Voices of Freedom - Interview with Peter Berkowitz

Episode Date: September 5, 2024

An Interview with Peter Berkowitz The US Constitution is one of the greatest governing documents in history. No other charter has so deliberately advanced the belief that the government’s main purpose is to protect the individual rights of its citizens. The founders, recognizing the natural rights of mankind, created a seminal document that protects an individual’s unalienable right to life, liberty and the pursuit of happiness.   Despite the exceptionalism of the Constitution and its battle-tested endurance, there are grave threats that could severely undermine and weaken it.  As we continue our 20th anniversary celebration of Bradley Prize winners, our guest on this episode of Voices of Freedom is Peter Berkowitz, one of the country’s leading political thinkers and Constitutional scholars. Berkowitz warns that a decades long movement to distort the meaning of rights, the weaponization of the legal system, and a general lack of understanding of our rights, pose serious challenges to the preservation of the Constitution.     Topics Discussed on this Episode:  ·         What drew Berkowitz to the study of the Constitution and America’s founding principles  ·         Current threats to the Constitution  ·         Politicization of the Supreme Court  ·         Expansion of the administrative state  ·         Differences on the right about the role of government and foreign policy  ·         America’s role in the world  ·         Pro-Palestinian protests and anti-American sentiment  ·         Opportunity for higher education reform  ·         Will the Constitution endure?  Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution. He previously served as the Director of the State Department’s Policy Planning Staff, executive secretary of the department's Commission on Unalienable Rights, and senior adviser to the Secretary of State. Berkowitz is a columnist for RealClear Politics and is a 2017 Bradley Prize winner.   

Hello and welcome to Voices of Freedom, a Bradley Foundation podcast. I'm Rick Graber, President and CEO of the Bradley Foundation. On the podcast, we'll explore issues that affect our freedoms with a focus on free enterprise, free speech, and educational freedom. So let's get started. Citizens across the ideological spectrum are voicing a lot of alarm these days about the future of the country and our constitutional rights. To many, the world's longest surviving written charter of government is under attack. But others would say, no big deal. There's no need to panic. The Constitution

is durable. And yes, it needs to be defended. But it's survived wars and economic crises and political and social upheaval. Our guest on this episode of Voices of Freedom is a leading constitutional scholar who joins me to provide his thoughts on the state of our founding documents and our principles. Peter Berkowitz is the Tad and Diane Tauby Senior Fellow at the Hoover Institution. He's written for numerous publications. He's done seminars on the principles of freedom and the American constitutional tradition. He's a columnist for Real Clear Politics and, of course, is a 2017 Bradley Prize winner.

Peter, welcome. It is great to have you. It's good to be with you. Thank you very much. My pleasure. Well, let's just jump right in and start with a little bit more about you. At what point did you decide that you wanted to focus your career on the study of American principles and the U.S. Constitution? What got you there? Well, as you can imagine, a lot of factors were involved, but a turning point occurred actually shortly after I graduated from college. It took a visit abroad.

I'm not the only one, but it took a visit abroad for me to appreciate the importance of America's founding principles and the greatness of our constitutional tradition. Shortly after graduation, I traveled to Israel, which is now many decades ago, a wonderful country, wonderful people. But it was also a country that was rent by serious internal divisions and faced great challenges from abroad. And it was only in my travels there that I began to appreciate the significance of the achievement of America's great experiment in ordered liberty, and I resolved to understand that achievement, understand America's accomplishments

better, and I'm still at that task. I mean, I totally agree. I had the honor to live overseas for about six years, and it really does cause you to appreciate what we have in this country, which it's real easy to take for granted. Real easy. When you don't see what others are experiencing, particularly Israel. I lived in the Czech Republic, some of the same different but similar issues there as well. Fascinating. In any event, there's a lot of angst, and I think that's a fair word in the country right now, about the future of our constitutional rights. And, you know, it's election season.

So some of that stems from concerns about this election and recent elections. In your opinion, how serious are the threats to the Constitution? I think there are serious threats afoot. Some have been developing for many years in the political sphere, in the intellectual sphere. For example, one threat is the general proliferation of rights in the United States. This cheapens our understanding of what a right consists in. There has been for 30 or 40 years now an effort by various political factions to get their political preferences redefined as rights. Now, that's a great achievement.

If you get your political preference, I take an extreme example. Everybody should have equal access to sparkling water. Sparkling water from clean mountain streams. Everybody should have a right to that. That turns a political preference into something that is objective, necessary, and universal, something you can't seriously debate. So that transformation actually undermines democratic debate and cheapens the meaning of our basic rights and fundamental freedoms. Of course, also closer to this moment, we see what I regard as another threat,

which is the weaponization of the legal system against political opponents. And I would go on this matter, I would go all the way back to what I regard as the deeply unjust prosecution of Scooter Libby during the George W. Bush administration. In other circumstances, happy to detail that. But we see it with the use by the Justice Department and the FBI of opposition research by the Clinton administration to hamstring the Trump administration

for two years. The Horowitz report, the Inspector General of the Department of Justice, and then the Durham Report detailed the abuses of legal procedure, multiple abuses by the Muller team, FBI, Department of Justice. In my own opinion, we see this in the four criminal indictments that have been brought against former President Trump. Not enough time here to enter into the details, but in every single case, I believe you find extravagant, convoluted theory of law, which would only have been brought against Donald Trump. best case against him, I suppose, was the one in Florida, which was dismissed by Judge Cannon on the grounds that Jack Smith was improperly appointed a special counsel. So finally, I should add, I'm worried about our constitutional system and rights because our educational system not only

fails to provide an education and basic rights and fundamental freedom, but our own educational system has turned on, turned against the constitutional understanding of basic rights and fundamental freedom. Wide swaths of our educational system teaches that the American constitutional order is fundamentally unjust and requires revolutionary transformation. So the threats to the preservation of our constitutional order are real and serious. Let's come back to the education point a little bit later. I couldn't agree with you more. Really kind of a related topic. I think another reason that people believe that fidelity to the Constitution is faltering to some extent is the politicization of the Supreme Court and the lower courts. A couple weeks ago, we watched the President of the United States go

on national television for the sole purpose of attacking the Supreme Court, and those attacks have continued since that initial appearance. I mean, that's unheard of. I mean, I don't ever remember something like that happening. So, I mean, how can trust in the court and for that matter do its job. What is the job of the United States Supreme Court and the other courts under it? It is to provide rulings based on the law, provide reasoned accounts of its holdings. I believe the United States Supreme Court has been doing that. It must continue to do that. We also need political leaders who recognize the court to be courts. In my judgment, the president's denunciation of the court was a political denunciation. He did not like the outcome, so he condemned the court. He did not engage inry to believe that the court is just another partisan body. If it reaches a result that's unfavorable to Democrats, Democrats condemn it in partisan terms. Now, the citizenry should be better equipped to resist that sort of demagoguery,

regardless of what party it comes from. How do you create a citizenry that's capable of resisting demagoguery? Through education. We ought to have an education in constitutional fundamentals. We don't anymore. In fact, as I've already mentioned, and as I'd be happy to elaborate, one is more likely to find in our educational system the teaching of hostility to our system, the belief our system is fundamentally bound up with ideas, notions, institutions that are fundamentally hostile to equal rights for everybody. And I must add here, this goes for American legal education. I'm also a product of American legal education. And in my experience, I've also taught as a law professor.

I believe that significant parts of the legal professoriate are keen to reduce law, the judiciary, to expressions of political power and authorizes politicians to denounce courts merely because they disagree with the policy outcomes and not because they have superior legal arguments. So these are all dangerous tendencies. But once again, and I have a feeling it will not be the last time in the short interview, I come back to education as the way back from our serious problems. And we've seen some of these pronouncements come out of the legislative branch, too. When Senator Schumer stood on the steps of the Supreme Court and really threatened justices by name without any analysis, just again, it's a decision that he disagreed with. That just can't happen. I mean,

there's got to be boundaries for our elected leaders, and there don't seem to be many these days. Yes, as if they've forgotten what their role has in the executive branch, in the legislative branch, as if they've forgotten what their proper roles are and what are the specific virtues associated with those roles. Yes, the Supreme Court is engaged in a different activity than our legislators. Perhaps Senator Schumer's language would have been appropriate to a legislator or Republican with whose vote on this legislation or that legislation he disagreed with. Entirely inappropriate when directed at the United States Supreme Court or any other part of the judiciary.

And neither one of us are saying there shouldn't be vigorous debate on policy, on issues. We can disagree on proper role of government and so forth. But not like this. We are both in favor of vigorous debate and disagreement. It's essential to the health of our republic. Yes. Let's talk about the administrative state for a bit. The founders never intended for unelected bureaucrats to make the decisions that they do that impact our daily lives. Politicians have sort of tried to rein it in with limited or arguably no success. What do you think of some practical solutions to ensure that Congress and not government agencies are making policy? And maybe the recent reversal of the Chevron decision is a start, but it's just a start. I think that's just right. It's a start,

but just a start. We should also underscore that while you're of course right, the founders could have never imagined the growth of the administrative state with which we're dealing. They certainly understood the importance of administration. Hamilton emphasizes in the Federalist the importance of steady administration of the laws to stability of the republic, but not the kind of administration at state we have in proper interpretation of the law. This, as Madison says in Federalist 57, is the very definition of tyranny when one unit of government is exercising more than one of the key powers of the state. So what can be done? You've already identified the Supreme Court playing an important role by cabining in the discretion that administrative agencies have. Congress can do more. I'll make one simple observation here, perhaps a tad snarky, but only a tad snarky. I think the Congress could spend a little less time with televised hearings and a little more time

carefully crafting laws, carefully crafting statutes, which avoid giving administrative agencies, with which we should have to acknowledge we cannot live without in the complexities of governing an industrial, even a post-industrial country in the 21st century. We can't do without an administrative state, but we can do a lot better in legislating agencies already cabining in their exercises of power, making sure that they are more accountable, making sure that the Supreme Court and other parts of the federal, lower courts in the federal judiciary are capable of exercising oversight over them. Better legislative drafting, more attention to legislative drafting is a one, but a very big step that courts could take. Sorry, that Congress could take. Absolutely.

Elections matter. Who's serving in these roles matters without question. So you would agree that it's the legislature that has ceded more authority than appropriate. And if you look at any of the three branches of government, the one part of government that's really not doing its job. Well, up until the recent decision on Chevron, I would have also given the courts their fair share of responsibility. Now the courts have done the right thing. And so I would say, yes, now it really is upon the legislature to provide us with better, more carefully crafted laws to hem in the unaccountable power of the administrative state, for sure.

Let's stay on the administrative state. There's a real debate going on right now on the right about the role of government. And you've written about this. What's your response to the view by the so-called national conservatives that the levers of government have to be used, should be used to achieve conservative outcomes? In other words, in effect, the right should do what the left has done, only better. Yes. So I agree that the government should be used to achieve conservative outcomes, but I disagree with what they mean by conservative outcomes. And I certainly disagree that conservatives should attempt to do what the

left has done, which is disregard constitutional forms and procedures and simply legislate their political preferences. I regard the most conservative outcomes as conserving the original purpose of the Constitution, which is to secure our freedoms. In that sense, I'm all for conservative outcomes, but many of our friends among national conservatives, like many fellow citizens on the left, believe that the proper use of government is to achieve their conception of the greatest good for human beings. Well, I think that's a mistake, whether it's a progressive conception of the greatest good or a more conservative conception of the greatest good. That is not because I'm a skeptic

about the greatest good. Indeed, one of the, in my judgment, the great achievements of the American constitutional order is that by securing basic rights and fundamental freedoms, it creates a wide space for individuals with their families, their communities, their houses of worship to pursue human excellence, to pursue salvation as they and their communities understand it. The American Republic took seriously from the beginning the tremendous diversity of the United States of America. It's true that in the 18th century, that diversity was primarily diversity among a variety of Protestant denominations, but they took it very seriously. Even in the 18th century, serious people understood that it would not be possible

to agree on one opinion about what God wanted from us. So, not out of skepticism and out of a rejection of religion, but out of respect for people's different interpretations of what God wanted from us. They created a republic, which gave a variety of religious opportunities, an opportunity to live a godly life as they saw it. And yes, if people thought that they were best off living without going to church, they could do that too in the United States. So my own view is that the best way to preserve traditional morality in the United States is to recognize that the common good in our country is a system of rights energetically protected by government, which gives wide berth to the people and communities

of civil society to exercise responsibility for cultivating souls. So are the National Conservatives saying that somehow they, the elected officials, are the proper people to determine common good? I mean, they can't be good for this country. Well, I can tell you this. They published in 2022 a statement of principles. Their fourth principle of national conservatism up on their website is that

in a Christian-majority country, it's the job of government to promulgate and uphold the principles of Christianity. Now, they actually provide no evidence that a majority of Christians in the United States of America believe that the federal government is well-positioned to determine what are the right interpretations of Christianity and to uphold them. In fact, if we go back into our tradition, if we study James Madison and we study our framers, I think the better understanding is that our political leaders will have their hands full, energetically protecting our rights, starting with religious liberty, so that we, the people, can do our best to understand the ultimate demands placed on us.

These aren't the only debates on the right. There's a real distinct division among conservatives on foreign policy. And what do you think explains the turn by some on the right towards a much more isolationist approach to international affairs? Well, I think in the first place, we see a reaction to some of the mistakes of the George W. Bush administration. I believe that the Bush administration proceeded from admirable motives, noble motives, but the Bush administration made mistakes in Afghanistan. They made mistakes in Iraq. There was an overreaching in both wars. There was a failure to fully understand the

complexities of the societies in which the United States was operating. There was a failure to appreciate the complexities of promoting freedom and democracy and abroad. So partly the new isolationism, the turning inward is a reaction to that. Also, we see the embrace of the idea of the nation state, putting America first, is a reaction to the disparagement of the nation state on the part of the left. And we see that both in their embrace of supranational authorities and subnational authorities. So, of course, identity politics. Rights really reside in groups. They're not the task of the nation state to protect.

And they're not, rights are not that which define your citizenship. It's actually they are that which define your membership in this group or that group. That shifts power away from the nation state. And then there's the progressive embrace of the idea of transnational governance. We need to use a very unlovely phrase, disaggregate sovereignty. That means shift power from the United States to the United Nations, so that the member states of the United Nations and international courts and international bureaucrats can make decisions which bind the United States. Another important mistake. So some conservatives said, no, no, we must protect the

privileges and prerogatives of nation states. I happen to believe in that. It's very important to affirm American national sovereignty, which in the American case also comes with a vigorous commitment to protecting individual rights at home. But it seems to me that the response to the overreaches of the Bush administration and the mistaken efforts to hollow out the nation state of the left is not to embrace isolationism, which has never really made sense as an ism, but is to recalibrate America's role in the world. I guess one of the other learnings of living and visiting other places is just how important America is in the world. And there is a responsibility there.

And there are, in my view, American interests in places like Europe that are just seemingly dismissed by some these days. If I can mention this quick story, this is from Israel. In the 1960s, the prime minister of Israel was told by an aide that there's a drought. And the prime minister and the prime minister of Egypt said, where? Where's the drought? And his aide said, it's in the Negev. And he replied,

thank God, I thought it might have been in the United States of America. Meaning the welfare of America was deeply important to Israel. It is deeply important to other nations of the world. Now, in saying that, I think neither of us means it's the job of the United States to simply promote democracy abroad or force America's values and principles. But we live in an intricately interconnected world today. And America actually does have an interest in maintaining waterways and airways and the free flow of goods and services and communications. Not, by the way, in the first place for everybody else, but for America. America's economy, America's welfare is deeply, intensely bound up with the international economic and political order today.

Let's stay on Israel. I mean, it was certainly a surprise to many people to see the strong anti-Israel sentiment on college campuses this past spring. Do you think that's been bubbling just below the surface for a long time? I mean, what explains the seem like instantaneous, highly coordinated pro-Palestinian protests? Yes, I do think it has been the forces that sort of exploded on campuses on October 7th have been building up for a long time. Remember, how quickly did they explode on campuses? By late afternoon of October 7th. So that's midnight in Israel. So we know by then that thousands of jihadists had stormed into Israel, that more than a thousand Israelis, mostly civilians, were dead, including some Americans,

and that more than a hundred, it turned to be 240, Israeli civilians had been kidnapped, and some Americans too. And we knew something about the scope of the atrocities. 34 student organizations at Harvard published an open letter holding Israel entirely responsible for the violence that had been perpetrated against Israel. Now, this is on a campus where it was a punishable offense to affirm that there are two sexes. How could 34 student organizations responded so quickly? Well, here's what we need to understand. This was led by one of the student organizations, Students for Justice in Palestine.

They come in with deep hostility to the very existence of Israel. But what about the other 33 student organizations? Many of those student organizations know next to nothing about Israel. They don't know, you know, from the river to the sea, Palestine must be free. They don't know which you know, from the river to the sea, Palestine must be free. They don't know which river and what sea. But they do know this because it has been part of their education and not just at Harvard, but before they got to Harvard. They do know that America is a settler colonialist power.

Indeed, the great, the decisive settler colonialist power. They do know that America promulgates injustice around the world, that the American system is bound up with endless evil. And they know that America has a great representative in the Middle East, and that great representative is Israel. So that the fight against America, resistance to America, which these other 33 student organizations believe in, is bound up with resistance to Israel. So this is something very important to see. Yes, there has been a recrudescence of anti-Semitism on campus. That's been cultivated. But it's also being driven by anti-Americanism,

right? You can perform this experiment. It is very difficult to find somebody who is anti-American, who doesn't also hate Israel. And it's very difficult to find someone who is anti-Israel, who is also not a hatred of America. So I believe that this, what we have seen post-October 7th on campus, is a result of forces that have been encouraged on campus for some time now. You've talked about education throughout our conversation today. I mean, you think that one area where conservatives could find common ground is higher education. And you've written that conservatives have an opportunity to reform the academy, which to many seems like a really daunting task. Tell us more about that.

Well, those many who believe it's a really daunting task are entirely correct. This is a very daunting task. And yet, as I've already suggested, as your face suggests to me, you agree, it is our task. It is the essential task. And although conservatives have taken the lead in this, part of our task is to persuade fellow citizens that this is not merely a conservative task. I believe it's an all-hands-on-deck moment. I believe there are many fronts. I don't think conservatives or anybody else really needs to make this choice. So which is it? Do we try to reform the universities from within? Yes. Do we focus on institutions that are on the peripheries of universities that provide supplemental liberal education, like the Zephyr Institute at Stanford? Yes, that also. What about summer programs by

organizations like Hudson and the Hoover Institution? We do this, my home institution, and the Hertog Foundation and the Tikva Fund and AEI and others? Yes, also. And what about the creation of new alternative private universities like Ralston College in Savannah or the University of Austin in Texas? Yes, that too. But what about experiments within state universities like the Hamilton Center at the University of Florida on whose board I serve. Yes, that too. In other words, we need all these efforts and a thousand more in order to recover liberal education. Well, what is liberal education? Liberal education is education for freedom. The education is appropriate to young men and women who are being formed for freedom. And to make a long story short, that means an education that revolves around, after,

of course, literacy is attained, of course, it revolves around learning the fundamental principles of America's constitutional traditions. It involves studying the treasures of Western civilization, and it also involves learning other language and learning other cultures and learning other civilizations. Because as you suggested early on, it was an Aristotelian point about how we both learn to appreciate America. Aristotle teaches us in the politics, all serious political science is comparative political science. We can't understand our political society unless we understand its own principles and traditions, but we also can't understand it unless we understand other political societies' principles

and traditions. Now, you could say, well, you've already said it. That's a pretty tall order. Agree. Great response. A last question, Peter. And I like to end these conversations in an upbeat way. At the start of our conversation, we talked about the state of the Constitution. What gives you hope that the Constitution will indeed endure and protect the rights of our citizens for generations to come? I am reminded of a speech that Edmund Burke gave before the Declaration of Independence in which he tried to persuade fellow Brits that they should ease off on the

Americans, not because we Americans really had a right to representation in the British Parliament, even though we were being taxed, but because, as he said in the opening of his great speech on conciliation, the fierce spirit of liberty is stronger in the English colonies probably than any other people on earth. So I believe that the spirit of liberty is still strong in the United States, even though there are many forces afoot that are weakening it. And so I believe the American people remain open to arguments about the reforms that we must embrace in order to protect freedom at home. You ask how the Constitution can continue to protect rights and freedoms. The answer is, if we take upon ourselves the responsibility to protect the Constitution, and I believe in the spirit of Americans, we still have a lot to work with. Couldn't agree more. Peter Berkowitz, thanks so much for your time today. Thanks for your scholarship, your leadership on these important issues. You're making a difference. And for that, we say thank you.

Thank you very much. And as always, thanks to all of you for joining us on this episode of Voices of Freedom. Join us on Apple Podcasts, Spotify, or wherever you get your podcasts for our next conversation on issues impacting our freedom and America's foundational principles. And make sure to subscribe so you don't miss an episode. I'm Rick Graber, and this is a Bradley Foundation podcast.