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This is KZSU Stanford.

Welcome to entitled opinions.

My name is Robert Harrison.

And we're coming to you live from the Stanford campus.

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The wisdom of the ages is interwoven into it.

Aaron Hall from New Hampshire speaking about the newly drafted

Constitution of the United States in an oration of 1789.

The wisdom of the ages is interwoven into it.

Maybe that's why our Constitution ages so well.

America may be a young nation and getting younger all the time,

but it has the oldest Constitution still in place today.

That's evidence enough that it was conceived in wisdom and maturity

as its framers claimed at the time.

Thank God the framers were capable of some wisdom and maturity.

It's thanks to them that today we, the people and our leaders,

have the luxury of being dwarfs, children and pigmies

when it comes to administering this nation of ours.

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All you friends have entitled opinions that come to you as usual bearing gifts.

Today the gift is Kathleen Sullivan, one of this nation's most distinguished scholars of constitutional law,

and maybe if we're lucky one of our future Supreme Court justices.

I'll introduce her to you in a moment but first as a way of giving her something to respond to.

Let me say that one of the reasons the American Constitution is endured so long and age so well

is because subsequent generations have always assumed that the framers knew better than they did.

The founding fathers are our national gods.

We don't dare tinker too much with their work.

For somewhere in our national consciousness we understand that compared to them,

we are like children and that our fragile union depends on following the letter of their founding laws,

heating their intentions, staying within their framework.

Indeed, the founders did not quite trust us to act on our own.

To this day the Constitution does most of our legislative work for us,

absolving us of a great deal of responsibility.

Of course the one responsibility of the Constitution cannot absolve us from is that of its preservation.

This is principally the charge of the Supreme Court,

America's Council of Elders as it were, whose task is to assure that our enacted laws remain faithful to the Constitution's principles.

The challenge for these elders is to provide words for the Constitution where it contains none,

words that are consistent with those it does.

This however is not always possible.

Emerson in his 1854 lecture on the Fugitive Slave Law, I quote,

"You relied on the Constitution.

It has not the words slave in it.

You relied on the Supreme Court.

The law was right.

Excellent law for the lambs.

But what if unhappily the judges were chosen from the wolves

and give to the laws a wolfish interpretation?

These things show that no forms, neither constitutions nor laws nor covenants nor churches nor Bibles,

are of any use in themselves.

The devil nestles comfortably into them all.

There is no help but in the head and heart and hamstrings of a man.

Covenants are of no use without honest men to keep them.

To interpret Christ, it needs Christ in the heart.

The teachings of the Spirit can be apprehended only by the same Spirit that gave them forths."

When the Republic falls into crisis as it did over the issue of slavery,

the Constitution cannot save us.

Rather, it is we who must come to its rescue by resolving upon its meaning.

He was Abraham Lincoln who, at the critical moment, realized that the Constitution needed to be saved by those who,

in coming to its rescue, would decide the fate of its authority.

Four score and seven years ago, our fathers brought forth on this continent a new nation,

conceived in liberty, and dedicated to the proposition that all men are created equal.

Some have remarked that the Gettysburg Address usurps the meaning and intent of the Constitution,

which nowhere speaks about men being created equal,

let alone that the nation was founded upon a dedication to that proposition.

This may be literally true, but literalness is what the crisis was all about.

At times, the letter of the law is dead, in need of animation from the Spirit of the Living.

In such critical moments, only we the Living can decide its meaning and intent.

For the nation is not founded on a proposition, but on a dedication to that proposition.

It is we who must take responsibility for the Constitution's meaning,

who must decide its meaning and thereby render it historical.

So even though the Constitution may not trust us to act on our own,

it has no choice but to entrust itself to our custody, just as we in turn entrust ourselves to its custody.

Let me turn now to our guest Kathleen Sullivan who teaches here at Stanford,

and who until recently was the Dean of the Stanford Law School,

one of the most August law schools in the country, I might add.

Kathleen, welcome to the program. It's a pleasure and honor to have you on the show.

Thank you so much.

Kathleen, how about we start with that statement of Aaron Hall, who just after the Constitution was drafted,

declared that the wisdom of the ages is interwoven into it?

What exactly do you think he meant by that?

Well, Robert, he meant in part that the Constitution emanated from the wisdom of the Enlightenment,

that the drafters of the Constitution, a text that was written in a stuffy room in the summer of 1789 in Philadelphia.

1787 in Philadelphia, a room in which the windows were closed so that the secret deliberations couldn't be overheard by passers-by,

that the men who gathered in that room to frame the document that was then sent out to the States and ratified in 1789,

had studied in red lock and Hobbes, Rousseau and Montesquieu,

and they took from Enlightenment political and social theory the view that autonomy,

giving the law to oneself, no most, giving the law to oneself is something that it meant are capable of,

that there is a divine order, but that men on earth can create institutional designs that preserve their liberty and their property against the marauding of others

and enable people to live in a better civilization.

So they were seeking to embody that enlightenment wisdom into the framing document,

the Constitution by setting up a set of separated powers, checks and balances, division of power between the federal government and the States,

which was an attempt to put into practice the idea that institutional design on earth could be, if not as good as divine design,

at least something that would work to keep us all freer than we would be without it.

Okay, and the Enlightenment is a big legacy obviously,

but when he says it's the wisdom of the ages, that suggests to me that one goes even further back behind the 18th century,

that may be back to the Greeks, back to the Romans, and I'm wondering whether there are other legacies in the Constitution or the thinking that went into the Constitution other than that of Enlightenment reason,

and maybe we could talk a little bit about them in particular, maybe even the legacy of Christianity.

Well, let's start with the Greeks and Romans.

The framing generation did think of itself as in a direct line back to Athenian democracy and to notions of self-government that long predated the Enlightenment,

and in fact, one of the most fascinating sets of texts that comes out of the founding period is the selection of really op-ed essays that are gathered under the name of the government.

And those who wrote the Federalist Papers, Alexander Hamilton, John Jay, who later became a Justice of the Supreme Court, and most important James Madison, who was such an important drafter of the Constitution himself, when they wrote the Federalist Papers, they assumed the name Publius, referring back to Roman forebears.

And when those who disagreed with their federalization of power in the National Government wrote the Anti-Federalist Papers, they assumed names like Cato and Philadelphia.

So these were men who modeled themselves on the notion of tribunes of former societies that came out of the early antiquity.

So there's no question that there was a connection back to notions of democracy and self-rule that predated the Enlightenment. What the Enlightenment added was a sense of rationality and also a sense of an understanding of property that was different from the ancients.

Christianity, of course, was a pervasive influence, many of the framing generation were also part of the Revolutionary Generation, who had fled Europe in part because of violent religious persecution and sectarian division that led those who came to the United States to seek, among other things, a kind of religious truce in which no church would be established for the nation as a whole, and although people pursued Christian religion, that it wouldn't become a theocracy.

So Christianity is an influence but one deliberately kept at bay by the Constitution whose very first amendment says no establishment, Congress will make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Well, this is fascinating to me that I believe that the separation of church and state is a founding law on which the Constitution itself is based because that is where the authority of a secular document like the Constitution lies.

It's the document of the state and it will be separated from religion or church.

And yet isn't it strange or isn't it at least interesting and significant that the first people to articulate a doctor in separation of church and state were really the Puritans or certain Christian thinkers, I'm thinking, for example, the separatist Roger Williams who was completely fanatically committed to the idea that there shall be no interchange between church and state.

And of course he wanted to preserve the church from interference or profanation by the state, whereas I think you're suggesting that the framers wanted to preserve the state from interference by the church, but nevertheless there seems to be this Christian legacy which actually goes back to the scriptures, render unto Caesar's what is Caesar's and render unto God what is God.

That's absolutely right today Roger Williams might be very comfortable with the American Civil Liberties Union approach to separation of church and state, even though they come from opposite angles to the same place, the wall of separation between church and state which is a modern metaphor and not something that the framer said, but that notion for Roger Williams point of view was to protect in its pure form religious activity.

Williams would not have wanted vouchers from the public tax money to go to children attending religious schools. He would not have wanted federal subsidies for faith based initiatives such as soup kitchens or hospitals or abstinence programs run by religious practitioners.

He wanted those who practice a religion to do so in a sense behind the garden wall and an Elysian garden of freedom in which religious practitioners could form a community of faith that was neither coerced nor responsible to the larger political community.

One of his notions was that those communities should be able to flourish poorly that one could go retreat behind one's garden wall without having to belong to a massive church run from a central authority.

This is not the position that modern proponents of religious liberty have adopted. It's one that separatists have adopted to protect government from religion rather than religion from government, and yet that was part of the founding generations views.

One other thing on Christian legacy, and since I mentioned Roger Williams, let me quote what he said about human nature. He spoke of a rotten, I'm quoting, "Rotten nature from whence from within Lord Jesus tells us proceed all the rotten and hellish speeches and actions of history."

Very grim, purest, and sense of the malignancy and corruption of human nature.

Now, do the framers of the Constitution or the theorists of Federalists, for example, do they inherit in some way from this legacy a certain suspicion about the inherent goodness of human nature, which might have been an enlightenment faith in the French realm?

Well, the framers believed men to be fallible but not necessarily evil. So let's think back to some of the famous statements James Madison made in support of the Federal Constitution. He said if men were angels, the laws would not be necessary.

And so there's a concession that none of us lives by perfect virtue by which our communal coexistence would be peaceful at all times and dedicated toward the good.

So yes, there's an understanding that men are fallible, that people are fallible, and that people have what Madison called a tendency to form into factions.

So it said Madison faction is sewn in the nature of man, and Madison suggested that we fall into factions of two kinds. We fall into factions of passion by which he meant the kind of zealotry that animates us about, well, to think about issues today about such divisive issues as abortion or race relations, or what kind of relief should be given to the poor. People have factions of passion, but Madison also suggested that we fall into factions of what he called interest.

factions of interest whereby we identify as academics or farmers or industrialists or workers or landlords or tenants that will have different economic interests, different social interests.

So what Madison's insight was that these tendencies can't be checked purely by goodwill or self control, these tendencies which have potentially disastrous social consequences. They can lead us into rapaciousness and war and civil unrest and interpersonal force and fraud, that these can be best controlled through institutes and

institutional design. We can make sure that we try to design a government in which the factions of passion and interest will never rise up into tyrannies in which they can be controlled, and that's where the whole idea of separation of powers and checks and balances comes from.

So would that confirm an ocean when I said in my opening remarks that the Constitution doesn't trust us completely to act on our own?

Absolutely not. In fact, you can think of the Constitution in very simple terms as a kind of diet. It assumes that we will be prone to temptation, that we need to make a pre-commitment, that our pre-commitment is a decision in advance, not to do what we might be tempted to do.

At the moment, the Constitution sets up a dialogue between our better selves and our tempted selves. Our better selves, we the people who wrote the Constitution say we're telling you in advance that you'll be tempted to spy on your neighbors when you're afraid of foreign terrorists. You'll be tempted to let the police knock down the doors of people they suspect of crimes. You'll be tempted to suppress dissidents. You'll be tempted to persecute heretics.

And when those temptations arise, recall us we the people telling you that you made a commitment in advance not to do those things, not to eat that second piece of cake, not to respond to what gives you pleasure or saves you from pain, you've agreed to do the hard thing in the moment and resist temptation.

So a Constitution is a dialogue between we the people who have decided in advance to restrain we the people who might be tempted to do something at a given moment.

A form of pre-commitment is a familiar one in our personal lives. We try to make pre-commitments to be better people through New Year's resolutions, diets, a whole host of ways in which we try to make pre-commitments to others through contract in the commercial realm.

And the Constitution is a contract writ large by which we say in advance we will restrain ourselves.

Now the only problem is we the people who wrote it are no longer around. So it is we the people who are undergoing the temptation who are also we the people who interpret what the diet means.

And the Supreme Court is an institution that is supposed to help us to hue back to what we the people originally meant even as we evolve from a nation of forces and buggies to a nation of automobiles and jet planes and from a nation of quill pens to a nation of the internet.

Of course the difference between New Year's resolution or pre-commitment is that you can break it with impunity.

We we fair to say that the Constitution is constructed in such a way as to make it legally very difficult for these impassiones that these passions to get inflamed beyond their proper measure.

And therefore this whole architectonic of a government which is based on checks and balances and you have bicameral the you know the executive the Supreme Court that all this is there really.

To delimit the unrestrained exercise of power that's absolutely right Robert so the notion of punishment is is.

Far simpler than the Constitution itself the idea that if we deviate will be punished as a is a conventional understanding of criminal law for example but constitutional law assumes that punishment will be difficult to apply difficult to me that.

So what you've got to do is make sure that the the transgressions don't happen in advance you have to make them difficult to commit.

And checks and balances are what make transgressions of the Constitution difficult to commit it's as if the framers through a lot of sand into the machinery of government.

They deliberately made it very difficult to change the Constitution we can do that only by a super majority of Congress sending a amendment out to a super majority of states so we're stuck with the diet it's very hard to change the diet.

The second thing they did is they made it a requirement of any law that it be passed through a very difficult process at the federal level.

You have to have each house of the Congress agree upon a bill and has to be signed by the president so you've got you've got to have really three entities of government all in agreement.

And it's the court stand by to make sure that they've behaved properly and that they haven't violated any rights.

But the framers theory was not that the courts would always be coming in to correct our transgressions after they happened.

They were trying in advance to make sure that we couldn't commit them very easily because all of these different processes of government in order to line up would only line up and produce a law if the law was really good and desirable and further to their ends.

The other thing the framers did is imagine a two level government.

The government in which the states would remain our principal levels of policy making in which we decided how to run our criminal laws, our educational systems, our family laws, the basic arrangements of contract and tort and other protections against economic or personal injury.

The federal government the framers imagined would only do certain things that we really needed to do at the national level like provide for a common defense or make sure that there could be transportation freely on the nation's

navigable waterways so that cotton could be shipped north and industrial goods could be shipped south and all goods could be shipped to foreign nations.

So the notion the framers had is that if you have a double what Madison called a double level of security, we have separation of powers at the national level between the Congress, the president and the courts,

and we have separation of powers vertically between the federal government and the states, and these checking functions like kind of tectonic plates that grind against each other will create a

a friction that will make it hard for government to tyrannize us. And then rights come in after the fact to say excuse me you just

tyrannize us only as a last resort the idea is that the structure and the limitations on government's powers will keep it from doing anything too harmful in the first place.

Well I like that because it might give us an explanation or why there was this wisdom and maturity is that precisely in an attempt to forestall the problems that it's a very forward looking.

It's an amazingly forward looking document and it's still looking up for us.

It still is and it was written in very open ended language. The framers didn't sit down and suggest that Congress would pass a bills affecting interstate highways. They just talked about a great power of commerce and regulation of commerce among the states. They left it very open ended similarly on the side of rights. They didn't say

Congress will make no law of bridging the freedom to have a radio program. They couldn't imagine it. They just said the freedom of speech and over time different technologies could inhabit the meaning of the term freedom of speech from

written documents to mass communication over broadcast media to cable television and satellite and internet communication.

So when you write things open endedly commerce or speech you are writing a document that is future oriented forward looking as you say and it needs to be filled in over time by the changing meaning of those open ended terms.

One last thing Kathleen on the question of the fallibility of human nature and what you were saying to start with about the enlightenment and the thinking that came out of the enlightenment, multi-scure and so forth.

The multi-scure had a concept of a republic that was based primarily on the virtue of its leading citizens.

And I think that during the in the convention they were trying to debate for example what the role of the Senate would be and would it be people of excellence and character and I think what they ended up

and conceiving it as is just another counter power to the House of Representatives and it was almost a refusal to entrust any branch of government to a intuitive virtuosity of the citizens.

Well there are really two traditions in our founding and one is a republican tradition that looks to the virtue of leading citizens as a check on the passions of the people.

And that is embodied in not only the Senate which of course is a very anti-majoritarian body there are two senators from a largely populated state like California but there are also two senators from much less populated states like Idaho or Rhode Island.

So the Senate is not a democratic body in a sense of one person, one vote, it's a body that creates leadership for the leading citizens of every state and keeps the states in as a kind of important body in the formation of the republic.

So the Senate and also the electoral college how we elect our president is not through direct election but through the election of what were thought to be leading citizens, the electors who would then select the presidential candidate.

Why was the electoral college so important for them and nowadays we're debating about it's superfluous we can get rid of it it doesn't make any sense.

Do we even still understand today what the thinking was about the electoral college?

Well the thinking was as you described it based on your reference to Montesquieu the thinking was that leading citizens would have wisdom and we would filter our popular choices through the wisdom of leading citizens the electors were thought to be a body who would deliberate just as the Senate would deliberate and deliberation was thought to be a rational enlightened sort of process in which passions would be purged and the common good would be emphasized.

So it came from a tradition of virtuous expectations of leading citizens, a form of representative government as opposed to direct democracy, a form of government in which the wise would help God, popular will to correct outcomes rather than popular will acting on trampled upon government directly.

So that's where it came from what happened between then and now is the invention of political parties. So today we don't think of electors as selecting our candidates we think of a two party system of two parties have changed their identities over time but we've had it for a long time, an essentially two party system.

And the rise of the parties as quasi private quasi public entities that help filter our candidates has displaced the electors, we've also moved toward more popular democracy.

So our 17th Amendment for example abolished the form of electing senators from the state legislatures which was a sort of double representative from mental form to allowing popular election of the senators.

So we've had parties, we've had a move toward more popular democracy but to go back to Montesquieu, there was a sense in the founders that we didn't want to be a pure democracy in which the people vote untrambled as Californians vote in initiative and referendums for policies.

We wanted to filter policy through a deliberative body in the Senate was, as you say, to be a check on the House which was closer to the people the House was often called the People's House, the People's Branch, and the Senate certainly is not a creature of the people, it was a creature of the states, and the states, and it's wise leader.

So Montesquieu did figure in the virtuous expectations of electors and senators, but he figured even more precisely in the framers' use of separation of powers.

It was an idea that came from Montesquieu that you should have not the English parliamentary system in which the people who make the law also enforce the law, Parliament and the Prime Minister both legislate and exit.

We separated the legislative and executive powers so that Congress makes the law and the president may perform the law only to the extent that Congress authorizes him to very, very different from a parliamentary system, huge innovation.

There were two great innovations in the American Republic. It separated the executive from the legislative power, the power to make the law and to execute it.

And it also separated the power of the federal government from that of the states, and this is what Madison called "extending the sphere."

So Madison thought by having a national government in which you take in all the factions of passions and interests at the federal level they will help to cancel out each other's extremism.

And it's an opportunity for national logrolling and bargaining in which agriculture will bargain with manufacturing and mining and slaveholders will bargain with mercantilists and all of it will even out over time rather than creating a tyranny and any one portion of the country.

Name of this show Kathleen is entitled opinions, so now we're getting into the second part of our hour. I'm going to ask you if you, to maybe pronounce a few of your eminently entitled opinions.

To begin with, just on the electoral college, would you be in favor of abolishing the electoral college?

What would favor a move of presidential elections to send in closer to popular vote? There are many different ways we could try to alter the electoral college. I'm for incremental change where we can do it rather than radical change.

So I don't know that I have a perfect solution to presidential elections, but it is an oddity of our system that a majority of the people could fail to elect a national leader.

I do think the states play a very important role and we shouldn't understate it. So I certainly don't want to undermine the role of the states too far.

We should remember that although state governments are sometimes thought of as backwaters of prejudice and bigotry and tyranny, that's the way people thought of states in the Civil Rights Movement, where the federal government was the enlightened and wise source of equality principles and the state governments were segregationists.

But it might be today that state governments are valuable to progressives because it might be at the state level that you get universal health care and Massachusetts physician assisted suicide in Oregon, medicinal use of marijuana in California or gay marriage in Massachusetts.

And the notion that states are important places for us to self-govern and sometimes self-govern differently from what the rest of the nation is up to is a really important part of our Constitution.

To the extent the electoral college was trying to preserve an important role for the states in our federal system, that seems to me a valid general principle.

The question is does it go too far to stymie the popular will of people electing a president? Should we go to one national plebiscite for the president?

And that's a... Yeah, but you mentioned earlier you alluded to the ballot initiatives in California for example.

I'm looking here at what Madison said, "People if unrestrained seldom judge or determined right that here's the...

At the people when unrestrained have been as unjust tyrannical brutal barbarous and cruel as any king or senate possessed of uncontrollable power."

And we'll talk about the other side of the uncontrollable power which is the executive in a minute.

But would going to direct, you know, popular vote maybe unleash this monster that so haunted the, you know, the psyches of people like Madison and even John Adams in this defense of the Constitution.

Absolutely. I think that direct democracy, the framers correctly perceived as a potential source of tyranny.

The framers first and then Tocqueville in 1824 when he came and observed early American life in the first generation of the Constitution's operation, observed that you can have something called tyranny of the majority.

That tyranny doesn't just emanate from monarchies. tyranny can emanate from a majority that oppresses an entrenched minority among it.

And we think of minorities as typically in connection with racial minorities in the notion of racial hierarchy, but a minority can also be a religious minority or a minority of belief, dissident politically.

A minority can consist of people with a different non-religious lifestyle. And the notion of tyranny of the people is a powerful motivator for the framers to have provided us not with a democracy but with a republic.

Many ways our Constitution is a profoundly anti-democratic document. It preserves all kinds of representative checks on popular well as we've discussed and it also provides a judicial review system by which unelected judges can try to keep the whole system from oppressing minorities if

the legislature is due to get out of control. So I share very much Madison's fear that the popular

Constitutionals in untrusting ourselves to our own majoritarian passions is not safer than

interesting ourselves to checks on those passions. The initiative and referendum in California was invented by people who were trying to stop the influence of what we would call today special interests.

The fear was that in the back room of legislatures the lobbyists were capturing votes of representatives by offering them blandishments of money and liquor and free turkeys and paid vacations.

And the idea of the popular referendum and initiative was to return power to those who would be uncorrupted by such influences. You can't bribe the people. There's too many of them.

Now that's backfired because of course the special interests often capture the advertising money that goes into driving the referendum campaigns and keeping people from voting what would be in their best interests anyway.

So there's much any time we try to tinker with our system we find that we obey the law of unintended consequences. The initiative and referendum were meant to free the people to vote without special interests and yet they are often run by special interests through expensive advertising.

That line from John Adams about the people can be as cruel and as any king or senate possessed of uncontrollable power.

So on one side the fear was the tyranny of the majority but on the other there's also the fear of monopolization of power.

In the king monarchy is also something against which the republic is conceived and this idea that power has a natural drift towards its amassing and monopolization.

So they were very careful to make sure that our president could not appropriate powers that would be monarchical in nature or assume a kind of excess of

power vis-a-vis the other branches of government.

Speaking about our own times now do you find that there is a thinking in for example the Supreme Court the way it's now newly been constituted that is much more favorable towards the expansion of the presidential powers.

Yes well this is I think the crucial issue of our time that we have two crucial issues of our time one is will the people be able to control their governments and the other is will the government be able to control the executive branch the issue of democracy and the issue of dictatorship.

To go back to the framers for a moment you're quite right that they feared monarchy more than they feared majority and tyranny that the experience of the framing generation was one of the abuses chronicled so eloquently by Thomas Jefferson's pen and the Declaration of Independence.

The catalog of indignities and usurpations committed by the monarch and the common theme among them was that they were acts of prerogative they were acts of will by a single man who was unbounded by any accountability to his subjects with the colonists were so indignant about was that they had taxation without representation that they had soldiers visited upon them without their consent that they had arbitrary and capricious rulemaking with the

they had a failure to be listened to. So the theme of the Declaration was very much that a monarch is a being that acts through prerogative and will rather than through accountability and responsibility to his people and that that's the source of tyranny.

So there's no question that the Constitution written by the same generation who had experienced the phenomenal sacrifice of lives and energy that produced the revolution and the separation from the crown still vivid in their memories were those usurpations chronicled in the Declaration of Independence and there was a sense that the Constitution was a document that would make sure that a monarch never rose again.

So we have the separation of legislative and executive power. The monarch can make the law and he can enforce it. The monarch can be the red queen as arbitrary as he or she likes.

But the separation of legislative and executive power was not all the Constitution did. The framers also said that the United States shall guarantee to every state a Republican form of government.

Now we've never held that that's a provision that has any real teeth. We've never invoked it to strike down something that a state did because the court has stayed shy of it, but it announces a principle that no state shall have a monarchy either.

That we should be a republic as a nation and that each state should also be a republic unto itself. So we renounced monarchy and with it created a notion of an executive who would be the executor of laws.

He would have power vested in him to take care that the laws be duly executed. But the laws were to be prior to the man. The man was not to embody the law. No man shall be above the law. The king is above the law, but in the United States. No executive branch official was ever to be above the law.

This is a notion that's come back to haunt Richard Nixon and Bill Clinton and the Paul Jones matter. We just do not have officials who are above the law or above the reach of our constitutional legislation.

Well, you have the executive you have legislative, but the Supreme Court was crucial to preserving the stability of the Constitution.

Absolutely.

And there if there is a power struggle between the two branches of government is really the task of the Supreme Court to defend neither one side or the other, but to defend the Constitution as such.

How much danger is there? I'm thinking of the quote I started with Emerson that the laws are good for the people or lambs, but what if the wolves are not making any insinuation?

But clearly they have been times in the past where wolves can be the judges and provide a wolfish interpretation of the law. Is that the most dangerous scenario when we contemplate the possibility that could be inconceivable to many of our fellow citizens that our government could actually drift towards tyranny?

That the Supreme Court is the ultimate bulwark against that happening, but that if we have now people in the Supreme Court were much more favorable towards the idea of an expanded power of the presidency that we might have something to worry about.

I agree absolutely that the Supreme Court is the ultimate check on the creation of a tyrannical executive branch because there are systematic incentives for Congress to be docile in the face of executive prerogative.

The Congress, when the president is out responding to events like the terrible events of 9/11, the Congress is liable to pass something in haste like the USA Patriot Act, which reduces the amount of privacy people have against electronic eavesdropping and various kinds of searches of records and cell phone calls, the Congress is much more likely since it's so accountable to the people to respond to the same fears that motivate the president to want to defend the nation.

So the incentive system for politicians, whether they are elected as president or elected as members of Congress, is to deal with short-term fears in cases of emergency.

It's always going to be the courts who take the longer view, who have a structural insulation from politics, our judges in the federal system are given office for good behavior, which has always been interpreted as a kind of life tenure.

You can't remove them except by impeachment very difficult to do, and the court is protected in its salary. It's salary can't be diminished, so it can't be punished financially for if it does something that the president doesn't like.

So the courts are protected from politics. They're not elected. They last a long time, and it is ultimately the courts who will sometimes slap the hand of the president when he goes too far.

Now, let's be realistic. A court, as Alexander Hamilton, said in the Federalist number 78 in which he defended the notion of judicial review of legislation to say whether it's deviated from the Constitution.

He also said the judiciary is the weakest branch, lacking the power of either sword or purse. In other words, the court does not command armed forces, and the court does not expend money from national budgets.

And so the court always depends for its power on its perceived legitimacy. So will the court actually stand up to present Lincoln when he suspends the rid of habeas corpus that legal document that enables someone who's been detained in prison to ask, why are you holding me? Please give me a reason or set me free.

When Lincoln suspended the rid of habeas corpus, the--and imposed what was essentially martial law in places like Indiana and Ohio, not part of the war, he did so with a sense that

the Constitution is not a suicide pact and he had to act and he had to act without the authority from Congress. And the Supreme Court said later on that he shouldn't have done that, that there should have been civilians, civilians should have been tried in civilian courts in those border states and not subject to martial law, but they said that in 1866 after the Civil War was ended, the armistice was signed. The court doesn't always stand up to a wartime president when President Roosevelt interned in camps and dispossessed of their property.

130,000 people on the West coast of Japanese descent including 70,000 of them American citizens,

when that was done in World War II after the bombing of Pearl Harbor and the

legitimate fears that there might be further

attacks by the Japanese emperor on the West coast of the United States.

But when that overreaction occurred that we later regarded as a national shame and as to which Congress later

provided reparations to living heirs of the internment as

to that the

President had no qualms. His chief lawyer was later quoted as saying I do not think the

constitutional difficulty

greatly troubled him of rounding up people based on their race and ethnicity and

then he said I do not think the

constitutional difficulty has greatly troubled any wartime president and in that case again the court rolled over the court in a

infamous case called Kormatsu said

Well, this is race discrimination to be sure, but we think it's compellingly justified to protect the nation from treason or

espionage so I don't want to overstate the willingness of the courts to stand up to

despotic action by the executive there are times when the court given its institutional limitations

will exceed two grabs of executive power, but I think the better moments in our history are those in which the court does stand up to the President

I can give you two examples if we go back a little over half a century now to

1952 in the Korean War there was a threat that a labor strike would shut down the steel mills and would keep

munitions and arms and steel and tanks guns from being shipped to our soldiers already committed to hostilities in Korea

President Truman elected with a great labor vote

Wasn't about to mess with the unions if he could help it so what he did was he ordered the steel mills taken over by the US government and

In fact ran up the US flag over private property

And this is a taking of private property and the court said it was illegal

The President has no authority to take the steel mills he is the commander in chief of the military said the court

But that does not make him commander in chief of the economy does not make him commander in chief of the nation and so the court stood up to

Truman and said that that was an unlawful act and it had to be reversed and in fact there was no steel

There was a strike there was no steel shortage and the flow of munitions was unimpeded

But again Truman was on repentant he thought he did the right thing he was angry at the court

He it's reported that he went to dinner at a Supreme Court justices house shortly thereafter and

Was quite indignant but they drank enough over dinner that at the end of the evening

He said to the justice who'd written the opinion against him sir your law is no good, but your bourbon is

Is it more the exception that the Supreme Court stands up to a president who?

puts the law and suspension as it were yes, it is more the exception

But I would give you a more recent example that shows that I think the current court until now has been willing to repeat the steel

seizure courts willingness to stand up to the president when

President Bush on after 9/11 allowed the military authorities to detain an American citizen in a military

Break without telling him why and without access to counsel or the public for a period of years

The Supreme Court said that's a violation of due process in an opinion by justice O'Connor who just retired this year and is no longer sitting on the court

Nations first woman Supreme Court justice

Sure an opinion saying there has to add a minimum be some due process a detained citizen must know the charges against him

Must have a fair decision maker decide whether there's merit to those charges and must have some chance

She didn't say that he had to have a lawyer, but must have some chance to contest the charges against him and

the

Point of this opinion was that justice O'Connor was saying the president doesn't have carte blanche

It doesn't have a free hand doesn't have the power to arbitrarily make up

detentions and

In that opinion justice O'Connor echoing the steel seizure court said just because the president is the commander in chief of the

Military does not make him commander in chief of the country now that opinion stood up to the president a little bit

The question is whether the new court which has two new justices both of whom were former workers in the executive branch of government

will have the courage and the

Constitutional fidelity to stand up to other

grabs of executive power

You don't have to answer this casting, but do you think we're at a moment where the Supreme Court should start standing up to our current president?

Absolutely, I have no difficulty in answering that I think that the

The court has before it now an important case involving Guantanamo

detainees in which it needs to set some limits to the executive branch's power to make up not only new

procedures for detention but also new laws such as conspiracy to be applied to prisoners I

Think that the national security agency wire tapping that's been engaged in we learned after the fact for some time since

9/11 even of phone calls to two and from American citizens

Is something that is not authorized by Congress now? I don't mean that the court should take over making the law

What I'm suggesting is that the court can say excuse me mr. President you can't act until Congress has authorized you to

Congress should make a plain statement

Authorizing you to do these things if Congress wants to pass a detention act fine if Congress wants to authorize wire tapping for a period of time without a warrant

Fine, but unless the Congress that makes the law has given you authority you do not have a blank check and

That's a principle as old as the Republic that's goes back to the very core of what we discussed before of the separation of legislative and executive power

Now what do you think the likelihood is that this court is going to?

Remind the president

Well, I'm hopeful. Yeah, I'm hopeful. I think that when justices go on the court

They no longer are bound by the kinds of political

Fidelity that they had when they worked in the government before there are many many justices on the court who did differently as justices

Then they didn't the executive branch just as Jackson

Who was the one of the writers of one of the great opinions back in the Truman Steel seizure case?

Justice Jackson had been FDR's Attorney General and when he was Attorney General

He told FDR to do a lot of things as president that Justice Jackson later said as justice were illegal

So I'm hopeful that even though Justice Alito and new Chief Justice Roberts worked in the executive branch and worked on broad notions of executive power when they were Justice Department

Attorneys I would hope very much that as justices

They would see that the government itself needs to run by

correct procedures and that it's being faithful to the original Constitution to hold the government to it a

Lot of us are hoping along with you Kathleen. We've come to the end of our hour

We've been speaking with Kathleen Sullivan from the law school here at Stanford. It's been a pleasure

I hope you'll agree to come on to

Continue this conversation

Take it into other realms as well. Thank you so much for having me. Oh, you're welcome

And then we hope to see you soon and we will be with you next week. Bye-bye

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