courts, the lower courts at least, are ready to play their constitutionally assigned role. The law firms that sued when Trump revoked their security clearances and borrowed them from federal buildings. All of them won quick victories. Many universities settled, but Harvard sued over Trump's freezing of federal grants, and it won. A slew of media organizations have reached settlements with Trump, but the New York Times defended itself when Trump sued the paper over its reporting about his tax filings, and it won, too, with the judge even ordering Trump to pay its legal fees. The record of

the past year strongly suggests that the institutional leaders who settled did so precipitously and unnecessarily. Second, some leaders believe they could win in court but concluded that winning in court wouldn't be enough. Their reasoning went like this. The federal government can punish a media organization in many different ways. It can deny reporters' access to government officials or facilities, expel them from the White House press pool, search their journalist homes, threatened their broadcast licenses, investigate them for publishing national security secrets, and refuse to approve proposed universities are similarly exposed. The government can freeze their funding, but it can also refuse them new grants. It can threaten their accreditation, deny visas to their foreign students,

investigate them for supposed violations of anti-discrimination law. What good does it do to win a court order against one coercive action when the government has so many other coercive. possibilities available to it. That reasoning led many institutional leaders to conclude that settlement was the better course. What this line of thinking overlooked is that settlements with Trump turn out not to be worth the paper they're printed on. He just doesn't honor them. To the contrary, he views any concession as a sign of weakness and as an indication that there's more value to be extracted. And so universities that expected that their settlements would end their conflict with the administration have been subjected to continuing pressure campaigns. The same has been true of the

news organizations that paid Trump millions of dollars to withdraw his frivolous lawsuits. Meanwhile, the cost to the institutions that settled, not to mention the cost to our democracy, have been profound, even if they've been difficult to measure. CBS was once the most respected news organization in America, thanks ironically to its fearless coverage of McCarthyism. it's a punchline on the late-night talk shows. The law firms that capitulated to Trump have lost not only their credibility as advocates, but also some of their clients, partners and associates. The leaders of these institutions were absolutely right to conclude that litigation would be risky and costly and insufficient. But we know now that litigation for all of its drawbacks

was preferable to the alternative. Third, some institutions settled with Trump because they were sympathetic to his administration's agenda or to parts of it. Some university leaders were sympathetic to the Trump administration's criticisms of affirmative action and DEI, and they shared the view that elite universities had become hostile to conservative viewpoints and to white men. Some university trustees and alumni thought the arrests of foreign students who had participated in pro-Palestinian protests were not just justified but overdue. Some trustees, administrators, faculty, and advocacy groups saw in the Trump administration's hostility to higher education, an opportunity to institute changes that they themselves have been advocating for many years.

I said earlier that universities had capitulated to the Trump administration, but in some cases, the dynamic was more collaboration than capitulation. I think we've already seen that this strategy was short-sighted, too. The Trump administration has seized on concerns relating to anti-Semitism, and DEI, to justify a much broader and still expanding attack on higher education. Judge Allison Burroughs, who presided over the case in which Harvard successfully challenged the cancellation of its grants, wrote that the Trump administration has used anti-Semitism as a smokescreen. That assessment seems exactly right to me. The Trump administration is similarly using free speech

as a smokescreen for all sorts of censorship. For example, in the name of free speech, it's revoking the visas of researchers who study misinformation. In the name of free speech, it's investigating news organizations for their exercise of editorial judgment. And in the name of free speech, it's demanding the universities, as I said earlier, abolish departments that belittle conservative ideas. So those who've tried to make common cause with the administration on issues relating to equality and free speech have been used. Finally, some institutional leaders thought it would just be better if some other institution did the fighting. This is always the dynamic with bullies, of course. There's always the hope that if one keeps one's head down, the bully will focus his attention on someone else. And there's always the hope that

someone else will do the difficult work of putting the bully in this place. Courage is a public good, and so it's undersupplied. In describing the atmosphere in the United States, in the years immediately after the Second World War, Norman Mailer wrote that, quote, a stench of fear had come out of every pore of American life, that the nation was suffering from, quote, a collective failure of nerve. He lamented that the only courage,

with rare exceptions that we've been witnessed to, has been the isolated courage of isolated people. The landscape in the United States now is similar and for similar reasons. Most of the leaders of the United States elite universities, universities, news organizations, law firms, and cultural institutions, they understand very well that Trump poses an extraordinary threat to the democratic freedoms and values that are essential to their own institutions thriving and indeed survival. But there's a collective failure of nerve. The leaders of the United States, elite institutions haven't been willing to use the tools that

the Constitution, the laws, and the courts afford them. They seem also to lack the political structures and human relationships that would allow them to organize a coordinated collective response to the threat that Trump poses. Judge Hand delivered his Spirit of Liberty speech on May 21st, which at that time was known as I am an American Day. It was a naturalization ceremony, a celebration of immigrants, and of all they contribute to American life. The kind of celebration that Mosin Madawi, the Columbia undergraduate, might have attended had he not been arrested when he arrived for his naturalization interview.

The speech is about courage. Pan celebrates immigrants who had, quote, the courage to break from the past and brave the dangers and the loneliness of a strange land. He wonders, quote, what was the object that nerved us for those that went before us to this choice?

And then when he asked them to pledge their faith in the glorious destiny of our beloved country, he tells them that the America of their aspirations will never come into being, except, quote, as the conscience and courage of Americans create it. So to hand, leaving one's home requires courage, but creating the nation of one's aspirations and defending it, those tasks require courage too. He pays tribute to the, quote, young men who are at this moment fighting and dying

for an America that has not yet come into being. The spirit of liberty is still easy to find, in the United States. But you have to look beyond the leadership of elite institutions. Among ordinary citizens, there's no scarcity of civic courage. The No Kings Day rallies over the summer drew around 5 million Americans to demonstrations in 2,000 cities and towns across the country. Thousands of Americans protested President Trump's deployment of the National Guard in Portland, Los Angeles, Chicago, and Washington. Government lawyers have resigned rather than participate in corrupt investigations and prosecutions.

You've all seen the footage of Americans around the country trying to protect immigrant neighbors from ICE, even as ICE raids have become increasingly violent, and Vice President Vance has assured ICE agents falsely that they enjoy absolute immunity for actions taken in connection with their duties. The tens of thousands of American students who participated in peaceful demonstrations

and encampments meant to assert the humanity of Palestinians, Those students also exhibited an admirable civic fortitude, a willingness to pay a personal price for the defense of human rights. One of the people who testified in the case that I mentioned earlier, the case in which the AUP and Mesa are challenged in the arrest of student protesters, is a guy called Bernard Nicol. He came to the United States as a student from Germany, three decades earlier, and then stayed on to teach philosophy, first at Tufts and then at Harvard. When the trial began, he'd just completed a three-year term as chair of Harvard's philosophy department. Professor Nicol is a green cardholder, not a U.S. citizen, but until very recently he felt that he and his family were secure in the United States, and he didn't hesitate to speak out publicly on controversial political issues. He assumed that the First Amendment protected him.

The arrests of foreign students in the spring of 2024 made him suddenly aware, of his own vulnerability. Watching the video of masked ice agents arresting Rumsia Azturk, the tough student, was a particular shock. He testified at trial that he decided when he saw that video that he would, quote, keep my head down completely. I would not go to protest. I would not write.

I would not sign on to public letters. And any other potential forms of publicity, I would just avoid. During a hostile cross-examination, a government lawyer asked Professor Nichol why, if he was really so afraid of government retaliation, why did he agree to testify in a case in which ICE was a defendant? If he'd resolved not to sign on to public letters and engage in public advocacy, why was he here in court testifying against the government? This is what Professor Nichols said in response. You know, anybody can sign on to an open letter. Anybody can go to a protest. My sense was that in this trial, somebody in my specific situation, somebody who is a senior

scholar with a secure position at Harvard, I don't know that there are many people who could have done this. So I thought this is something that's worth it. This is where I live, and I want this to be a country and a nation of laws, not men. I believe in these kinds of processes and procedures. So this is me doing my part. Other faculty from universities around the country offered similar testimony. They were fearful that their participation in the lawsuit would provoke government retaliation, but they participated, nonetheless, out of a sense of obligation, to their American families and friends, their students, and to the democracy they had made their own. They did their part. If the United States is going to return from the brink of this abyss, it will be because ordinary

people, citizens and non-citizens alike, still care deeply about their democracy, even if so many elites have shown themselves unprepared to defend it. Americans reclaim their democracy after the first red scare, and again after the second. Perhaps we'll reclaim it again after this one. But learn at hand was surely right about this. It will take more than Constitution's laws and courts. It will take courage to. Thanks again to all of you for being here tonight. Jamil Jaffer delivering the 2026 read lecture at Dalhousie Shulik School of Law. The audience Q&A is hosted by Ideas producer Mary Link.

A couple of questions I'm going to get you to get a little bit closer to the mic. And then I'm going to ask for anybody who wants to ask questions and potentially get on ideas and become famous. I don't know. Jemil, I've just sort of curious, do you get a sense at all that you work at Columbia that there's a regret by the leadership. I know the leadership's changed, but that they made concessions to the Trump administration? I'm not sure I want to talk about Columbia's leadership specifically, but I am in a lot of conversations with leaders of institutions like Columbia, not just universities, but media organizations and to some extent law firms too. And yes, my sense is that

at least some of these leaders see now that the settlements have not achieved what they had hoped they would achieve. It's hard to deny that, I think. I really do think I tried to emphasize this in my talk, too, but I really do think that these leaders were in a really difficult position, that these were hard choices, all the options were bad, and easy for me to sit here criticizing them. I understand all of that, and yet I feel like, you know, they've made the wrong decisions. and that our democracy has paid a significant price for the leaders of these institutions, failure to stand up for their institutions and for the freedoms that their institutions rely on. But can you talk to me then about the chill?

Do you see in discourse among students, public discourse, that there is a chill still? Absolutely. Yeah, I mean, I think that students are terrified of, especially foreign students, are terrified of speaking out on any controversial political issue. You know, it started with Israel, Palestine, but it's, you know, predictably not stopped there after the Trump administration said, we're going to deport foreign citizens who participate in pro-Palestinian advocacy. They said, well, we're going to deport foreign citizens who have hostile attitudes towards the United States, a phrase that they haven't, you know, defined.

After that, they canceled the visas of people who criticized Trump. Charlie Kirk, the conservative activist who was tragically murdered in Utah last year. And more recently, they've canceled the visas of foreign citizens who are studying misinformation, disinformation. So, you know, if you're actually studying misinformation? Yeah, yeah, yeah. This is Christmas Eve, the Trump administration announced that it would cancel the visas and deny entry to foreign citizens who study disinformation or misinformation, who work on content moderation, they see all of these activities as censorship. You know, it's just an upside down understanding of the world.

You know, it started narrowly focused on these students who participated in pro-Palestin advocacy, but, you know, now the attack is much broader. You've argued before the Supreme Court in the States. The Supreme Court feels, well, not feels. It's in the justice system feels more and more and is more and more politicized. the current Supreme Court, which is heavily on the conservative side in terms of judges and appointments, have given President Trump incredible extraordinary powers, and they've been criticized for that by some. How much confidence do you have these days in the Supreme Court, not only in their judgments, but to uphold democracy?

Yeah, I mean, I have been disappointed with many of the Supreme Court's rulings over the last year. I think the Supreme Court had opportunities to draw lines and it should have drawn lines and it didn't. Now, that said, the Supreme Court is often very responsive to public opinion. And if the Supreme Court sees that the Trump administration doesn't have public support, it's conceivable that the Supreme Court will be more willing to use its own political capital, its own institutional capital, to draw those lines. But it's a real question. is the Supreme Court going to, you know, fulfill its constitutional obligations?

And even if it does, what will the Trump administration do in response? Because, you know, with lower court decisions, the Trump administration has already, you know, complied with those decisions very unevenly. Are you surprised, though, that they gave these additional powers to Trump? I mean, it's quite extraordinary in the amount of powers they have. Are you surprised at some of the legal minds there, even if they are? appointed by conservative presidents that they would have given him so much power? Well, I mean, I think that some of this is a kind of intellectual inertia in the sense that, or

this development of the theory of the unitary executive that predates Trump, you know, all the way back to 9-11, at least. The Supreme Court has been, there's been a conservative movement to invest the presidency with more power. and, you know, that movement again predated Trump and it sort of continued after Trump, you know, took office. Now we're seeing some of the implications of centering all of this power in the, not just the executive branch, but the presidency in particular. And a lot of us look at this and our reaction is, well, you know, this is precisely the reason we said 15 years ago. It was a mistake to put all this power in the executive branch and in the president in particular, whether the Supreme Court.

court sees it that way. I don't know. Can it be reversed? I mean, I'm not a lawyer, so here I am asked. Yeah, I mean, in, yes, in theory, the Supreme Court could walk it back. It seems unlikely to me that this Supreme Court, the makeup it has right now, is going to walk back decisions relating to executive power. And plus, I can't imagine any president wanting them to to walk back anyway. So, I mean, I don't know about that. But at the core of democracy, is it, the people themselves and their actions as opposed to any institution, political party, the judicial system, is that what's going to make a change? And if so, how does that come about? I mean, the most important thing is that people go and vote, right? And we will have midterm elections

in the United States later this year. And it's conceivable that the political landscape will change pretty dramatically after those midterm elections. One question is whether those elections are going to be free and fair. And one of the reasons we spend so much, or, you know, my institute focuses on the First Amendment. One of the reasons we think of the First Amendment is especially important is that it protects the process of democracy. The First Amendment is the process of democracy, right? This is Pan's theory of the First Amendment. It's the theory that, you know, the Supreme Court in the United States has adopted, that the main point of the First Amendment is to ensure that we can govern ourselves, that we, the people, have the ability to talk to one another about the government,

have the ability to hold the government accountable, so that we can achieve change by peaceful means rather than by violence. That's the point of the, you know, the First Amendment. Do you have hope that things are going to change? Like people are said, oh, we got the midterms. I mean, how much. Yeah, no, for sure. Yeah. I mean, mostly because things were terrible during the first Red Scare and things were terrible during the second Red Scare. as well, right, during the McCarthy era. I've been reading a little bit about it and just been surprised at how close the parallels are with so many powerful institutions cowed by threats and bullying by government officials, you know, this kind of intense panic about particular kinds of

threats, overstatement of particular kinds of threats, and a suppression of free speech and the freedom of association. So that is sort of common. If you look at the era during and after the First World War and then right after the second World War, you see the same kinds of things as we're seeing now. And somehow the United States managed to, you know, the phrase I used earlier was reclaim its democracy. I hope that the fever will at some point break and will have a chance to rebuild again. But, you know, right now it's pretty scary. Okay. Any questions? I'd love to have some questions. Yeah, it'd be great. Hi, I'm Alex. I'm a student here. You talked a little bit about Israel Palestine and how part of the university's response to that and their collaboration with the Trump

administration was perhaps spurned by an existing willingness to go after some of the student protesters in some cases or critique free speech. And we saw some of those sort of not necessarily all out attacks, but a little bit of that free speech being curtailed in terms of campus protests on that issue, specifically under the Biden administration with bipartisan support and still in some cases with bipartisan support. And I think you talked about both red scares. And I think you talked about both red scares, that was true in both of those cases as well, that initially before things got too out of hand, and sometimes even after they did get out of hand, there was that initial bipartisan institutional support of rooting out sort of wrong think or communist when it threatened

a generally accepted idea of what was acceptable. So I'm wondering in light of that, I guess, sort of a two-par question. First of all, how much this is actually Trump-specific in terms of the institutional failings versus he's just exploiting cracks that were already there and always existed. that sort of baseline American institutional framework. And then second of all, if it is more of an institutional failing, when we're rebuilding specifically from the attacks from the Trump administration, how do we sort of expand that net of free speech in the future to ensure that it captures everybody and not just sort of what's within a generally politically acceptable realm? So, I mean, you're absolutely right that some of the crackdown on these student protests started

before Trump returned to the Oval Office. And in fact, Columbia called in the police on student protests twice during the Biden administration. So at least to some extent, the divisions were already there and Trump just exploited them. But he did exploit them. I mean, students were being arrested before Trump came along, but they weren't being imprisoned and deported. And that's, you know, that's an important difference. And then, as I mentioned, Trump has taken the powers that were initially used against these students and now just started to use them much more. broadly. But I also think that, you know, you're right about the parallel that if you go back to the second Red Scare, it wasn't just McCarthy. It was the Democrats, too, were concerned about communist infiltration of the government. And that grew into the Red Scare. But the second part of your question is a huge question, this question of like, how do we ensure that the First Amendment protects everyone? I mean, if the Supreme Court actually believes in the First Amendment, this would be a great time for the Supreme Court to issue kind of historic ruling, relating.

to these students who were arrested for their pro-Palestinian political advocacy, because it would demonstrate that they're serious when they say that this is a protection that extends to everybody. It's not just available to the people we agree with. It's available to people we disagree with as well. And the great First Amendment decisions were decisions in which everybody understood that the Supreme Court probably disagreed pretty vehemently with the speech that was at issue in those cases and yet protected it, you know. So, you know, I don't want to be too sort of starry-eyed or have too rosy a picture of what might happen here, but it's not totally inconceivable that we come out of this with a reaffirmation of the First Amendment that draws in a lot of people who have lost faith in not just the First

Amendment, but the idea that these protections are really for everybody. Thank you. I'll try and ask my question without being too redundant. But I find it interesting that since like independence there's been a lot of theory that america is only operating with a countdown in the background and that there's only so long that they can have like a democracy as they've designed it and when you i'm also trying to maybe challenge a bit gently your idea that people are able and like see an opportunity to reclaim their democracy because a lot of people thought they were doing just that when they voted for Trump, right? Like he positioned himself as he was going to like come in and drain the swamp. And now they're seeing like a bit of a disillusionment.

Do you think that Americans feel they can only go back and forth for so long? Because surely the next election, people won't gain an appetite to vote Democrat. And then also too, I thought it was interesting your reference to the Red Scares, because those are more spread apart events. And there's a bit of a recovery in between. Whereas now you just have. so many scandals that we've accepted a new normal in democracy and it's very pessimistic and cynical. We have very sensationalist news. We have total lack of faith in politicians. And I'm curious if you think that the system is kind of in a later stage or if you think it will kind of self-correct because we'll get close to the edge and then pull ourselves back. And I could see that happening

because the Canadian election was a bit staggered behind the American election. And we kind of were on course to vote more conservatively. And then you can see like it's a bit of a global phenomenon that people are more reluctant now to kind of be drawn in by those narratives. Yeah. I mean, such great questions. So one thing that maybe I see a little bit differently than you do. So I don't think it's just back and forth. I don't think that we're going just back and forth.

It's true that we go back and forth between Democrats and Republicans, but Biden was quite different from Obama. And, you know, the next person might be quite different from either of them. And in some ways, you're right that I think a lot of people who voted for Trump wanted to reclaim their democracy. People might want to reclaim their democracy for different reasons, right? And some people, I think, were just frustrated, as too weak a word, but frustrated that the, sort of spoils of the last 20 or 30 years have been distributed so unfairly. You know, the United States is the wealthiest nation in the history of the world. And yet, you know, so many people in the United States live in poverty. And not just poverty in the sense that

they don't have any money, but even the institutions around them are poor and thin. The media, which you referenced, is not serving the purpose we needed to serve. There's no local news anymore. And, you know, it's not inconceivable that some of the people who voted for Trump could join together with some of the people who didn't vote for him and try to reclaim a different kind of, you know, democracy. So I don't know. I'm not, I'm not ready to kind of give up on the whole thing. And, you know, when I see all these people out in the streets in Minneapolis and around the country, you know, that gives me faith that there are a lot of Americans who want things to be better. You know, they care about their neighbors. They feel solidarity with the people. around them. And it's not just that they want things to be better for themselves, that they want better country. So I guess I'm not ready to write it off yet. Okay, I just want to thank very much Jameel Jaffer for tonight and his insights.

Thank you. That was the 26 Horace E. Reed Memorial Lecture titled The Spirit of Liberty by Canadian Legal Scholar Jamil Jaffer. This episode was produced by Mary link. Special thanks to Sarah Harding and Elizabeth Sanford. Technical production, Pat Martin, and Sam McNulty. Lisa Ayuso is the web producer for ideas. Senior producer, Nicola Luxchich. Greg Kelly is the executive producer of ideas, and I'm Nala Ayyad.