The Democratic Constitution: Recovering the True Meaning of Our Founding Charter

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Good afternoon everyone and thank you

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Good afternoon everyone and thank you for coming to this panel on the

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for coming to this panel on the

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for coming to this panel on the Democratic Constitution. Uh really

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Democratic Constitution. Uh really

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Democratic Constitution. Uh really appreciate everybody's involvement. A

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appreciate everybody's involvement. A

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appreciate everybody's involvement. A special thank you to ACS and and Lindsay

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special thank you to ACS and and Lindsay

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special thank you to ACS and and Lindsay especially for inviting us to be a part

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especially for inviting us to be a part

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especially for inviting us to be a part of this um incredible gathering of

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of this um incredible gathering of

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of this um incredible gathering of people. Um my name is Jay Swanson. I'm a

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people. Um my name is Jay Swanson. I'm a

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people. Um my name is Jay Swanson. I'm a senior fellow with the Brennan Center

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senior fellow with the Brennan Center

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senior fellow with the Brennan Center where I work on something called the

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where I work on something called the

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where I work on something called the project on the future of the

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project on the future of the

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project on the future of the Constitution. So uh now I'd like to just

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Constitution. So uh now I'd like to just

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Constitution. So uh now I'd like to just start off the substantive uh discussion

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start off the substantive uh discussion

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start off the substantive uh discussion with one observation that I hope will be

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with one observation that I hope will be

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with one observation that I hope will be uncontroversial in this room at least

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uncontroversial in this room at least

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uncontroversial in this room at least which is that the Supreme Court of the

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which is that the Supreme Court of the

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which is that the Supreme Court of the United States is wrong about what the

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United States is wrong about what the

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United States is wrong about what the Constitution means.

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Constitution means.

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Constitution means. A decision like Citizens United is as

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A decision like Citizens United is as

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A decision like Citizens United is as wrong as Dread Scott. A decision like

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wrong as Dread Scott. A decision like

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wrong as Dread Scott. A decision like Cala is as wrong as Lochner.

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Cala is as wrong as Lochner.

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Cala is as wrong as Lochner. And so the question is what do you do

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And so the question is what do you do

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And so the question is what do you do when the Supreme Court is wrong about

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when the Supreme Court is wrong about

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when the Supreme Court is wrong about the Constitution? Well, you have to do

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the Constitution? Well, you have to do

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the Constitution? Well, you have to do what Frederick Douglas did during the

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what Frederick Douglas did during the

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what Frederick Douglas did during the era of DreadScott. You have to do what

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era of DreadScott. You have to do what

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era of DreadScott. You have to do what Franklin Roosevelt did during the era of

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Franklin Roosevelt did during the era of

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Franklin Roosevelt did during the era of Lochner. And that is you articulate a

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Lochner. And that is you articulate a

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Lochner. And that is you articulate a better reading of the Constitution. A

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better reading of the Constitution. A

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better reading of the Constitution. A vision of the Constitution that is more

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vision of the Constitution that is more

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vision of the Constitution that is more honest, more accurate, more faithful to

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honest, more accurate, more faithful to

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honest, more accurate, more faithful to the document's uh foundational values. A

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the document's uh foundational values. A

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the document's uh foundational values. A vision of the Constitution that takes

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vision of the Constitution that takes

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vision of the Constitution that takes seriously its democratic commitment to

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seriously its democratic commitment to

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seriously its democratic commitment to collective self-government and to the

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collective self-government and to the

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collective self-government and to the right of every individual member of the

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right of every individual member of the

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right of every individual member of the people to participate in that

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people to participate in that

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people to participate in that self-government.

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self-government.

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self-government. That's what Frederick Douglas did during

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That's what Frederick Douglas did during

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That's what Frederick Douglas did during the era of DreadScott and it's a big

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the era of DreadScott and it's a big

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the era of DreadScott and it's a big part of the reason why today we can

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part of the reason why today we can

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part of the reason why today we can celebrate Junth. That's what Franklin

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celebrate Junth. That's what Franklin

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celebrate Junth. That's what Franklin Roosevelt did during the era of Lochner.

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Roosevelt did during the era of Lochner.

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Roosevelt did during the era of Lochner. That's what got us the New Deal. The

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That's what got us the New Deal. The

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That's what got us the New Deal. The lesson I think we take from that is that

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lesson I think we take from that is that

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lesson I think we take from that is that when we make these arguments in a

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when we make these arguments in a

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when we make these arguments in a compelling and sustained way, we can

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compelling and sustained way, we can

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compelling and sustained way, we can shift the constitutional paradigm in the

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shift the constitutional paradigm in the

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shift the constitutional paradigm in the direction of greater democracy.

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direction of greater democracy.

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direction of greater democracy. And that is what we are here to talk

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And that is what we are here to talk

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And that is what we are here to talk about. Um we have a truly phenomenal

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about. Um we have a truly phenomenal

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about. Um we have a truly phenomenal panel here to discuss some of these

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panel here to discuss some of these

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panel here to discuss some of these topics. I'm going to quickly introduce

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topics. I'm going to quickly introduce

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topics. I'm going to quickly introduce them and then uh open things up with our

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them and then uh open things up with our

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them and then uh open things up with our first question. So directly to my left

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first question. So directly to my left

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first question. So directly to my left is Reva Seagull, the Nicholas Katzenbach

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is Reva Seagull, the Nicholas Katzenbach

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is Reva Seagull, the Nicholas Katzenbach Professor of Law at Yale Law School.

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Professor of Law at Yale Law School.

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Professor of Law at Yale Law School. Next is Alati Johnson, the Ruth Bader

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Next is Alati Johnson, the Ruth Bader

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Next is Alati Johnson, the Ruth Bader Ginsburg Professor of Law at Columbia

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Ginsburg Professor of Law at Columbia

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Ginsburg Professor of Law at Columbia Law School,

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Law School,

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Law School, Rhysa Galub, the David Mary Hansen

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Rhysa Galub, the David Mary Hansen

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Rhysa Galub, the David Mary Hansen Distinguished Professor of Law at UVA

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Distinguished Professor of Law at UVA

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Distinguished Professor of Law at UVA Law, and Matt Ginsburg, the General

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Law, and Matt Ginsburg, the General

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Law, and Matt Ginsburg, the General Counsel of the AFL CIO. Uh, please join

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Counsel of the AFL CIO. Uh, please join

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Counsel of the AFL CIO. Uh, please join me in welcoming them to this panel.

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[applause]

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Uh so my first question is I hope an

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Uh so my first question is I hope an easy one. Um I open things up by talking

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easy one. Um I open things up by talking

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easy one. Um I open things up by talking about uh a democratic vision of the

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about uh a democratic vision of the

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about uh a democratic vision of the constitution. So I suppose my question

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constitution. So I suppose my question

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constitution. So I suppose my question is in your view is the best way to read

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is in your view is the best way to read

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is in your view is the best way to read the constitution as embodying a

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the constitution as embodying a

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the constitution as embodying a democracy principle. Why or why not? And

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democracy principle. Why or why not? And

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democracy principle. Why or why not? And uh maybe we can start with you.

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uh maybe we can start with you.

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uh maybe we can start with you. >> Thanks J. Can y'all hear me?

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>> Thanks J. Can y'all hear me?

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>> Thanks J. Can y'all hear me? >> Can you hear me now? Okay, great. Uh I'm

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>> Can you hear me now? Okay, great. Uh I'm

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>> Can you hear me now? Okay, great. Uh I'm sure I could have been heard without the

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sure I could have been heard without the

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sure I could have been heard without the button. Um but uh thanks for uh the

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button. Um but uh thanks for uh the

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button. Um but uh thanks for uh the introductions and for the panel and

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introductions and for the panel and

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introductions and for the panel and thank you all for being here. Um so I am

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thank you all for being here. Um so I am

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thank you all for being here. Um so I am a a legal historian. I'm a a historian

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a a legal historian. I'm a a historian

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a a legal historian. I'm a a historian by training and uh historians don't like

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by training and uh historians don't like

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by training and uh historians don't like determinacy all that much. It's pretty

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determinacy all that much. It's pretty

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determinacy all that much. It's pretty hard to say this is a true you know

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hard to say this is a true you know

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hard to say this is a true you know thing. And yet uh I feel very good

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thing. And yet uh I feel very good

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thing. And yet uh I feel very good answering your question to say you know

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answering your question to say you know

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answering your question to say you know the core foundational principle of our

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the core foundational principle of our

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the core foundational principle of our constitution is democracy. Um I teach

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constitution is democracy. Um I teach

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constitution is democracy. Um I teach constitutional law to first year law

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constitutional law to first year law

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constitutional law to first year law students and that is where we begin

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students and that is where we begin

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students and that is where we begin right we the people the radical

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right we the people the radical

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right we the people the radical innovation of the US constitution was

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innovation of the US constitution was

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innovation of the US constitution was the creation of popular sovereignty.

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the creation of popular sovereignty.

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the creation of popular sovereignty. We're about to commemorate the 250th uh

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We're about to commemorate the 250th uh

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We're about to commemorate the 250th uh anniversary of the declaration that was

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anniversary of the declaration that was

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anniversary of the declaration that was about the consent of the governed. that

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about the consent of the governed. that

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about the consent of the governed. that was about the consent of the government

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was about the consent of the government

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was about the consent of the government having been violated and this

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having been violated and this

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having been violated and this constitution this nation was created in

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constitution this nation was created in

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constitution this nation was created in order to create a democracy. That is not

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order to create a democracy. That is not

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order to create a democracy. That is not to say it was a perfect democracy. That

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to say it was a perfect democracy. That

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to say it was a perfect democracy. That is not to say it was as democratic as it

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is not to say it was as democratic as it

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is not to say it was as democratic as it could have been. There are all kinds of

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could have been. There are all kinds of

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could have been. There are all kinds of ways in which it's representative. It's

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ways in which it's representative. It's

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ways in which it's representative. It's not perfect. Uh at the founding uh the

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not perfect. Uh at the founding uh the

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not perfect. Uh at the founding uh the you know senate wasn't popularly

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you know senate wasn't popularly

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you know senate wasn't popularly elected. We have the electoral college.

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elected. We have the electoral college.

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elected. We have the electoral college. There are all kinds of ways both

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There are all kinds of ways both

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There are all kinds of ways both structurally and then of course who was

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structurally and then of course who was

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structurally and then of course who was included and excluded from we the

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included and excluded from we the

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included and excluded from we the people. Lots of us up here would not

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people. Lots of us up here would not

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people. Lots of us up here would not have been thought to be part of the

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have been thought to be part of the

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have been thought to be part of the sovereign uh at the time. There were

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sovereign uh at the time. There were

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sovereign uh at the time. There were lots of debates then and now that we can

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lots of debates then and now that we can

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lots of debates then and now that we can have about how democratic about what

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have about how democratic about what

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have about how democratic about what aspects are democratic and what are not.

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aspects are democratic and what are not.

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aspects are democratic and what are not. Um but to me it is an uncontroversial

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Um but to me it is an uncontroversial

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Um but to me it is an uncontroversial thing to say wherever you land on any of

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thing to say wherever you land on any of

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thing to say wherever you land on any of those debates. The purpose of the

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those debates. The purpose of the

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those debates. The purpose of the constitution was to create a democracy.

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constitution was to create a democracy.

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constitution was to create a democracy. The text of the constitution in the

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The text of the constitution in the

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The text of the constitution in the preamble which was thought to be you

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preamble which was thought to be you

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preamble which was thought to be you know the most important part. We don't

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know the most important part. We don't

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know the most important part. We don't think of it that way today but the

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think of it that way today but the

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think of it that way today but the preamble was uh printed in early

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preamble was uh printed in early

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preamble was uh printed in early versions of the constitution in much

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versions of the constitution in much

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versions of the constitution in much larger font than the rest of the

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larger font than the rest of the

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larger font than the rest of the constitution. And it was thought to be

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constitution. And it was thought to be

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constitution. And it was thought to be the core of what the constitution was

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the core of what the constitution was

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the core of what the constitution was about. And when it starts we the people,

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about. And when it starts we the people,

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about. And when it starts we the people, it says we the people. We are the

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it says we the people. We are the

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it says we the people. We are the sovereign. We are constituting a

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sovereign. We are constituting a

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sovereign. We are constituting a political community. An imperfect

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political community. An imperfect

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political community. An imperfect exclusionary political community at the

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exclusionary political community at the

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exclusionary political community at the time. But an aspiration to a greater,

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time. But an aspiration to a greater,

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time. But an aspiration to a greater, more inclusive political community. The

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more inclusive political community. The

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more inclusive political community. The rest of the constitution. I won't go

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rest of the constitution. I won't go

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rest of the constitution. I won't go through every clause. I'm going to stop

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through every clause. I'm going to stop

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through every clause. I'm going to stop in a minute. But the the constitution,

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in a minute. But the the constitution,

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in a minute. But the the constitution, right, it guarantees a republican form

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right, it guarantees a republican form

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right, it guarantees a republican form of government to the states. It creates

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of government to the states. It creates

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of government to the states. It creates the first amendment for free speech and

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the first amendment for free speech and

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the first amendment for free speech and political organizing so that the people

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political organizing so that the people

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political organizing so that the people can speak and participate in politics.

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can speak and participate in politics.

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can speak and participate in politics. Um, as I said, the original constitution

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Um, as I said, the original constitution

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Um, as I said, the original constitution does not itself create and we've never

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does not itself create and we've never

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does not itself create and we've never had a perfect democracy, but the rest of

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had a perfect democracy, but the rest of

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had a perfect democracy, but the rest of our history has been a struggle over who

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our history has been a struggle over who

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our history has been a struggle over who will be included in we the people.

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will be included in we the people.

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will be included in we the people. people clamoring for organizing around a

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people clamoring for organizing around a

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people clamoring for organizing around a civil war about going back to Junth,

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civil war about going back to Junth,

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civil war about going back to Junth, right? Who is part of the sovereign we

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right? Who is part of the sovereign we

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right? Who is part of the sovereign we the people and so how wherever you come

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the people and so how wherever you come

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the people and so how wherever you come down on the deficits or the benefits or

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down on the deficits or the benefits or

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down on the deficits or the benefits or how inclus inclusive or how exclusive or

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how inclus inclusive or how exclusive or

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how inclus inclusive or how exclusive or how perfect or imperfect we are

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how perfect or imperfect we are

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how perfect or imperfect we are constantly aspiring to perfect our

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constantly aspiring to perfect our

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constantly aspiring to perfect our democracy. And I think to me it's it the

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democracy. And I think to me it's it the

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democracy. And I think to me it's it the the answer is so obvious that it it

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the answer is so obvious that it it

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the answer is so obvious that it it often goes unstated. But what are we if

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often goes unstated. But what are we if

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often goes unstated. But what are we if we are not a democracy in contrast to a

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we are not a democracy in contrast to a

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we are not a democracy in contrast to a monarchy, in contrast to an oligarchy,

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monarchy, in contrast to an oligarchy,

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monarchy, in contrast to an oligarchy, in contrast to a kleptocracy? Right?

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in contrast to a kleptocracy? Right?

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in contrast to a kleptocracy? Right? That's what we are and what we've

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That's what we are and what we've

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That's what we are and what we've created. And I think our entire

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created. And I think our entire

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created. And I think our entire constitutional history has been asking

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constitutional history has been asking

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constitutional history has been asking that question. Who's part of the

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that question. Who's part of the

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that question. Who's part of the sovereign? How do we enable our

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sovereign? How do we enable our

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sovereign? How do we enable our constitution to create uh a democracy

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constitution to create uh a democracy

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constitution to create uh a democracy that works for a citizenry of equal uh

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that works for a citizenry of equal uh

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that works for a citizenry of equal uh and participating citizens? So, I'll

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and participating citizens? So, I'll

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and participating citizens? So, I'll stop there.

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So, I'm gonna pick up uh here and um

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So, I'm gonna pick up uh here and um maybe go to what might be a point of

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maybe go to what might be a point of

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maybe go to what might be a point of doubt for some uh we have ways of

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doubt for some uh we have ways of

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doubt for some uh we have ways of thinking about democracy as perhaps

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thinking about democracy as perhaps

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thinking about democracy as perhaps different than the constitution. Um,

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different than the constitution. Um,

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different than the constitution. Um, when we think of democracy perhaps as

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when we think of democracy perhaps as

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when we think of democracy perhaps as majoritarian decisionmaking and the

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majoritarian decisionmaking and the

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majoritarian decisionmaking and the constitution as something different,

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constitution as something different,

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constitution as something different, maybe images of it in the archive or

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maybe images of it in the archive or

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maybe images of it in the archive or something, we get images of politics

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something, we get images of politics

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something, we get images of politics versus law and they seem very different,

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versus law and they seem very different,

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versus law and they seem very different, almost in opposition to one another. And

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almost in opposition to one another. And

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almost in opposition to one another. And I want to say that that way of imagining

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I want to say that that way of imagining

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I want to say that that way of imagining democracy

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democracy

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democracy is completely inadequate. It is

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is completely inadequate. It is

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is completely inadequate. It is conflating uh democracy with mere

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conflating uh democracy with mere

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conflating uh democracy with mere majoritarianism.

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majoritarianism.

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majoritarianism. And majoritarianism is a decision

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And majoritarianism is a decision

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And majoritarianism is a decision procedure. But all of our attachment to

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procedure. But all of our attachment to

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procedure. But all of our attachment to majority will as a way of making a way

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majority will as a way of making a way

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majority will as a way of making a way of living together really depends on the

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of living together really depends on the

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of living together really depends on the background conditions under which we do

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background conditions under which we do

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background conditions under which we do majoritarian decision-making. If we

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majoritarian decision-making. If we

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majoritarian decision-making. If we didn't [clears throat] do majoritarian

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didn't [clears throat] do majoritarian

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didn't [clears throat] do majoritarian decisionmaking with attention to the

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decisionmaking with attention to the

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decisionmaking with attention to the conditions under which we make decisions

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conditions under which we make decisions

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conditions under which we make decisions together, whether there's equality of

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together, whether there's equality of

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together, whether there's equality of participation, whether there's free

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participation, whether there's free

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participation, whether there's free speech and other good uh constraints on

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speech and other good uh constraints on

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speech and other good uh constraints on majority will, then majority

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majority will, then majority

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majority will, then majority participation could turn into something

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participation could turn into something

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participation could turn into something like domination from the standpoint of

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like domination from the standpoint of

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like domination from the standpoint of the individual. It could look like the

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the individual. It could look like the

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the individual. It could look like the Jim Crow South if we're going to say on

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Jim Crow South if we're going to say on

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Jim Crow South if we're going to say on Junth themes. In other words, we need to

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Junth themes. In other words, we need to

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Junth themes. In other words, we need to know a lot more than just whether the

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know a lot more than just whether the

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know a lot more than just whether the majority trumps to know whether that

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majority trumps to know whether that

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majority trumps to know whether that form of living together. Majority is a

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form of living together. Majority is a

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form of living together. Majority is a form of uh life that coordinates

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form of uh life that coordinates

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form of uh life that coordinates individual freedom and collective

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individual freedom and collective

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individual freedom and collective freedom in the way that we imagine when

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freedom in the way that we imagine when

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freedom in the way that we imagine when we talk about the goods of democratic

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we talk about the goods of democratic

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we talk about the goods of democratic life that bring together individual uh

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life that bring together individual uh

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life that bring together individual uh autonomy and collective autonomy or the

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autonomy and collective autonomy or the

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autonomy and collective autonomy or the government of the one and the all. And

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government of the one and the all. And

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government of the one and the all. And so the democracy principle we could

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so the democracy principle we could

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so the democracy principle we could think of as those forms of condition

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think of as those forms of condition

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think of as those forms of condition about which we're always arguing with

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about which we're always arguing with

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about which we're always arguing with one another that make the coordination

9:11

one another that make the coordination

9:11

one another that make the coordination of the individual and the collective.

9:13

of the individual and the collective.

9:13

of the individual and the collective. It's an argument that goes on forever

9:14

It's an argument that goes on forever

9:14

It's an argument that goes on forever and ever and ever. Um I want to say that

9:18

and ever and ever. Um I want to say that

9:18

and ever and ever. Um I want to say that I'll just put two little cautisals on

9:20

I'll just put two little cautisals on

9:20

I'll just put two little cautisals on this that those conditions not only do

9:23

this that those conditions not only do

9:23

this that those conditions not only do we only always debate them but they've

9:25

we only always debate them but they've

9:25

we only always debate them but they've emerged in time. We didn't start at the

9:28

emerged in time. We didn't start at the

9:28

emerged in time. We didn't start at the beginning uh as you know like just say

9:31

beginning uh as you know like just say

9:31

beginning uh as you know like just say with the fixation principle it's already

9:33

with the fixation principle it's already

9:33

with the fixation principle it's already always there if we just get back to the

9:35

always there if we just get back to the

9:36

always there if we just get back to the origins point to the contrary the

9:38

origins point to the contrary the

9:38

origins point to the contrary the democracy principle has been perfected

9:40

democracy principle has been perfected

9:40

democracy principle has been perfected and experience we've been learning and

9:43

and experience we've been learning and

9:43

and experience we've been learning and fighting with one another about how to

9:45

fighting with one another about how to

9:45

fighting with one another about how to make this experiment and self-government

9:47

make this experiment and self-government

9:47

make this experiment and self-government a better one since the founding and

9:49

a better one since the founding and

9:49

a better one since the founding and everything we admire about the

9:51

everything we admire about the

9:51

everything we admire about the institution of democratic

9:52

institution of democratic

9:52

institution of democratic self-government today has come from that

9:55

self-government today has come from that

9:55

self-government today has come from that process of learning with a lot of

9:57

process of learning with a lot of

9:57

process of learning with a lot of backlash and backsliding in between. I

10:00

backlash and backsliding in between. I

10:00

backlash and backsliding in between. I won't say more about that. Okay. Um, so

10:02

won't say more about that. Okay. Um, so

10:02

won't say more about that. Okay. Um, so that's point number one. And my second

10:04

that's point number one. And my second

10:04

that's point number one. And my second cautisole here is that most of that

10:07

cautisole here is that most of that

10:07

cautisole here is that most of that learning has not only been over time,

10:10

learning has not only been over time,

10:10

learning has not only been over time, but it's been bottom up with the people

10:13

but it's been bottom up with the people

10:13

but it's been bottom up with the people teaching in the governors. It's been

10:14

teaching in the governors. It's been

10:14

teaching in the governors. It's been outside the court, even outside the

10:16

outside the court, even outside the

10:16

outside the court, even outside the Congress. It's been the resistors, the

10:19

Congress. It's been the resistors, the

10:19

Congress. It's been the resistors, the excluded, engaged in all kinds of acts

10:22

excluded, engaged in all kinds of acts

10:22

excluded, engaged in all kinds of acts of speak out, teaching, teach out,

10:25

of speak out, teaching, teach out,

10:25

of speak out, teaching, teach out, lawbreaking, conscientious attempts to

10:28

lawbreaking, conscientious attempts to

The Democratic Constitution: Recovering the True Meaning of Our Founding Charter

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