| Speaker | Time | Text |
|---|---|---|
| We're here in the sanctuary of democracy. | ||
| Great responsibilities fall once again to the great democracies. | ||
| American democracy is bigger than any one person. | ||
| Freedom and democracy must be constantly guarded and protected. | ||
|
unidentified
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We are still at our core a democracy. | |
| This is also a massive victory for democracy and for freedom. | ||
| Today marks halfway to the first hundred days of the second Trump administration. | ||
| Also a great day to have Jeffrey Rosen. | ||
| Cease Van Bureau's know him as the president and CEO of the National Constitution Center in Philadelphia. | ||
| And I want to start with sort of you taking the lead here. | ||
| What do you think has been the most interesting constitutional question that has come up in these first 50 days of the second Trump administration? | ||
| The most interesting question is the scope of the unitary executive. | ||
| Ever since the Reagan administration, conservatives, as well as some liberals, have been arguing that the president should have complete control over the executive branch, and that means he should be able to fire any official he wants for political reasons, not just for cause. | ||
| Ever since the 1930s, the U.S. Supreme Court has upheld the constitutionality of independent agencies like the Federal Trade Commission and the Federal Communication Commissions, some of which say the president can't fire their officials except for good cause, like corruption or malseasons. | ||
| So the big constitutional question is, are independent agencies constitutional? | ||
| Should the Supreme Court overturn the decision from the 1930s that's called Humphreys Executor that allowed Congress to set up independent agencies? | ||
| And should the president have total control over the executive branch or not? | ||
| What's an independent agency? | ||
| An agency established by Congress to check the president whose heads can't be fired by the president. | ||
| In upholding them, the Supreme Court said they're quasi-judicial and quasi-legislative. | ||
| The Federal Trade Commission, for example, might adjudicate crimes against companies for violating antitrust laws, as well as enforcing those laws. | ||
| Or the Federal Reserve, famously, is independent. | ||
| A head is appointed for a term that transcends the term of a particular president, and the president can't tell the Fed what to do. | ||
| So that's what makes them independent. | ||
| Unitary executive theory. | ||
| What does that term mean? | ||
| Unitary executive, it comes from Alexander Hamilton writing in the Pacificus letters of all things. | ||
| Alexander Hamilton's the most famously pro-executive of all the founders. | ||
| He wants an executive so vigorous, so energetic, that Jefferson accused him of trying to set up a quasi-monarchy. | ||
| Remember at the Constitutional Convention, he says the president should serve for life so that he can't be corrupted by the legislature. | ||
| He didn't win on that score, but he did insist the president should be very vigorous. | ||
| And in a case called the Myers case, Chief Justice William Howard Taft, who's a huge admirer of Hamilton and thinks that Hamilton is the greatest founder, says the president should be able to fire any executive branch official. | ||
| Myers involved a postmaster, and the president wanted to be able to fire him. | ||
| And Chief Justice Taft agreed, saying Article II of the Constitution, which gives the president the executive power and vests the executive power in the president, to use the language of the Constitution, means that the president's control over executive officials should be complete. | ||
| So these questions about hiring and firing, removal they're called, are central to the unitary executive theory. | ||
| In the Myers case, Justice Louis Brandeis, another great hero, who's, except Brandeis' hero, is Thomas Jefferson, not Alexander Hamilton, he dissents and says the point of the Constitution is liberty, not efficiency, and it's designed to prevent the president from being an autocrat. | ||
| So therefore, Louis Brandeis thought that Congress should be able to protect certain executive officials from being fired. | ||
| And the U.S. Supreme Court embraced Brandeis' view in this case called Humphreys Executor in the 1930s. | ||
| Wasn't it Brandeis that said sunlight is the best disinfectant? | ||
| Absolutely. | ||
| Such a great hero of transparency and free speech. | ||
| On the hiring side, we were talking about this week in Doge, and there was a caller earlier that said that Elon Musk was never confirmed by the Senate, that he should be confirmed, that what he's doing is illegal. | ||
| When does the advise and consent role apply? | ||
| And should it apply to an agency within the White House like Doge? | ||
| A crucial question that'll likely be tested before the courts. | ||
| And the Constitution gives the president power to appoint what are called inferior officers. | ||
| And inferior officers do have to... | ||
| They probably don't like that term. | ||
| No, no, nor did lower court judges like being called inferior court judges. | ||
| The Constitution is pretty rough when it comes to language. | ||
| But inferior officers do have to be appointed by advice and consent. | ||
| So if Elon Musk is an inferior officer, he does have to go through sound confirmation. | ||
| And it's a big question, is he running Doge? | ||
| In their court representations, the administration has said that Elon Musk is not running Doge, but in a State of the Union address, President Trump said he was. | ||
| So a lot is likely to hang on whether or not he is. | ||
| What's your read on the Supreme Court right now, and especially that decision last week when it came to the White House trying to cancel contracts out of the USAID and the Supreme Court coming back and saying in a five-to-four ruling last week that the USAID had to honor some $2 billion in contracts? | ||
| Such a fascinating and illuminating decision. | ||
| So there, Chief Justice John Roberts and Justice Amy Koney Barrett join Justices Kagan, Sotomayor, and Jackson in saying they allowed a lower court to basically stay the cancelization of $2 billion in funds. | ||
| And the claim is that there'd be irreparable harm because a lot of foreign countries have come to rely on this aid, and therefore it was arguably a violation of the Administrative Procedure Act to cancel the funds without further study. | ||
| What's so interesting about this case is it suggests there might be a split on the court, in particular with Justices Roberts and Barrett. | ||
| They might be far more sympathetic to claims about a unitary executive branch and the president's power over the executive branch than they are to the president's effort to refuse to spend congressionally allocated funds. | ||
| This is called impoundment. | ||
| When the president doesn't want to spend money Congress has allocated, there's a law on the books, the Impoundment Control Act, passed in the wake of Watergate when President Nixon tried to refuse to spend funds, that some say is an unconstitutional infringement on the unitary executive power. | ||
| But it's possible, although we have to see, that Chief Justice Roberts and Justice Barrett, along with the Liberal justices, might say, no, we have to enforce the separation of powers. | ||
| Congress allocates money and the president is infringing on congressional prerogatives when he refuses to spend it. | ||
| So that would be a significant difference on the court, broad power of the executive over the executive branch, but also broad power of Congress to require that he spend funds. | ||
| Staying on the courts for a second, what do you make of some of the concern that's out there right now that the president, that Donald Trump could defy the courts? | ||
| It's Erwin Chemerinsky, the dean of the Berkeley School of Law at the University of California. | ||
| A column today in the New York Times. | ||
| If Trump defies the courts, then what is the question that he asks saying that judges are constrained in their ability to actually make presidents obey their court orders? | ||
| The most widely accepted definition of a constitutional crisis is if the president defied an unambiguous order of the U.S. Supreme Court. | ||
| That's never happened before in American history. | ||
| Andrew Jackson famously may have said, John Marshall has made his decision, now let him enforce it in the Cherokee Indians case. | ||
| He probably didn't because the court didn't actually order him to do anything. | ||
| But neither Jackson nor any other president has directly defied an unambiguous order. | ||
| If the president did that, that would be a crisis. | ||
| If he doesn't, according to that definition, it's not a crisis. | ||
| And it's true that the president can't be forced to obey the Supreme Court. | ||
| The courts have neither purse nor shield, as Alexander Hamilton again said in the Federalist Papers, and they rely on the president's voluntary acquiescence. | ||
| So it is significant that despite some very serious judge bashing by administration officials of lower court decisions, the president has not said he'll defy the U.S. Supreme Court. | ||
| In fact, he suggested he would comply with the U.S. Supreme Court. | ||
| And in that sense, we are not yet in a constitutional crisis. | ||
| Do you think we throw around the term constitutional crisis too easily or too much these days? | ||
| Yes, I think we do because it's often. | ||
| When should we use it then? | ||
| I like that really rigorous definition. | ||
| The president defies an unambiguous order of the Supreme Court. | ||
| That would indeed be a crisis. | ||
| Nothing in the Constitution gives us a mechanism for resolving that. | ||
| But short of that, I don't think we're in a crisis. | ||
| Jeffrey Rosen is with us taking your phone calls in these last 35 minutes or so of the Washington Journal today. | ||
| Phone lines split as usual. | ||
| Democrats 202-748-8,000. | ||
| Republicans 202-748-8001. | ||
| Independents 202-748-8002. | ||
| As folks are calling in, and if they've never visited that beautiful building in Philadelphia, what is the National Constitution Center? | ||
| It's so exciting. | ||
| As we prepare for 2026, in the 250th anniversary of the Declaration, you've got to come to the National Constitution Center. | ||
| C-SPAN friends, bring your kids and come see it. | ||
| Of course, there's the, it's right on Independence Mall across from Independence Hall, the most inspiring view of Independence Hall in America. | ||
| And there's the statues of the framers so you can see how tall they were and imagine what it was like to be in the room where it happened. | ||
| Live theater for kids. | ||
| We're about to announce a new founding principles gallery with some really exciting documents for 2026 that I'll be able to talk about soon. | ||
| And just amazing exhibits about the First Amendment and Reconstruction and the 19th Amendment. | ||
| It's just the most inspiring place imaginable. | ||
| In addition to all that, of course, if you can't come to Philly, you've got to go to the website, constitutioncenter.org. | ||
| The interactive Constitution is such a, it's such an illuminating resource in these challenging constitutional times. | ||
| You can find the best scholars on the left and the right, liberals and conservatives, exploring areas of agreement and disagreement about the Constitution. | ||
| So you can find Justice Amy Coney Barrett and Neil Catiel with a thousand words about what they agree, the habeas corpus clause means, and separate statements about what they disagree about. | ||
| It's just this remarkable modeling of civil dialogue about the Constitution and a great resource as you try to figure out what's going on in the news. | ||
| And I will say it's a great resource as somebody in this job. | ||
| It's always very helpful. | ||
| Each week I find myself going to it. | ||
| Constitutioncenter.org is where you can go. | ||
| Barbara in Vermont is up first. | ||
| Independent, Your Honor Jeffrey Rosen. | ||
| Good morning. | ||
|
unidentified
|
Hi. | |
| So I have a question about, it was in the news, and nobody's been talking about it, where in the last, at least last year or even before, President Biden was actually not signing his executive orders, supposedly. | ||
| It looked like there was a robo-signature of some sort, you know, the same, you know, like a print signature. | ||
| And the question is, who was signing those documents? | ||
| Now, Mike Johnson, the Speaker of the House, Mike Johnson, met with Joe Biden, oh, a year and a half ago, and he asked him a question about when you signed the order to stop the LNG, you know, delivery, whatever, having LNG available to people. | ||
| And he said, no, Biden said, no, I didn't do that. | ||
| It was really for an investigation to see how that would work, whatever. | ||
| So Joe Biden didn't know what he was signing. | ||
| So how is constitutionally, and talking about a crisis, what's going to happen to those documents and who was signing them going further? | ||
| Barbara, I think we got your questions. | ||
| Thanks so much. | ||
| I don't know the details about whether or not President Biden signed executive orders, so I can't answer that question. | ||
| But the question is important because it does remind us that the use of executive orders by presidents to achieve, by fiat, what they're unable to achieve from Congress, is something that presidents of both parties have been doing. | ||
| And they've been doing it, well, ever since the New Deal, when the executive order number jumped from about 300 in the Theodore Roosevelt administration to 3 or 4,000 in the SDR administration, the number has settled into something like 300 a term of Republican and Democratic parties in the last couple of administrations. | ||
| But President Biden famously attempted to cancel student debt even after the Supreme Court said he couldn't. | ||
| He didn't defy an unambiguous ruling of the Supreme Court. | ||
| He tried to pass the debt relief under a different statutory provision. | ||
| So it certainly wasn't a constitutional crisis. | ||
| But it was a vigorous use of executive authority to try to get around the courts in Congress. | ||
| And in that sense, President Trump is not trying something new. | ||
| How much of the Constitution refers to executive orders? | ||
| Or is there a specific place where it lays out what he or she can and can't use an executive order for? | ||
| There's not. | ||
| The word executive order doesn't appear in the Constitution. | ||
| The first executive orders were issued by President Washington, who issued just a handful of them, I think less than 10. | ||
| There's this amazing copy of Washington's Constitution that you can see at Mount Vernon, which is another place that everyone should visit. | ||
| And President Washington is going through the Constitution and writing president powers. | ||
| He's taking notes in the margins. | ||
| Basically, here's what I'm allowed to do, president, and here are my powers. | ||
| But there's so few powers. | ||
| He's got to execute the law. | ||
| Washington decided on his own that he could receive ambassadors, even though that's not written in the Constitution. | ||
| So George Washington decided that he had a power to issue executive orders, even though it wasn't explicitly enumerated, and presidents have been expanding on their powers ever since. | ||
| It's amazing to see the first president do his homework and be able to read it. | ||
| It's so diligent and thoughtful and rooted in the text. | ||
| He had such a sense of role of what he was and wasn't allowed to do, and that's why he was the greatest American of all times. | ||
| Lester, Virginia, Democrat, good morning. | ||
| You're on with Jeffrey Rosen. | ||
|
unidentified
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Yes, my question is, I'm just thinking that the Supreme Judges are government officials, the congressmen are government officials, the services are government officials. | |
| What would stop the president for firing those folks taking over their responsibilities and duties? | ||
| Great question. | ||
| And the Constitution would stop him. | ||
| Article 3 of the Constitution appoints judges of the Supreme Court for life, for good behavior, along with the judges on such inferior courts as Congress may choose to establish. | ||
| So, life tenure for judges comes from the Constitution, and congressional terms come from the Constitution as well. | ||
| The Constitution specifies how long House members and senators are appointed. | ||
| And therefore, it's really clear from the text of the Constitution that although the president may have a lot of control, some say complete control, to hire and fire executive branch officials, he has no power, zero control, over the other branches of government. | ||
| Robert in Ohio, Republican, good morning. | ||
|
unidentified
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You're on with Jeffrey Rosen. | |
| How are you doing? | ||
| What's your question, Robert? | ||
|
unidentified
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My question is: you know, you say we've never been in a constitutional crisis, but just when Biden was president, he refused to accept the Supreme Court's ruling over us not paying for everybody else's college. | |
| I didn't get to go to college. | ||
| I didn't go to college. | ||
| The reason was because I couldn't pay for it. | ||
| I couldn't afford it. | ||
| But now I'm paying for everybody else's college. | ||
| If we ain't never been in a constitutional crisis, what was that? | ||
| Great question. | ||
| And as I suggested a moment ago, President Biden was not defying an explicit order of the Supreme Court. | ||
| Remember, the Supreme Court said he couldn't cancel the debt under one provision of federal law. | ||
| And in fact, Chief Justice Roberts, in his Supreme Court opinion, made exactly the same point you do: that some people save so that they can try to go to college, and it's not fair to cancel the debt. | ||
| And when President Biden tried to re-cancel the debt, he was trying to do it under a different provision of federal law. | ||
| So it was kind of a legalistic effort to parse the statute and say, okay, the Supreme Court said I can't do it here. | ||
| I'm going to do it here instead. | ||
| That's why I said that it wasn't a crisis because he wasn't refusing to carry out an order. | ||
| But you're absolutely right that he was trying to circumvent the spirit of the Supreme Court's opinion. | ||
| Is that a unique thing for Joe Biden? | ||
| Have there been other presidents that have, if I can't do it this way, let me try circumventing it and going another way? | ||
| Happens all the time. | ||
| Remember, President Trump in his first term and the Muslim travel ban, the Supreme Court said you can't do it this way, and he tried it another way. | ||
| That's what lawyers are for. | ||
| Jennifer in Brandywine, Maryland, Democrat, good morning. | ||
| You are next. | ||
|
unidentified
|
Yes, good morning. | |
| I was just wondering, where is it constitutional that the president can pardon people that try to murder federal police officers, those people that attack the Capitol, those people that scale the walls of the Capitol? | ||
| Is that in the Constitution? | ||
| Those people, they attack federal police officers. | ||
| They tried to kill those people. | ||
| Another really important question. | ||
| Yes, the Constitution gives the president the pardon power, and the pardon power is deemed to be unlimited, that basically he can pardon people for any reason as long as it doesn't violate some other provision of law. | ||
| So he can't corruptly sell a pardon. | ||
| That would violate bribery statutes. | ||
| But even, you know, if he thinks that they're freedom fighters rather than insurrectionists and wants to pardon people who've murdered someone else, he has total power to do that. | ||
| Now, of course, no president has ever tried to pardon himself. | ||
| And that would raise a novel constitutional question. | ||
| If President Trump or any president were to say he himself couldn't be prosecuted, that would go up to the U.S. Supreme Court. | ||
| And since they haven't confronted that question before, we don't know what they would say there. | ||
| Yesterday, Canada's Liberal Party chose its next prime minister to replace Justin Trudeau. | ||
| What does the Constitution say about tariffs and the president? | ||
| Certainly an issue that the next prime minister will be dealing with when it comes to this administration. | ||
| Really interesting, the Constitution gives Congress the power to pass duties and imposts, but ever since the wave of tariffs at the turn of the 20th century, Congress has delegated that power to the president. | ||
| So tariff policy has tended to be driven by presidents. | ||
| Interestingly, it was the main defining distinction between the Democrats and the Republicans in the late 19th and early 20th century with the Republicans in the spirit of their hero, Alexander Hamilton, favoring moderate tariffs for income as well as protection and the Democrats being less sympathetic to tariffs. | ||
| You talk about Congress delegating the power to the president. | ||
| Has it been a one-way street over the centuries? | ||
| Is there a place where the president delegated a power back to Congress saying, oh, this is your territory? | ||
| Or has it always been more of the creeping executive theory? | ||
| Is that what it's called? | ||
| the imperial presidency i like the creeping executive is a really good phrase because that's what i didn't mean to coin a new phrase no No, no, there you go. | ||
| I think there's a law review article in our future. | ||
| That is a, it is a one-way ratchet. | ||
| And the phrase imperial presidency comes from Arthur Schlesinger, who's describing in the mid-20th century how all power seems to rush from Congress to the president. | ||
| It really started the election of 1912 turns out to be really important here because both Theodore Roosevelt and Woodrow Wilson insist that the president is a steward of the people who directly channels popular will. | ||
| This completely alarms William Howard Taft, my hero, who is a constitutionalist president, the last president who thinks his powers are constrained as a kind of chief magistrate. | ||
| And he thinks Wilson and Roosevelt are demagogues who are trying to accrete power in the presidency in an unconstitutional way. | ||
| Taft, of course, loses. | ||
| And ever since Roosevelt and Wilson, presidents of both parties have insisted that because they're the one national office elected by the whole nation, they should have all the power. | ||
| Congress has responded by delegating more and more power. | ||
| And the biggest delegation happened during the New Deal when Congress created all of these executive agencies, some of the independent agencies that are now being questioned, and then passed laws allowing the executive branch to fill in the blanks. | ||
| There's a huge question on the Supreme Court, is that delegation constitutional? | ||
| And there's a legal doctrine called the non-delegation doctrine, which says Congress can't give the president a blank check. | ||
| It can't give the president power without specifying the contours. | ||
| That would strike down several of the regulations that Congress has passed since the 1930s. | ||
| And the Supreme Court just recently overturned a case called Chevron, which had required judges to defer to administrative interpretations of federal statutes when the statutes were ambiguous. | ||
| And in this case, called the Loper-Bright case, said the judges should make their own decisions about whether or not the text allows the regulation or not. | ||
| So that's one example of the Supreme Court's pushback on congressional delegation to the executive branch, an effort to enforce Congress's prerogatives, but in the process, really empowering judges. | ||
| I love the history here. | ||
| 1912, so Taft was running as the Republican, Roosevelt, the Bull Moose Party, and then Wilson's the Democrat. | ||
| And Taft and Roosevelt split the vote, sort of, and Wilson comes in and wins that election, right? | ||
| Absolutely. | ||
| And Taft runs specifically to defend the independence of judges and the Constitution. | ||
| Remember, he's yearning to be Chief Justice. | ||
| He never wanted to be president. | ||
| His wife and Theodore Roosevelt made him basically be vice president. | ||
| And he, although he wants to retire, is just so afraid about demagogic presidents. | ||
| Things, once populist presidents start insisting that they alone represent the people and also attacking Supreme Court judges, Taft was really upset that Roosevelt was attacking Supreme Court justices by name. | ||
| Justices ruling in railroad cases for workers were attacked by Theodore Roosevelt. | ||
| And Roosevelt said that Congress should be able to pass a constitutional amendment overturning Supreme Court decisions by majority vote. | ||
| Taft thought that was a grave threat to the Constitution. | ||
| It is worth thinking about these attacks on judges today. | ||
| And just speaking historically, calls for the impeachment of judges because you disagree with their rulings are pretty unprecedented. | ||
| Ever since Justice Samuel Chase was impeached during the Jefferson administration for his drunken partisan harangues on the bench, and he was indeed a drunken partisan who would attack defendants who were convicted under the Sedition Act passed by the Adams administration. | ||
| The Jeffersonian Republicans come in and say he's a big partisan. | ||
| We've got to impeach him. | ||
| John Marshall thinks if that impeachment succeeds, the whole independence of the judiciary is finished for all of American history. | ||
| And because of Marshall's efforts and ultimately the patriotism of Jeffersonian Republicans, the Chase impeachment fails. | ||
| Ever since Chase was acquitted, that precedent has come to stand for the proposition, you cannot impeach judges and justices simply because you disagree with their rulings. | ||
| We don't do that in America. | ||
| That would undermine the independence of the judiciary. | ||
| So, to the degree that some members of the Trump administration, I think in particular Elon Musk, who's been very explicit about this, are calling for lower court judges to be impeached because he disagrees with their rulings. | ||
| That's a grave violation of the Chase precedent and of the independence of the judiciary. | ||
| Can I just one more question on Congress ceding over power to the executive? | ||
| Has there been an instance that you can think of when that happened and Congress was later able to claw back that power? | ||
| Or once it's gone and that imperial presidency has taken that, is it gone? | ||
| Really great questions. | ||
| I think they clawed it back during the Watergate era. | ||
| That Impoundment Control Act passed in 78 was a response to Nixon's efforts to impound. | ||
| And presidents ever since Jefferson had tried to impound funds. | ||
| Jefferson, I think, successfully managed to not spend some congressionally authorized funds. | ||
| So it wasn't totally clear from precedent or the Constitution whether or not he could do it. | ||
| Congress had basically acquiesced. | ||
| But after Watergate, they said you can't do that and passed the Impoundment Control Act. | ||
| They also passed the War Powers Resolution as another example. | ||
| Presidents had been sending troops without a congressional declaration of war. | ||
| Congress says, after a certain amount of time, you've got to come back to us and ask. | ||
| So Watergate was the biggest backlash against the unitary executive. | ||
| People felt Nixon had corrupted the presidency by insisting that the president was above the law, and many of the post-Watergate reforms tried to claw back power to Congress. | ||
| Plenty of calls for you. | ||
| Maurice Portage, Michigan, Independent. | ||
| Good morning. | ||
| Good morning, Maurice. | ||
| What's your question? | ||
| I got to shut off the TV just a minute, please. | ||
|
unidentified
|
My question is, why are we so upset about somebody trying to control excessive spending? | |
| Jeffrey Rosen. | ||
| Good question. | ||
| Some people are upset and others like it, of course. | ||
| But the constitutional question is how do you control excessive spending? | ||
| If Congress passes money and requires it to be spent, as was the case with USAID, it's a question of upholding the law. | ||
| And the president can't arbitrarily refuse to spend money Congress has allocated because people have come to rely on it. | ||
| There are contracts that are let, foreign governments expect it, and there are jobs at stake. | ||
| That's why this lower court decision last week said the Administrative Procedure Act, which requires notice and comment and reasonable procedures before you can make a policy change, forbids what the president is doing. | ||
| That it's just not a rational way of cutting spending. | ||
| And that's the decision that the Supreme Court, at least temporarily, has upheld. | ||
| So is it as of right now, it's not that you can't do it, you just have to do it the right way? | ||
| I think that is the case when it comes to USAID. | ||
| Boynton Beach, Florida, Alicia, Independent. | ||
| Good morning. | ||
| Alicia, are you with us? | ||
| Then we go to Anne Marie out of Tampa, Republican. | ||
| Ann-Marie, you are on with Jeffrey Rosen. | ||
|
unidentified
|
Hi. | |
| I was calling regarding one of the last callers that was talking about the January 6th insurrection, how the people were pardoned. | ||
| From what I've read, of course, they don't show this on all the networks, but it was a setup by the committee that was looking to it. | ||
| And it looks like they did a whole big setup, and you don't see that in all the news. | ||
| What do you think was a setup, Anne-Marie? | ||
|
unidentified
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That the people that were on the committee, there were so many things about it. | |
| They were not. | ||
| You're talking about the Select January 6th Committee? | ||
|
unidentified
|
Yes. | |
| Yes. | ||
| They did want, you know, I know the president asked to get back up because he, you know, to make sure nothing crazy happened, but he did tell his people, go peacefully and, you know, and then all these crazy things happen. | ||
| And I guess the bomb went, I don't know, other things happen, and they never went into who did that. | ||
| That's Anne-Marie in Tampa. | ||
| What was your view during those hearings, the Select January 6th Committee? | ||
| And did it bring up constitutional issues in your mind? | ||
| Well, it certainly brought up the question of whether there's historical precedent for this kind of insurrection. | ||
| The committee found in findings that have not been challenged factually that the president invited his supporters to come to Washington, that he encouraged the march on the Capitol, | ||
| that he didn't stop the violence for three hours as the crowd was attempting to hang Mike Pence, that a tweet that the president sent in the middle of the insurrection expressing sympathy for it helped to threaten Pence's life and that only after three hours did he call off the attack. | ||
| And I think those findings have not been challenged factually. | ||
| Is there a precedent for this in American history? | ||
| Certainly ever since the Whiskey Rebellion at the time of the founding, there have been armed insurrections against federal power. | ||
| Thomas Jefferson's family famously encouraged the Whiskey Rebellion. | ||
| He always said that a little rebellion every couple years is good for liberty. | ||
| He also encouraged violence against Alexander Hamilton when a mob threw a rock at him during the early Republic. | ||
| And Jefferson pardoned the Sedition Act, people who were convicted on the grounds that the law was unjust. | ||
| So you can agree, you can debate whether or not that tolerance for insurrection by Jefferson and others justifies President Trump's pardons. | ||
| But in terms of the facts of what happened, I do think it's important to note that the committee's report has not been factually challenged. | ||
| I want to come to another column from today's papers. | ||
| Philip Hamburger writing in the pages of the Wall Street Journal, talking about a tweet from March 4th from President Trump on, I should say X, a post on X, about illegal protests on college campuses. | ||
| Philip Hamburger writing, when President Trump tweeted on March 4th that all federal funding will stop for any college, school, or university that allows illegal protests, he puzzled many academics as most protests are lawful and constitutionally protected. | ||
| What's an illegal protest? | ||
| Well, the Supreme Court said in the Brandenburg case that speech is protected in America unless it's both intended to and likely to cause imminent violence. | ||
| And of course, the question of whether January 6th itself was a legal protest or an illegal insurrection is exactly the legal question that President Trump solved by pardoning the protesters or insurrectionists, as you have it. | ||
| So in January 6th, the argument was that although President Trump may have encouraged the march, he didn't intend to and succeed in inciting illegal violence. | ||
| And in the case of protests before universities, there are few examples of protesters who are intending to and succeeding in inciting legal violence. | ||
| So that's why you can understand Philip Hamburger saying that President Trump is applying a double standard there. | ||
| What was Brandenburg v. Ohio about? | ||
| It was about a Ku Klux Klan rally. | ||
| I mean, that shows how vigorously and deeply we protect free speech in America. | ||
| There's a Klan rally. | ||
| This is the 1960s. | ||
| A guy gets up in a Klan outfit and says, unless the white people are attended to in this country, there's going to be revengeance. | ||
| Revengeance is. | ||
| Revengeance was his word. | ||
| And the U.S. Supreme Court said, even though that's poisonous hate speech, the guy's standing up in a Klan outfit, he's threatening revenge, the speech wasn't intended to and likely to cause imminent violence. | ||
| It's an incredibly high standard. | ||
| It makes the U.S. the most speech-protective country in the entire world. | ||
| It's really one of the crowning jewels of our free speech tradition that even the thought we hate, as Olive Wendell Holmes called it, is vigorously protected unless it's intended to and likely to ripen into violence. | ||
| Brandenburg was channeling and building on a brilliant concurrence written by Justice Brandeis, who, as you can tell, is one of my heroes, who in the Whitney case in the progressive era said that those who want our independence believe that the final end of the state is to make men free to develop their faculties. | ||
| And in its government, the deliberative forces should prevail over the arbitrary. | ||
| I won't do the whole thing as a party trick, but it's this incredibly inspiring passage that C-SPAN viewers go to the National Constitution Center website and read the Whitney versus California case and then read Brandenburg and you'll get a sense of really how strong free speech protections are in America. | ||
| And that's why generally, even if speech is hateful and upsetting and even if people gather and rally around in response to it, unless it's intended to and likely to cause imminent violence, it's protected in America. | ||
| Just about seven or eight minutes left with Jeffrey Rosen this morning. | ||
| A reminder, the House is in at noon Eastern for morning hour, 2 p.m. for legislative business. | ||
| The Senate is in at 3 p.m. today. | ||
| You can watch Gabble Gavel coverage, of course, as always, here on C-SPAN and C-SPAN 2, respectively, for the House and Senate. | ||
| And Alicia is back from Boynton Beach, Florida, Independent. | ||
| We'll try a second time. | ||
| Go ahead. | ||
|
unidentified
|
Hi, good morning. | |
| Good morning. | ||
| What's your question or comment? | ||
|
unidentified
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Yeah, my question is, well, no matter how we cut the mustard here, when we run the numbers, no matter in any direction, we understand that 70% of the voting, eligible voting population in the United States, 70%, did not vote for Donald Trump. | |
| So moving forward, is there any historical methods that previous populations have dealt with this in history? | ||
| Great question. | ||
| It's really striking how the founders didn't expect popular majorities to necessarily elect the president. | ||
| They thought that many presidents would not get a majority in the Electoral College and that the elections would be thrown into the House of Representatives. | ||
| And that was the method that they thought would resolve elections. | ||
| That happened in 1824 when John Quincy Adams is running against Andrew Jackson. | ||
| No one gets a majority in the Electoral College. | ||
| Thrown into the House. | ||
| The House chooses Adams, even though he's gotten less votes than Jackson in exchange for the support of Henry Clay, which Jackson says is a corrupt bargain. | ||
| And then he does accept the election results, but he wins against Adams four years later. | ||
| So the fact that the president's elected without a popular majority is not historically unprecedented, but it certainly does violate the increasing expectations in the 20th century that majority will rules. | ||
| And to that degree, whenever there's a president who's elected with a minority of the popular vote, but a majority of the Electoral College, as we saw in 2016 and in 2000, people feel that that violates the democratic principle. | ||
| And the fact that we may have a whole series of presidents elected without majority vote, it seems like it may become a structural reality of our current politics. | ||
| You mentioned the founders. | ||
| There's a great book that came out last year. | ||
| It's titled The Pursuit of Happiness, How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America. | ||
| We featured it on C-SPAN's book TV. | ||
| What's it about? | ||
| It is about the classical moral philosophy that inspired Thomas Jefferson and the other founders when they put that famous phrase, the pursuit of happiness, in the Constitution. | ||
| During COVID, I read the books on Thomas Jefferson's reading list that he said defined the pursuit of happiness for him. | ||
| This is Marcus Aurelius and Seneca and Epictetus and Cicero's Tusculan Disputations, which so many of them read. | ||
| And what I discovered came as a revelation, which is that for the founders, happiness meant not feeling good, but being good. | ||
| Not the pursuit of immediate pleasure, but the pursuit of long-term virtue. | ||
| And that discovery really changed my life. | ||
| It changed the way I think about how to be a good person, how to be a good citizen. | ||
| Most important, it changed my reading habits. | ||
| And now, having spent a year reading these great books during COVID, when I wake up now, my rule is that I have to read before I browse or surf. | ||
| And that's just been a great new habit. | ||
| And C-SPAN viewers should check it out. | ||
| What are you reading right now? | ||
| I am reading the biographies of the forgotten founders, because the next book is about how it's called The Pursuit of Liberty, how Hamilton versus Jefferson ignited the lasting battle over power in America. | ||
| And that'll be out in October, and it tells the story of all of American history through the Hamilton-Jefferson battle. | ||
| But the one after that, which I've just started, is going to be about how the character of the founders shaped America. | ||
| And founders like Governor Morris, Roger Sherman, George Wythe, that I was just reading about today, an amazing biography of George Wythe, are so excited. | ||
| I can't wait to tell their stories. | ||
| Shall I just share the George Wythe story? | ||
| I just learned. | ||
| Okay, so here's the amazing story of George Wythe. | ||
| This is Thomas Jefferson's favorite law professor who teaches him everything he knows about law and also his youthful abolitionism. | ||
| Wyth's grandfather, George Keith, is a Quaker and a huge abolitionist. | ||
| Wyth is devoted to ending slavery. | ||
| He frees his own slaves. | ||
| He writes an opinion for the Virginia court striking down slavery. | ||
| Then he leaves the convention because his wife is dying. | ||
| He goes home and he has a kid with his housekeeper, who's a formerly enslaved woman, who he frees. | ||
| He has a son, Michael, with her. | ||
| And then he leaves half of his estate to the housekeeper and to Michael and half to his wastrel nephew who's come to live with him. | ||
| The nephew notices that the will gives half the estate to Michael and the housekeeper and he poisons all three of them. | ||
| He puts arsenic in their coffee. | ||
| With and the son, Michael, die in agony, the housekeeper, who sees him put the arsenic in the coffee, wants to testify against the nephew, but Virginia law at the time forbids black people from testifying against white people. | ||
| So this horrific, murderous nephew is acquitted and the heroic Wyth goes unvindicated. | ||
| Isn't that an amazing story? | ||
| Jeffrey Rosen is always one book and sometimes two books ahead and always willing to talk about the United States Constitution. | ||
| It's the National Constitution Center, ConstitutionCenter.org, and we do always appreciate your time. | ||
| So great to be here. | ||
| Thank you so much. | ||
|
unidentified
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Live Tuesday on C-SPAN. | |
| The House meets at 10 a.m. Eastern for morning speeches and noon for legislative business. | ||
| And we'll consider the Republican six-month spending legislation backed by President Trump to fund the federal government past Friday's midnight deadline to avert a shutdown. | ||
| On C-SPAN 2, live at 9 a.m. Eastern, Punch Bowl News hosts a forum featuring conversations with lawmakers and White House officials. | ||
| And live at 10 a.m. Eastern, the Senate will vote on the nominations of Steve Bradbury to be Deputy Transportation Secretary and Abigail Slater to serve as Assistant Attorney General for Antitrust. | ||
| On C-SPAN 3, live at 10 a.m., a House Armed Services Subcommittee hearing will focus on the current challenges and prospects of U.S. shipbuilding. | ||
| Then live at 2.30 on C-SPAN 3, a Senate Judiciary Subcommittee meets to discuss legislation that allows victims to sue companies that host child sexual abuse material. | ||
| These events all stream live on the free C-SPAN Now video app and online at C-SPAN.org. | ||
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| And now to the National League of Cities News Conference during our Congressional City Conference hosted here in Washington, D.C., members addressed housing, disaster assistance, infrastructure projects, and how the Trump administration's funding freeze is impacting cities. |