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July 20, 2023 - Dinesh D'Souza
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IF YOU CAN KEEP IT Dinesh D’Souza Podcast Ep625
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Coming up a special episode, I'll explore the contemporary implications of Ben Franklin's warning that the founders gave us a republic.
Quote, if you can keep it.
Have we kept it? I want to argue there's a wide gap between the America the founders intended and the America we have now.
But how do we get from the original plan, the original constitutional scheme, to the mess that we are in now?
I'll highlight some landmark Supreme Court decisions, paving the way for the Democrats and the left to distort and abuse the constitutional structure so carefully installed by the founders.
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Ben Franklin was asked, What kind of government the founders had given to the American people?
And he famously replied, a republic, if you can keep it.
Now, there are two aspects of this that are worth stressing.
The first is The If You Can Keep It.
And here is Ben Franklin 200 and more years ago, essentially saying that the American recipe is not a guarantee.
It doesn't last forever by itself.
It is the job of the American people, of us.
In fact, it's the job of each generation to protect the Constitution, to protect the structure or the set of arrangements that the founders put into place, To protect the Bill of Rights that was later appended to the original Constitution.
So if you can keep it means that It can be lost.
It can be endangered and the American experiment can in fact go down.
It doesn't mean America ceases to exist.
Geographically, America continues to exist.
In fact, geographically, America has expanded considerably since the days of the founding.
The American people, of course, do exist.
But America, the idea of America, and not just the idea of it, but the actual structural arrangements for our economic and political system, those become shattered and decimated.
The first part of what Ben Franklin is saying is just as important, a republic.
Now, notice that Ben Franklin didn't say a democracy, if you can keep it.
He said a republic, if you can keep it.
And I think this points to the fact that there are two forms of government here, and while they overlap, they're not identical.
There is a democratic form of government, and there is a republican form of government.
Now, very often today, and sometimes I will myself refer to the United States as a democracy.
Now, whenever I say a democracy, I mean we are a constitutional democracy.
We're not any kind of democracy.
We're a democracy under the rule of law.
But the rule of law, which are the laws made by the legislature, are under a super law that was made by a super legislature. Who's the super legislature? The founders.
What is their super law? It's the Constitution. So the Constitution overrides the laws that are made by democratic majorities. So when I say we're a democracy, I mean we are a constitutional democracy. And yet, inevitably, there are people who correct me. They go, no, Dinesh, we're not a democracy. We are a republic. Now, in one sense, those people are mistaken. Or to put it differently, we have a government that has democratic and republican elements.
Let's go to definitions for a moment.
Democracy simply means rule by the people.
And the demos. Demos means people.
Democracy in this sense is contrasted with aristocracy.
It's also contrasted with monarchy.
So in this sense, we are a democracy.
We have elections. The people do rule.
Let's remember Abraham Lincoln.
We have government of and for and by the people.
And this is a strongly democratic sentiment.
So in that sense, it is not wrong to refer to America as a democracy.
But I want to sort of agree with my critics by saying that in a deeper sense, or in another sense, It is true that there is a real difference between a pure democracy and a republic.
Now, what is a republic?
The term republic is not as clear as the term democracy.
A republican form of government is a government that is ultimately accountable to the people But it doesn't specify in what exact way.
And for the American founders, a Republican form of government took a very specific form.
And that's what I want to highlight here because there are two conflicting visions of our system that are now in play.
One is the pure democratic system, which I'll talk about in a little more detail in the next segment, and the other is the republican system.
Now, when we use the term democratic system, we're not talking here about ancient democracy.
In the ancient world, in ancient Greece, for example, where democracy was founded, many people say democracy was founded in ancient Greece, but that was a All the people, all the eligible people, all the citizens, in those days it was people who owned property, people who had a stake in the system.
In all of Athens, there were some 40,000 citizens who were allowed to vote.
And whenever there was a big question before the government, The people themselves would show up in the meeting space in the so-called agora.
They would debate the question and they would vote.
Should we go to war with Sparta?
Let's have a vote. Should we raise taxes?
Let's have a vote. Should we allocate some of the government money to building a new temple or a new idol?
Let's take it to a vote.
Obviously, we have not direct democracy in that sense, but representative democracy.
Representative democracy means, of course, that we elect other people.
We elect a Reagan, a Clinton, an Obama, a Trump.
We elect other people to rule in our stead.
And right now, we have Democrats on the left who think that our system is a purely democratic one, that the majority acting through elected representatives should have all their say, and that should be the decider.
But the Republican form of government that I'm going to talk about in the next segment along with the Democratic is very different from that.
It is an idea that we have a system that is not built merely on majority rule, but it's built on the idea of the rights of individuals.
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I want to highlight the two rival ways of looking at the Constitution and looking at the American system, one by the left and the other by the right.
Now, the left, in summary, uses a democratic system, small d, democratic system, and the right is attached to Mostly.
And I say mostly because, oddly enough, we'll see that there are elements of the right that don't accept this.
A Republican system.
And the difference can be highlighted in this way.
And here I'm relying on a very important book by Randy Barnett, a professor of constitutional law at Georgetown.
The book is called, Our Republican Constitution.
And this is what Barnett argues.
He says, look, the great divide in America is between those who believe that rights come first and then comes government.
So that's the Republican way.
We are individuals and our rights come first and the government is put into place to secure our rights.
That's the Republican understanding of government and of the constitution.
And the other way, which is the way of the left, the Democrats or the progressives is, first comes government and then come rights.
Now, how is it possible for government to come first?
Well, it's possible because the majority, by exercising its democratic prerogative, elects the government, and the government confers rights on you.
So the majority decides, okay, we're going to let these people have this, and we're going to let these people have that.
So rights first.
You can see that these are, although these approaches both use much of the same language, they talk about majorities and minorities and rights.
Nevertheless, it is a very different way of looking at it.
So the advocates of a democratic constitution, this is the left, they view we the people collectively.
We the people as sort of a single group.
So, once you have a majority, the majority then assumes the right to be the spokesman of all the people.
And then what the majority says kind of goes.
And yeah, there may be some narrow carve-outs for individual rights, but by and large, what the left says is that the presumption should be that the majority should be able to have its way.
The other approach, the Republican approach...
is very Lockean.
And by Lockean, I mean I'm referring to the philosopher John Locke.
It's the idea that we come into the world as individuals.
We are citizens in our individual capacity.
Our rights are individual rights.
Think, for example, about the right of free speech.
You have that right as an individual.
It's not a collective right.
Your right to conscience is an individual right.
Your right to vote is an individual right.
It might result ultimately in a sort of joint decision about whom the people want to put at the head of government, but each individual casts an individual vote separately.
Equal rights under the law means I have the right to be treated as an individual the same as every other individual in a similar or identical situation.
The democratic approach is, as Professor Barnett puts it, Hobbesian, by which I mean it is an exercise of raw power.
The majority is by definition the many, and the many are by definition more and therefore stronger than the few.
And so for Hobbes, politics is ultimately an extension of power, and since the majority have the power, the majority are the ones who make the decision.
But for Locke, it's not ultimately and solely a matter of power.
For Locke, it's a matter that we have, by virtue of being human, certain natural and inalienable or unalienable rights.
Now, what does the word unalienable mean?
Well, it means that these are rights that cannot be surrendered.
And this is a very shocking notion because it means that you can't give up a right even if you want to.
Now, there are many aspects of our humanity that we can give up through consent.
We marry by consent.
We enter into contracts by consent.
We take jobs by consent.
We sell our labor by consent.
So, for example, you can go to somebody and say, well, listen, I'll work for you Monday through Friday, five days a week, and you pay me so-and-so.
I'm giving up the right to my labor, at least for that duration, and I'm paid a fixed sum.
So my labor is alienable, which means I can sell it.
I have property that's alienable.
I can sell my house.
I can sell my car.
But I can't sell my right to free speech.
I cannot sell myself into slavery.
And so even though I can sell my labor, I cannot tell somebody else, listen, for a thousand dollars or for a million dollars, you can now...
Own me as a person.
There's no such thing as voluntary slavery.
So all of this is a way of saying that there is a certain kind of sacrosanct quality to rights, and these rights are possessed by individuals prior to having any kind of a government.
Now, in the next segment, I'm going to focus on Obamacare.
I'm going to follow Professor Barnett's analysis.
And I want to show not merely that Obamacare represents the affirmation of Obamacare by the court, represents a trend.
A triumph of the left, a triumph of the democratic as opposed to the republican way of understanding government.
But I want to show that ironically, Chief Justice Roberts and his affirmation of Obamacare shows that there are people on the right, on our side, who nevertheless accept the left's, quote, democratic or majoritarian understanding of the government.
And this is erroneous and this needs to be changed.
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I'm going to, in this segment, use the example of Obamacare to dramatize and highlight the conflict I've been talking about between the Republican, small r, Republican form of government, of understanding the U.S., Versus the left-wing or democratic, the small d form of understanding our constitutional structure.
Now, Obamacare was essentially a government mandate.
The government is forcing you to do something.
It's forcing you to buy health insurance.
Now, let's think of this from the point of view of individual rights.
From the point of view of individual rights, I may need health insurance.
I may or may not want health insurance, but it's up to me to decide.
I get to say if I want to spend the money, it's my money after all, to buy this protection.
And I might decide, well, you know what?
I don't need it. I'll forego it.
If something bad happens to me, I'll live with it.
So the question is, can the government...
Make you do something that normally you would have an individual right to refuse.
And this question can be asked in a very broad sense.
Let's even put aside the issue of healthcare for a moment.
Let's say the government decides it's going to tell you to exercise every day for 30 minutes.
Government passes the law.
Every American who's able-bodied of a certain age Let's just say from the ages of 18 to 65 must exercise for 30 minutes a day.
Now, can the government do this?
The Republican form of government says no.
Why? Because where is the power in the Constitution given to the government to exercise this kind of power?
It's not given at all. The government has certain powers.
They are enumerated powers.
But beyond this, the government can't do it.
Because it's going to trample on the space of individual prerogatives and individual rights.
In other words, you can advocate that I exercise, you can issue all kinds of releases and produce data that shows it's better for me to exercise, but you can't make me do it.
Let's say the government decides, for example, every American must eat three spears of broccoli every day.
It may seem like not a very onerous law, but the point is, where's the authority of the government to make that kind of a mandate?
Where does the government get off?
Where does it have the right to make you eat broccoli if you don't want to?
Let's say you decide I prefer carrots, or let's say you decide I don't want to eat vegetables at all.
I'll just take extra vitamins.
In other words, the point being, as a free citizen, as a free individual in a free country, the government cannot make you do certain things.
Now, it can make you do other things, but this is not something it can make you do.
And so this question is ultimately before the court with regard to health care.
Can the government issue a mandate?
And ironically, that's a decision that should have gone our way.
Obamacare should have been struck down.
But it wasn't. It was upheld.
And it was upheld by none other than the Chief Justice, which is John Roberts.
What's interesting here is to look at John Roberts' reasoning for upholding Obamacare.
Basically, what John Roberts said is the decision of who gets to make a law is Congress.
And John Roberts at Congress decided, admittedly very narrowly, admittedly by just a single vote, to have Obamacare.
Now, Congress cannot...
Roberts conceded, and this was his sort of rhetorical deference to the Republican argument...
The government cannot make you, quote, eat broccoli.
It cannot make you do 30 minutes of exercise a day.
The government cannot issue those kinds of mandates.
And so Roberts very artfully changed what Obamacare was about.
Even though Obamacare had explicitly been sold as a mandate and not a tax, we're not imposing a tax on American citizens, we're issuing an order for every American to do X, in other words, to buy health insurance, John Roberts said, if we look at it as a tax, then Congress has the power to tax.
And since Congress has the power to tax, I'm going to defer to the wisdom of Congress.
So John Roberts didn't say that Obamacare was a good thing or a bad thing.
He simply said that it's not our job, I'm now quoting him, to protect the people from the consequences of their political choices.
In other words, the people have voted for a government.
They voted for the Democrats as a majority, admittedly a narrow majority, but a majority nonetheless.
And this majority, democratically, has passed Obamacare.
And therefore, Obamacare stands.
So the judge, the job of the judge is to exercise judicial deference or judicial restraint.
And the point I want to make here...
Is that this philosophy of judicial deference or judicial restraint is not, if you will, Republican, but Democratic.
It is the philosophy of the left.
And what I'm showing here, and this is Professor Barnett's point in his book, is that you have Republican nominees to the court who Who are not wedded to a Republican form of government, who don't see rights as individual rights, but see rights as nothing but a reflection of the desires of the majority.
If the majority wants Obamacare, then we gotta give them Obamacare.
And so Obamacare becomes a very clear illustration that there are justices on our side.
And this is not only Justice Roberts, to some degree even Justice Scalia was very much a guy who said, listen, laws are made by the legislative branch, and that is Congress, and so we need to exercise a lot of deference to the legislative branch, whereas the point we need to make is that even the legislative branch needs to defer to the individual rights that are protected in the Constitution, and where the legislative branch exceeds its authority, the job of the Supreme Court is to say no.
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Use discount code AMERICA. The Declaration of Independence says that it is to secure these rights, meaning the natural, unalienable or inalienable rights.
It is to secure these rights that, quote, governments are instituted among men.
Now, this phrase is deep and pregnant with meaning and I want to reflect on it for a moment.
In any society, the people themselves don't govern.
Think about it. Has there ever been a society in history, anywhere, anytime, where the people as a whole are governing directly?
No. I mentioned even in ancient Athens, first of all, it was a minority that governed people who are eligible citizens and even they governed on important issues that people would show up directly, but there were lots of other issues on which you can say committees or groups were set up to make smaller types of decisions. So the people don't decide directly.
Power is delegated.
And this was, by the way, true even in ancient Athens.
Power is delegated to a few.
And the question is, what is the job of those few?
The Republican Constitution provides a law...
The Constitution itself to govern those who govern us.
So that's the job of the Constitution.
Now, there are other countries, by the way, and Great Britain being a classic example.
Hey, the American founding was produced by...
In a sense, people who came from England, they drew in some respects on the English system, but they also had important differences with the English system.
Great Britain has a common law, but they don't have a constitution.
We have a constitution, which is a super law.
And a super law means it's a law that allows laws that are made by the legislature to be struck down.
And it's the job of the court to do this.
The founders were not Democrats in the small d sense.
They were Republicans, and they set up a Republican form of government, a Republican form of government that has Democratic elements.
we have of course elections, we choose leaders through an electoral process, Later, of course, we have political parties.
But these democratic elements are mixed in with elements that, you could almost say, contradict democracy.
The founders, for example, talk about the dangers of tyranny of the majority.
Now, in Great Britain, there's no such thing as tyranny of the majority.
In fact, all the branches of government, in a way, serve the majority.
You have a legislature, which is the majority party.
The majority party nominates its own leader.
That guy becomes the prime minister.
That's Rishi Sunak now in Great Britain.
So the legislature and the executive are united, not in America.
And similarly, you have a judiciary in America that can look at laws that are made by the Congress, maybe laws even signed by the president, and say, that's unconstitutional.
Whereas, since you don't have a constitution, in Great Britain you cannot proclaim something on constitution.
There's no constitution that supplies the standard to do that.
Now, the essence of republican government is that government is based upon rights.
And what are rights?
It's kind of an odd notion.
We talk about something being right or something being wrong, and that's a moral understanding of rights.
This is right, that's wrong.
That's a moral vocabulary.
Rights in the political sense are a little different than that.
Rights are the powers, the scope, The things that you have an entitlement to do without seeking the consent of the government or anyone else.
If I have a right to do something, it means I have the ability, I have the power to do it, and nobody gets to say otherwise.
That's a very simple kind of colloquial understanding of rights.
We sometimes also, by the way, hear the phrase natural rights issues.
And natural law.
And here's the distinction between the two.
Natural rights are the powers that by nature, and by nature what the founders meant is they said, you know, you can understand this as given by God through nature, but even if you don't accept that rights come directly from God, they come from, you can say, God's creation, from the fact that we human beings are different from the animal's And because we're different from the animals, we have the powers of reflection.
We have the powers of choice.
We can choose to come together as a society.
We can choose who's going to rule us.
And yet there are certain choices that lie outside of that.
That even though we turn over certain powers to the government, for example, I'm no longer going to sort of use my gun, by and large, to assert, if you will, a right of power over others.
I'm going to give the government a monopoly on the power of force, unless, of course, My life is threatened and the government or the police are nowhere to be found.
In that case, I revert to the state of nature.
I'm able to use force to defend myself.
But by and large, I do surrender certain powers to the government because the government would mean nothing if it didn't have any kind of power at all.
I give the government even the power to tax me under certain conditions and so on.
But there are other powers, and here's where the Bill of Rights comes in.
These are powers that I never surrender to the government, and the Constitution steps in, enumerates them, and protects them from the majority, protects them from the people themselves.
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I'm continuing my discussion of the U.S. Constitution and the Republican versus the Democratic understanding of the Constitution.
I want to highlight some ways in which our Constitution has moved away from its original Republican understanding.
Understanding to now a kind of more progressive, a more left-wing view of the Constitution.
How did that happen? How did we get from here to there?
It certainly didn't happen overnight, and yet it happened, I would argue, in a relatively concentrated space of time.
So I'm going to give a mini-constitutional history, but what I really want to show, the bottom line of it all, is that from the founding all the way, even past the Civil War, to the end of the 19th century and into the early 20th century, right up to the New Deal, we had an American system that, although not the same all the way through, was nevertheless recognizably had the ingredients that the founders had put together.
And it's not till the 20th century with the progressive movement, a movement that begun with Woodrow Wilson.
Woodrow Wilson was a kind of apostle of progressivism, but that progressivism didn't come to fruition until the New Deal.
With Franklin Roosevelt, we now begin to see a perversion of the understanding of government, and you could almost say that America at this point becomes a different country.
Because the limitations that were put on the government by the founders begin to be ignored, begin to be set aside, and begin to be set aside by a kind of new Supreme Court, an FDR majority, that now goes along with all the provisions of the New Deal, even though many of them are a flagrant violation of economic rights.
Now, to tell the story, we need to realize that our rights are political rights, which are the rights of voting, our rights of participation in the government.
There are civil rights and civil liberties, and these are the rights, a lot of them specified in the Bill of Rights.
Free speech, freedom of assembly, and so on.
And then there are also economic rights, which are the rights by and large to earn money and to keep the fruits of your own labor.
And if you think about it, these rights are all equally important.
It's not as if some are more important than the other.
Hey, I want to have my free speech, but guess what?
I don't mind being a slave in the sense that every time I work, you're allowed to take everything I have to No.
To take everything that I have that I've worked for is just as much an injury to me.
It's a violation of my personality.
Why? Because my work and the fruits of my labor represent my planning.
They represent my priorities.
I've decided to do this.
I've decided to engage in these sorts of exchanges.
And why? Because I've ultimately, my hopes, my dreams, my aspirations for myself and my family are all wrapped up into this.
So to take that away, is ultimately a fundamental deprivation.
In fact, to tax it away is also a deprivation.
And you can think of a tax rate of 100% as being, in a sense, an economic definition of slavery.
So, economic rights, political rights, civil rights, these rights all kind of go together.
And it's the job of the court to protect these rights.
Now, this goes all the way back to the earliest decisions of the court, notably a decision in the early 19th century called Marbury v.
Madison. And this was the decision that signals the ability of the court to decide whether laws are constitutional or unconstitutionally.
Interestingly, if you look at the Constitution, it talks about the fact that laws can be unconstitutional.
They can go against the Constitution.
But who gets the final say over whether a law is constitutional or not?
It turns out this was an undecided question in the very early years of the Republic.
And it wasn't until Marbury v.
Madison that there was a kind of widespread acceptance, and I think a correct one, that the Supreme Court is the final arbiter of whether or not a law is constitutional. By the way, the issue wasn't fully decided, and even in the Civil War, Lincoln kind of questioned whether or not the Supreme Court decides not just for that particular case, Lincoln agreed, but for all subsequent or similar cases, whether the Supreme Court was the final word on the Constitution. In
the Civil War, there was a battle over what the Constitution meant in terms of Does it allow states a right to secede?
And quite frankly, the Constitution is a little ambiguous on this score.
The Constitution never foresaw and specified, hey listen, these are the terms on which we're asking the states to come on board.
And by the way, if any of them ever want to leave, here are the five steps that they need to take.
Or, alternatively, they can't leave.
This is a permanent pact.
Recognize that when you join this club, you're not going to be able to leave ever.
The Constitution didn't say any of this, and therefore, there was a reasonable debate.
But interestingly, both sides of the debate accepted the words And the terms of the Constitution, in fact, both sides were equally insistent that they were being truly faithful to the Constitution.
And as I say, it's difficult to proclaim one or the other side absolutely right for the simple reason that the Constitution itself is a little unclear on when you can leave.
But what I want to suggest here, and I'll pick it up in the next segment, is simply the idea that starting with the New Deal, we begin to see a massive government assault on the idea of individual economic rights.
And you have courts allowing the state to grow bigger and bigger and bigger and allow the state to invade economic rights that were previously protected by previous courts.
And now the court basically stepped aside and said, if the legislature wants it, we're going to We're going to allow it.
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The way in which our original constitution, our Republican, small r, constitution was established Distorted.
And our political system pulled out of whack, in fact, pulled away from the America that the founders created.
All of this began really in the New Deal.
But the intellectual basis for it started earlier.
Started, in fact, in the progressive era at the very beginning of the 20th century.
Began really with Woodrow Wilson.
And I want to highlight Woodrow Wilson's idea, goes all the way back to Woodrow Wilson, of a living constitution.
Basically, Woodrow Wilson argued that the founders didn't have it right after all.
And this itself is kind of a shocking idea.
I say this because no president before Woodrow Wilson had suggested that the founders didn't know what they were talking about.
As I mentioned, even during the Civil War, you had Democrats and Republicans arguing about the Constitution, but their assumption was the Founders are wise, the Founders got it right, and we, the North, or we, the South, are correctly reflecting what the Founders wanted.
But starting with Woodrow Wilson, you begin to get the Founders were wrong.
And Wilson's argument was that the founders were creatures of a different era.
They were of their own time.
They were not postulating principles for all time, but they were rather echoing the precepts of a sort of agricultural society.
And Woodrow Wilson used the example of Newtonian Mechanics, a kind of clockwork.
The founders created a clockwork.
But now we understand, says Woodrow Wilson, that we are living in a kind of organic and evolutionary society and a society that is progressive, that is moving toward higher and better things.
And higher and better is now defined, progress itself is defined, as moving away from the American founding.
So this was all quite explicitly laid out by Woodrow Wilson.
And Woodrow Wilson says we better, just as we think of organisms as evolving and living, growing, we need to think of our constitution the same way.
Our constitution lives and grows, and grows here means changes.
And changes in ways that might not have been anticipated at the very beginning.
So, we see here the basis for the progressive view The judges don't have to take the Constitution all that seriously.
They can interpret the Constitution in light of progressive ideas, changing ideas, and they can get us away from what the founders really wanted.
Now, when you say that, Woodrow Wilson did not mean that the judges can decide whatever they want.
You know what? The Constitution says X, but I prefer Y. No, Woodrow Wilson said the founders need to move In the direction of public opinion, enlightened opinion.
And if the majority wants the country to go in a different direction, away from the founding, then it's the job of the judge to sign off on that, to go along with that.
So you can see here the emergence of this sort of democratic small D jurisprudence as a challenge and a proposed replacement for the small R Republican jurisprudence.
And this begins under Woodrow Wilson, but is really brought to fruition.
It's brought into full effect only in the era of FDR.
And it was done really against the backdrop of an emergency.
And the emergency is of course the Great Depression, the economy appears to collapse, capitalism appears suddenly not to be able to deliver the goods.
And when you have crisis, you have calamity, you have pandemics, you have wars, this is the best time, and the Democrats have learned this lesson, this is the best time to try to change the rules.
Change the rules of elections, change the rules of allowable freedom, change the rules of how the Constitution is to be interpreted.
So against the backdrop of the Great Depression, FDR comes along and he begins to pressure the court.
Now, the court at that time, initially, is very much the old court.
It's a court that basically says that you have civil rights and civil liberties.
Now, in fairness, those liberties were not extended to all.
There were exceptions. There were blacks who were left out of the deal.
Again, led by the Democratic Party, the suppression of the Black vote in the South.
So there were abuses that were going on at the time.
I don't want to be blind to those.
But nevertheless, the general protection of civil liberties, civil rights, and individual rights, and economic rights was being done by the court.
The court viewed rights as the province of individuals.
And when FDR began to pass all these laws, extending the reach of the government, suddenly you have all these new federal government agencies, and they have the power to regulate and set prices.
They have the power to decide, for example, on things like minimum wage, which is a way of saying, listen, you cannot contract on your own for a job.
Your employer has to pay you a minimum of X. So courts would step in and go, wait a minute, the government doesn't have that.
Where's the power in the Constitution for the government to do this?
And the simple answer was, there is none.
The Constitution did not give the government this kind of power.
But FDR wanted it to.
And so he threatened to pack and stack the court.
And ultimately, he got his way.
He didn't get his way in packing the court.
But what happened is a court justice resigned and And there were replacements to the court.
And now we began to get the FDR court, which is to say a court that is now beholden to the Democratic Party, a court that changed its mind about individual rights, a court that changed its mind, almost moving from a small R Republican framework to now a defer to the majority framework, to a Democratic framework.
And we have been living with that We're good to go.
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I'd like to begin this concluding segment by posing a straightforward question, which is, how can we be confident that our basic liberties in this country are going to be protected?
Where does that protection really come from?
And if I stand up, not just in a liberal audience before left-wing students, but in a conservative audience, in a Republican women's meeting or a GOP Lincoln dinner and ask this question, where can we get the assurance that our rights are protected?
The normal answer is going to be, well, the Bill of Rights.
Now, the Bill of Rights is a series of rights, enumerated rights, that interestingly enough were not part of the original Constitution.
So right away we have a puzzle or mystery, which is, didn't the founders, when they made the original Constitution, care about rights?
Well, the answer is they did.
And in fact, some of the leading founders, and I mention here Hamilton and Madison, two of the most prominent of the founders, did not even think a Bill of Rights was necessary.
So how can it be that founders who care about individual rights, who care about the small-R Republican form of government, nevertheless have Omit what we today would consider our only and best protection, the Bill of Rights, our right to free speech, our right to conscience, and the founders didn't even think we needed it.
They ultimately kind of gave into it.
Jefferson wanted a Bill of Rights, and Madison figured out there's...
Basically, Madison's argument is there's nothing wrong with this, so we'll add it on.
But Madison didn't even think that they were necessary.
Madison agreed with Hamilton.
We don't really need a Bill of Rights.
And Hamilton's reasoning was this.
He goes, listen, why do we need to say that, if you think of the Bill of Rights, it begins like this, Congress shall pass no law.
Congress shall pass no law doing this.
Congress shall pass no law doing that.
And Hamilton's point is, where have we given the Congress the power to make those laws?
Why do we need to say Congress can't do this?
We never gave Congress the power to do this.
And so here we begin to see the way in which for the key founders, Hamilton and Madison, It is the structure of the Constitution itself and not the Bill of Rights that is the key way of protecting our rights.
Now, how can this be?
How can it be that a structure of organizing the government itself is a protection better than, in fact, so good that you don't even need enumerated protections?
Don't get me wrong, I'm glad we have a Bill of Rights.
I think the Supreme Court today can more easily refer to the Bill of Rights by saying, for example, that the government can't use digital platforms to censor you.
The government cannot do substitutionary censorship by working through private parties that would violate the First Amendment.
So there's a value in having the Bill of Rights, and I don't mean to discount that.
But what I'm trying to say is that for the founders, our primary protection is It's the architecture of the founding itself.
It's the way that the building is constructed.
It is the distribution of powers.
And it's not just separation of powers.
There are some other countries that have separation of powers.
And by the way, it's also worth noting that there are tyrannical countries, going back to the old Soviet Union, that have elaborate bills of rights and bills of rights that on the face of it are better than ours.
Why? Pick up a copy of the old Soviet Bill of Rights, for example, and read through it.
Yeah? Write a free speech?
It's right in there. It's not followed, but it's in there.
The right to be able to assemble?
It's in there. The right to protest and be a dissident?
It's in there. And in addition, there are all kinds of rights that our Bill of Rights doesn't even mention.
The right to food, the right to health care, the right to shelter.
So you basically have a right to pretty much everything that you want.
In the Soviet Constitution.
So, why then did Soviet citizens not enjoy those rights?
Well, for the simple reason that enumerating those rights and writing them down on a piece of paper means nothing.
The founders themselves talked about parchment guarantees.
A parchment guarantee is, I'm guaranteeing you something by saying so, by putting it into words.
But where's the translation of those words into action?
The point is, and Madison realized this, and this is the point of creating an elaborate system that we have that distributes power, not just between the legislature, the executive, the judiciary, Not just in establishing checks and balances, but also, very importantly, a distribution of powers between the federal government and the states.
This is sometimes called federalism, but it means there are lots of powers that should be exercised at the local level.
Exercised by local government, not state government, and then exercised by state government, not the federal government.
If there's one way in which our whole founding architecture has been greatly distorted, it's by the federal government usurping powers that previously belonged to state and local governments.
And think how bad that is.
It's bad because in a wide and diverse country, you want local governments to reflect the aspirations of local people.
The way things are done, for example, in rural Iowa, completely different than, say, urban Chicago.
And yet what we have with the federal government is uniformities.
So if there's one thing that we can look to philosophically, a direction we need to go in the future, it's reducing the authority of the centralized power, the federal government, and distributing that power to the states.
This is an idea, I think, for a Republican candidate to champion if they want to stand behind a Republican constitution and a Republican form of government.
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