Now this is the FCB Podcast Network. They're great US Solved for Jemmy, and they thought so when we want America. Welcome back to the Growing Patriot podcast American History for Kids. I'm your host, Amelia Hamilton. Last week we wrapped up the Bill of Rights and that's where we're going to leave the Constitution. There have been many more amendments since then, but they really come after the founding period. And at this podcast we are all about the founding but I know that the whole Constitution and the Bill of Rights have taken us months to get through and there was so much to learn. So today we're just going to do a little wrap up the things that we really need to remember about the Constitution and the Bill of Rights. I have a constitutional expert joining us, so let's dig right in. Hi. My name is Clark Neely, and I am senior vice president for Legal Studies at the Cato Institute, which is a think tank in Washington, DC. Who is Cato? Why why is there something named for him? Well, the Cato in this case is not just one person. It's a group of people who produced a body of work called Cato's Letters, which was correspondence that can place during founding area before the American Revolution, and essentially articulated a political philosophy that our country would come to adopt. And the it boils down to the idea that the most important entity in any given society is the individual. So we as individual human beings are the most important thing, not in the government. And that was really a revolutionary idea because in most societies up until that point, there was some you know king or you know warlord or or chief who took a position that I am the most important. And then I created a society and you serve me, and we turned that on its head. And so there are a number of writings during the bounding are including Cato's letters, articulated this philosophy, and that's the one that inspires both our Declaration of Independence and the US Constitution. Cool, you guys are keeping that spirit alive today. I love it all right. So we have just wrapped up the Bill of Rights. We talked about the tenth Amendment last week, so we are done with with those, um you know, first ten. Of course, there are many more amendments, but for the Bill of Rights. So I just wanted to kind of talk to you and wrap it all up. What are some of the big themes that we should take from, you know, the Constitution and the Bill of Rights, you know, going forward in our lives. Well, I think the most important thing to keep in mind is that the Constitution is a kind of a ruler, and it sets forth the ways that government can legitimately operate. Um. You know, in some ways, the simplest way to run a government is just to have one person in charge and then they everything they say becomes the law, and every decision they made ends up being implemented, whether it's just or unjust, fair or unfair. Another way to run a government is, what's hold a pure democracy, so that you just people get together, they vote on any given policy, and then whatever the majority says that becomes to policy. And it turns out that there are real problems with each of those approaches, and it essentially boils down to um. There's a tendency both from the part of tyrants or you know, autocrats, people who run the entire country, to act mostly in their own interests and not in the interests of individuals, and not to respect things like individual rights, and the fact that we all have different preferences, different castes and different ambitions and goals in life. And the problem with pure democracy is similar in the sense that you can have the tyranny of majorities. You can have a bunch of people who get together and they prefer one policy, and then they just ram that down the throat of everybody else, even people who disagree. And so what our society tried to do and what our constitution sets forward is a government that operates on the basis of democracy and operates on the basis of majorities deciding what the policies will be, but within certain parameters, within constraints that the government cannot exceed in. One example of that would be freedom of speech. You have a right in America to go out and criticize the government if you want to do that. In many other countries, perhaps most countries throughout history, you did not have that right. And if you go out and criticize the government in some countries today, so for example Turkey, where people have been famously prosecuted and put in prison for simply criticizing the government'll guess what you're now permitted to do that in this country you have a constitutional right to do it, even if the majority of people disagree with you. And even if the majority of people think that it should be a criminal offense for which they can put in a jail, guess what, they can't do it. And the reason they can't do it is because the Constitution says that we all have a right of free speech and that that's one of those rules, one of those limits that exist in the constitutions, but the government has to respect even if the government doesn't want to respect it. Yeah, and you touched on another I think big theme is the individual, you know, being sovereign, being the king, you know, and that was something that certainly that our founders had not experienced as a colony, you know, and they knew they wanted to do something different. So why is the individual so important in America? And how is that different? Yeah, I think this is a really important point to understore the fact that both the Declaration of Independence and the Constitution really stand for the proposition that individuals have individual or worth, the individual autonomy that means we get to make decisions about what we want to get out of life and how to go about it. That doesn't mean that society has to be inherently individualistic or atomistic, where everybody's thinking about themselves all the time, and all you do is try to get ahead, and who cares about anybody else? That is not the idea whatsoever. On a countrary, a French political theorists name Alexis to total hid to America about forty years after the founding of this country, and here remark, how remark, how incredible it is an Americans spend a lot of time working together. That we do things in groups. You do things in communities. We're members of churches and rotary clubs and other kinds of organizations. But the point is this, It's that the government doesn't get to dictate to people how to live their lives. It doesn't get to dictate to you what you have to do for a living, whether you have to be a firm or a factory worker, or a lawyer or a doctor, you have to get married to this person and not this other person, etc. Etc. Those are choices that we get to make for ourselves as we go through life. What doesn't mean, again, that we have to live some lonely, individualistic life where we never work with other people, we never have families or communities. It simply means that we get to choose who's going to be in our family. We get to choose who is going to be in our community, who we want to work with, who we don't want to work with, we want to associate with, who we don't. I only think that's the beauty of the American project, is a respect for the ability and the right of individuals to make those decisions about their own life. And again, that doesn't mean you go through life is some lonely island where you never associate with other people. On the contrary, America has some of the best communities of any country in history. And one of the reasons for that is that it's people who conside when to get together and who to associate with. The government doesn't get to go around dictating those kinds of things from individuals. And I think there's something very beautiful and money absolutely and that idea of communities coming together you're rather than having things imposed on them, I think really goes along with what you said about, you know, not being a direct democracy, about people working together, and that was against something that they saw, you know, being ruled by a king who was an ocean away. It didn't work. You need to talk to the people who are there living those experiences every day, And now our country is even bigger, so much more diverse. And that's why I think things like the electoral college works so well. You know, we did in an episode about how that's you know, actually a really fair way to pick somebody to represent this big, crazy country with all these people. So I like how it all ties together. Yeah, you know. One of the things that keep in mind is to have a sense of humility about the fact that there are always tradeoffs. So, for example, we had a pewer democracy, than people would have a bigger voice in how the country is run. But the tradeoff would be that a lot of people would then have to live under policies that they don't agree with they just happen to be an a majority. So there really are tradeoffs. And as you want to mention, some of the designs of our constitution, like the electoral college, like separation of powers, like the process or enacting legislation, are specifically designed actually, believe it or not too forward the interests of fair political majorities. In other words, to say to people, you know what, a fifty one percent of the people support this policy, in forty nine percent of people oppose this policy, then we're going to make it really difficult for you fifty one percent to rmded down the throats of everybody else. And I think one of the most fascinating and profound insights about our Constitution and it is not truly a majority parient document. It is a super majority carying document, by which I mean the Constitution is designed in such a way so that really major policy changes. Again, the Constitution is not a majoritarian document. Who mind you, it is a super liboritarian document. So when it's being applied correctly in order to implement major policy changing, it's not enough to have fifty one percent of people. A constitution is designed in such a way to make it very difficult to implement major policies and message to have really large percentage of people supporting them. I think that's one of the ways in which the Supreme Court is most failed to faithfully implement constitutional design is allowing many many things to be done on the basis of fair majority support. In fact, those then should only be done if they have supermajority support. Absolutely. Another big theme that we've been talking about throughout this whole founding period is compromise you know, through the framing of the Constitution and writing the Bill of Rights, really nobody, no one person got just what they wanted, but you had to come up with something that everybody could live with, which is like you were talking about with It's not just a majority, you know, you have to have something that works for everyone. Yep. Now it's exactly why I compromise is so important. I mean, compromise is important whether you're just talking about a relationship with another human being like a friend or a spouse. It's important when you're talking about inside of a classroom, so that you know, people don't understand. You can't just do whatever you want at any given timere are other people who have other interests, and so we have to talk fromise. And probably the biggest compromise that's reflected in the Constitution is whether or not there should even be a national government or a federal government, because up until the ratification of the US Constitution in seventeen eighty eight, there was no usaday. There was no federal government, There was no national government acts that would go around ordering people to do things. It was just the states. In the states would sometimes agree with each other, sometimes not like you would essentially the governing body for for citizens would be not the federal government, but there wasn't one. It would be the states. So on the only hand you had people who thought there should not be a federal government because there's no way to create one without essentially creating that kind of a Frankenstein's monster. There's incredibly powerful body that would almost certainly start tyrannizing people, start violating people's rights and preventing them from doing the things that they want to do and living the life the way they want to live their life. The other end of the spectrum, there were people who felt like, no, we absolutely do need a federal government. It needs to be really powerful. It should have all the powers. And the compromise that was worked out was that, yes, we will have a federal government, but no, it will not have every power that you can imagine. It will only have a few powers, like the ability to create an army, the ability to have a national system of weights and measures, and intellectual property. But really just a few things. That was the compromise that was worked out, and that is reflected in the text of the Constitution. Unfortunately, about one hundred and fifty years later, the Supreme Court decided it wasn't important to respect that compromise anymore and just basically said, you know, if the other branches want to continue to respect that compromise, that's fine. If they don't want to respect that compromise, that's fine too. It's could probably guess and I strongly disagree with that decision on the part of Supreme Court. I think it was one of the biggest applications of responsibility that we've ever seen from any branch of government. Unfortunately, the Supreme Court in the nineteen barries just decided that it would no longer really to make any serious efforts to enforce this compromise. There was I think a really smart one, and I think we've paid a huge price for the fact that the branches of government, the executive, of the legislative and the judiciary no longer really respect that compromise. That we will have a federal government, but it won't have very many powers. But another great thing about the way that we are America is set up is that we can fix it. It can take a lot of time and a lot of persuasion, which is, you know, something that we saw in you know, things like the federalist papers. You know, they were writing back and forth trying to persuade people. You know, so we can we can fix things. But it takes time. Yeah, it does. And I think one of the biggest problems in our country is the judiciary. I've been a constitutional lawyer in my whole life. I revere the Constitution, I love it. Unfortunately, I think that the judiciary has been insufficiently serious about enforcing constitutional limits on government power. And my theory, and it is just a theory, but my theory is that one of the reasons for that is that the federal judiciary, the body of judges who are primarily responsible for enforcing their constitutions, actually are very similar to one another in a way that almost no one has noticed. And it's this. It's not that they all went to the same school, it's not all they all come from the the same socioeconomic genographic Instead, the thing that most unite federal judges is that a wildly disproportionate number of them used to represent the government in court before they become judges. There a few lawyers, there's lots of lawyers in this country. Very few of them ever represented the government in court, but guess what among judges, and wildly disproportionate number of them are drawn from that tiny percentage of lawyers who used to represent the government of court. So I think what happened is that so many federal judges went from making arguments in favor of government power to deciding cases involving government power. And I think it's one of the reasons why the federal judiciary has been, in my view, insufficiently committed to enforcing constitutional limits on government power, whether it's protecting our rights, which I think the courts don't do as vigorously as they should, or enforcing what we call structural limits on government power, and for example, enforcing that part of the Constitution, the tenth Amendment. It says that not very many powers are given to the federal government. Most of those powers are given to the states and should be exercised by the states. As we discussed, I think that the US Supreme Court has been insufficiently committed to enforcing that constitutional structure, and unfortunately, much to our cause, it results in a net loss of freedom. And I would say that we are significantly less free today in this country than the Constitution means for us to do. Yeah, do you think our founders would be surprised by that, Well, I think they'd be astonished. I think they would be absolute. I think they'd be besides themselves when they if they were able to come back and see the sheer size of the federal government and see all of the different things that it involves itself, and keep in mind, the Constitution only gives the federal government a very small number of powers that are listed right there in the first kind of chapter of the Constitution, Article one, and now basically the federal government. It's almost you can't even think of anything so trivial that the federal government doesn't involve itself in that thing. Now, again, reasonable people can disagree about whether that's a good idea or a bad idea, that the Constitution was written in such a way to make fear that the federal government has no business whatsoever involving itself and go to the small details of our lives, and yet it goes so anyway. So yeah, I think the framers, the founders of this country who wrote or framed to the Constitution, I think they would be absolutely a fault what the country looks like now. A lot of things I think they would be enthusiastic about it. I think there are some things that they would I think, for example, most of them would be very happy to don Nan should get really slavery, which is the most evil institution, arguing in the history of a fine and certainly as institution in the history of the United States. There are many people in the founding era who who rejected slavery as an institution. They probably wouldn't just prise to know that we had to fight a bloody civil war in order to do it, So I think that's something to make them very happy. But I think they would be absolutely a fold of the science of the federal government. Yeah, and we talked a little bit last week when we were talking about the tenth Amendment about how the way that things have grown, you know, things that are certainly not on the list, and one that really touches kids is schools. You know, certainly, nowhere in the Constitution does it say that the federal government in Washington, DC is going to decide what happens every day when a kid goes to school. Yeah. Now, that's right. And again, it's so important to keep us in mind. It is a matter of humility. It's important for us to realize that the Constitution doesn't necessarily look exactly the way you would like it too. I'll give you an example. I'm a libertarian. That means I believe a limited government and personal freedom. I would prefer that the federal government did not have the power to collect an income tax. This is the tax that the government takes some of the money to earn and spend it on things. And one of the reasons for that is the invasion of privacy. It's not just the federal government to take the money, it's all of the questions that you have to answer, all the things the federal government demands to know whether you've had some medical problems that you're whether or not you've done certain things as a family that might tell them something about how things are going. It's just an unbelievable amount of information you have to share with the government so they can decide how much you owe in taxes. I think that's incredibly objectionable. But guess what. There is a part of the Constitution, the sixteenth Amendment that was an actor in the early nineteen hundreds. There was no question it gives the federal government this power. I strongly disagree with that I think it was a terrible idea. I think it was a disaster that in humility, I do have to acknowledge that it's in their same thing with a federal role in education. Reasonable people can argue about whether it would be a good idea or the bad idea for the federal government to be involved in perfect education. But one thing that is absolutely clear is there nothing in the text of the Constitution that remotely gives the federal governments the power to involve itself in public education. And it doesn't anyway, And that's another example of what I described earlier about the federal courts being insufficiently protected constitutional limits on government power. Again, the reasonable people can disagree about whether it's a good idea or a bad idea as a policy matter, the federal government to be involved in public education, but there is not the slightest doubt that there isn't a single word in the text of the Constitution that remotely gives the federal government the authority to involve itself in that area. And the only only reason it's allowed to do that, if it just Congress pretends, is if there's a role for the federal government, the executive branch that's led by the president pretends as if there's a legitimate federal role, and the judiciary pretends as if there's a religion in the federal role in pubnic education, but there's not. And the founders of this country may a deliberate decision to withhold that power from the federal government. I think that was a wise decision. Other people might disagree, but there's no real doubt about what the decision was, and the decision was the federal government doesn't cut its power, and so the federal government exercises the power anyway, I would say yes. And the ninth Amendment and tenth Amendment are kind of two sides of the same point. Yeah, the ninth Amendment says, just with personal freedoms, even if it's not on the list, you shouldn't assume that it's not a right that should be protected. And the tenth Amendment says for the government, if it's not on the list, it is not their business. Yeah, you think our founders would be surprised how many things we've kind of shifted from the ninth of tenth how many personal freedoms we've kind of given to the government. I think that they would be mostly shocked about how much power the federal government exercises. We talked about that a moment ago. I think they would be absolutely just made that they had expressed in such clear terms a commitment to having a very small federal government leaving almost everything else to the states. We've really flipped that around. So I think that's the thing they would be most surprised by. In terms of the protection of individual rights, I think we are doing a better job there, and I think in many areas they would see how things are now. For example, we talked earlier about the ability to criticize the government bience, your freedom to speak. I think that they would be I think they'd be very reassured by how protective the courts have been of that right and how willing people are to exercise that right. I think, again I mentioned earlier, the elimination of slavery would be something I think that most of them would be very enthusiastic about, and the seriousness of which the course enforced what's called the equal Protection Clause of the fourteenth Amendment, which prohibits the government to making kind of arbitrary distinctions between people just on the basis of things like race or gender, etc. So these are a few things I think that most of the foundaries will be quite enthusiastic about. But on balance, I think that they would be very disturbed about the amount of power or the government exercises. I'll just give you a quick illustration. I don't know if those of you probably had babysitters before, but if your parents are a babysitter, generally speaking, there's an understanding that babysitter really only has a couple of jobs to keep you, say, maybe to feed you, make sure you've got a book to read, or a movie to watch, something like that. But imagining that your parents hired a babysitter and they had that understanding, and suddenly your babysitter as you understanding of no, no, no, I I think I have lots of other jobs I have. You know, it's my job to take you on a trip around the world and take you all the sites you know, and to expose you to every kind of food in the world you know, and teach them a bunch of words that you don't know, maybe including some bad words. Um. I think your parents would be really dismayed to discover that they had a babysitter who who had such a misconception of their of their job. I think that's a good comparison to the federal government. Federal government is really only supposed to have a free job, you know, make sure the country is protected, make sure there's you know, a system of uniform weights and measures and roads, and just leave it at that. But man, federal government just could not leave it at that. Yeah, And that's that's a great example. I love that parent babysitter example. And it's almost like, you know, the parents and that have just said, yeah, okay, babysitter, do what you want, because you know, the people in a lot of ways have not have not fought back. They've just let the government take more power. Yeah. Unfortunately, I think that's right. And again, you know, I don't want to be a drum here, but part of the problem is that we do have three branches of government that we're designed to be, you know, kind of intention with each other and to push back against each other. And I do think that the branch of government that has the most clear responsibility for limiting the other two is the judiciary. And I think it was a huge and tragical state to populate the federal judiciary with so many government lawyers, I think I think so many federal judges have a kind of an unconscious allegiance to the government. They spent so much of their career making arguments on behalf of government and rationalizing the exercise of government power that when they then become judges, I think they carry a lot of that baggage with them, and I think they are too inclined to say, well, you know, I used to make arguments like this on behalf of the government. That sounds reasonable to me. So I think we'd be much much better off if a much, much smaller percentage of judges were former government lawyers and a higher percentage of judges were people who used to work against the government and used to making arguments opposite direction and saying, you know what, the government needs to be limited and the government doesn't have the power to do this thing. So I don't know for sure that that's where the problem lies, but I suspect that it's a big parget. Yeah, all right, So aside from the judiciary, for people like you and me who love the Constitution, and hopefully the kids listening, what can we be doing to get back to that founding ideal. Yeah, well, I think that the best thing that any of us can do is to really try to approach this question of what should the government look like and how did they write the Constitution with kind of again a sort of sense of humility, and realize that you may have your own ideas about will be a good idea and what wouldn't be a good idea, and that's perfectly fine, but we are all subject to the limits that are put in the Constitution. And so even if you feel very strongly that the federal government should have a robust role in public education, there is a process to that, and the correct process is to go and create a constitutional amendment and says, hey, you know what, the federal government was not given the power for the public education, but they should have that power. So now we're going to vote on that as a country. And so just to educate oneself about the origins of the Constitution, where it came from, why we have one the Declaration of Independence, which really articulates a kind of a moral framework in which the Constitution is situated. But I think again, the most important thing is to have that sense of humility, is to realize but just because you think something is a good idea, or just because you think something is a bad idea, it doesn't necessarily mean that the Constitution agrees with you. Again, I think that giving the federal government the power to have an income tax and take money from people that they've earned is a terrible idea, and I think it's a disastrously bad policy. But I have to have the humility of recognizing that most people disagree with me, and they passed an amendment giving the federal government that power or sol familiarize yourself with a document familior, familiarize yourself with this history, but also try to have the character to recognize that we all have to approach it for the sense of humility and realize that not everything you think should be in it is in it. And they even contain some things that you disagree with, And guess what that's compromised in that That's that's what you have to have in order to have a fruition democracy, Like we have a respect of the people's rights. You can certainly advocate for your own rights, but at the end of the day, you recognize that we live in a large society with lots of different people with lots of different respectives in face and let's try to respect each other and get along absolutely all right, So a fun question, Do you have a favorite clause or a favorite amendment? Yeah, I think so. So. I think that for me, it's a little bit ob scure, and most people haven't read it because it's a little bit outside of the build rights. But for me, it's the fourteenth Amendment. Fourteenth Amendment was added to the Constitution after the Civil War to make clear that there were significant limits on how much power escape governments could exercise. Up until that point, there really weren't any significant limits in the federal Constitution as against state governments. The federal government, I'm sorry. The US constit up until that point is quote mostly to the power of the federal government. But what happened with the fourteenth Amendment in eighteen sixty eight is that people realize, you know what, we thought that states would be much more respectful of people's freedom, and we thought that states would be much more enlightened in the way they're governed. And you know which is made of a state. They're pretty horrible. Sometimes states were the ones. It was state governments that propped up the institution of slavery. It was state governments that instituted these things called black codes and Jim Crow, which was an American form of aparthet of racial separation that happened in the wake of the Civil War after the elimination of formal slavery. And I think it was really beautiful and people got together and said, you know what, we've replaced way too much faith in the integrity and the legitimacy of state governments. And so we're going to add this fourteenth Amendment to the US Constitution that says, from now on, states have to respect the right of people to eat, the protection of the law. I mean, don't treat me differently because of the color of my skin or because I happen to be an or woman. States have to respect due process, which means they can't hurt you or take anything away from you without a valid procedure. And also, and this is a really key one that the screenport unfortunately you may detect the team here has fallen down on the job of protecting There's also a provision of the fourteenth Amendment that says that most state should enforce any law that impairs the privileges or in munities of citizens in the United States, which is essentially this whole massive of rights to bed that provision of fourteen PENDENMA so far has not been enforced in any serious way, but if it were properly enforced, it would protect things like the ability to pick what job you want to do for a living, protect your ability to own property and to do what you think is best with that property to them provided to recognize that the group of rights to travel around in the country or travel around the state, make decisions about your family, et cetera. So that's what I'm working on with my colleagues. One of the most important things that I've worked on throughout my career and the constitutional lawyers persuading the Supreme Court to be faithful, to be more faithful to the text of the fourteenth Amendment for them to summarize fourteenth Amendment was added to the Constitution after the Civil War to act in the state that's been made, which is to put too much confidence in the integrity and the trust bodiness or state governments who were much more much much to your trusting and state governments and the poor Mended says you all. We need to equip people of the ability to assert individual rights against state governments, and that's what they did. Yep, we're always working toward that more perfect unionista, as they said. All right, one final fun question. If the Bill of Rights or if the Constitution, including the Bill of Rights were an emoji, what do you think it would be. I think it would be a sword in the shield. I think that that one of the biggest risks when you create a government is that you will create something that ends up harming you in exactly the way that you've You've created it to protect your flum One sort of whimsical way to put it would be to say, if you imagine you own a farmer or a ranch and you have a bunch of coyotes stealing your livestock and menacing your children. If you bring a bunch of timberwolves onto the land, you will solve your piote problem, but you'll now have a timberwol problem. You've got timberwolves. Yeah, the government was created to protect us, you know, from things like you know, bandits and robbers, and you know bullies and so forth. And it doesn't an effective job. But would you have to be careful of to make sure the government itself doesn't become a bandit and a bully. And that's really what the Constitution was designed to do. And so the way I see the Constitution, the Bill of Rights is it's kind of a sword and a shield that equips each and every one of us with the ability to protect ourselves against this very powerful entity that we've created, namely the government. But I think we do need because there really are bad guys out there, and there really are countries and you know, timings out there who want to do harm to us. So we need a government to protect us. But guess what, the government itself is perfectly capable of becoming a bandit and a bully. And so the Constitution is our sword and shield against the power of the government. Yeah. I love that answer. I think we will leave it there today. Thank you so much, Clark the pleasure. I love that Clark said that the Constitution is a sword and a shield. It's a sword because it's a weapon we can use to fight back if our rights are being threatened, and it's a shield because it protects us and our rights. So it's a weapon and a way to defend ourselves. And that is something pretty special that we have here in America. Thank you so much for listening. Next time we'll be talking about George Washington, how he was chosen as president, and all about his inauguration when he became our first president. In the meantime, you can find us at Growing Patriots on Instagram, Twitter and Facebook. Until then, they're pretty us solved for Germany. And this has been a presentation of the FCB podcast Network where real talk lifts. Visit us online at FCB podcasts dot com.
