The Democratic Constitution: Recovering the True Meaning of Our Founding Charter
Jul 20, 2026 11:15
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0:03
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
0:21
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
0:56
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
1:00
what Frederick Douglas did during the
1:00
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
1:13
vision of the Constitution that is more
1:13
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
1:19
the document's uh foundational values. A
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the document's uh foundational values. A vision of the Constitution that takes
1:21
vision of the Constitution that takes
1:21
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
1:31
people to participate in that
1:31
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
4:02
constitution this nation was created in
4:02
constitution this nation was created in order to create a democracy. That is not
4:05
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
4:46
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
4:52
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
5:00
preamble which was thought to be you
5:00
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
5:01
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
5:08
versions of the constitution in much
5:08
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
5:14
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
5:31
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,
5:36
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
5:40
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
5:44
political organizing so that the people can speak and participate in politics.
5:47
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
5:51
Um, as I said, the original constitution does not itself create and we've never
5:53
does not itself create and we've never
5:53
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.
6:01
will be included in we the people.
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will be included in we the people. people clamoring for organizing around a
6:04
people clamoring for organizing around a
6:04
people clamoring for organizing around a civil war about going back to Junth,
6:07
civil war about going back to Junth,
6:07
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
6:10
right? Who is part of the sovereign we the people and so how wherever you come
6:13
the people and so how wherever you come
6:13
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
6:16
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
6:18
how inclus inclusive or how exclusive or how perfect or imperfect we are
6:21
how perfect or imperfect we are
6:21
how perfect or imperfect we are constantly aspiring to perfect our
6:23
constantly aspiring to perfect our
6:23
constantly aspiring to perfect our democracy. And I think to me it's it the
6:26
democracy. And I think to me it's it the
6:26
democracy. And I think to me it's it the the answer is so obvious that it it
6:29
the answer is so obvious that it it
6:29
the answer is so obvious that it it often goes unstated. But what are we if
6:31
often goes unstated. But what are we if
6:31
often goes unstated. But what are we if we are not a democracy in contrast to a
6:34
we are not a democracy in contrast to a
6:34
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?
6:38
in contrast to a kleptocracy? Right?
6:38
in contrast to a kleptocracy? Right? That's what we are and what we've
6:40
That's what we are and what we've
6:40
That's what we are and what we've created. And I think our entire
6:42
created. And I think our entire
6:42
created. And I think our entire constitutional history has been asking
6:44
constitutional history has been asking
6:44
constitutional history has been asking that question. Who's part of the
6:46
that question. Who's part of the
6:46
that question. Who's part of the sovereign? How do we enable our
6:48
sovereign? How do we enable our
6:48
sovereign? How do we enable our constitution to create uh a democracy
6:52
constitution to create uh a democracy
6:52
constitution to create uh a democracy that works for a citizenry of equal uh
6:56
that works for a citizenry of equal uh
6:56
that works for a citizenry of equal uh and participating citizens? So, I'll
6:58
and participating citizens? So, I'll
6:58
and participating citizens? So, I'll stop there.
7:03
So, I'm gonna pick up uh here and um
7:08
So, I'm gonna pick up uh here and um maybe go to what might be a point of
7:11
maybe go to what might be a point of
7:11
maybe go to what might be a point of doubt for some uh we have ways of
7:15
doubt for some uh we have ways of
7:15
doubt for some uh we have ways of thinking about democracy as perhaps
7:18
thinking about democracy as perhaps
7:18
thinking about democracy as perhaps different than the constitution. Um,
7:21
different than the constitution. Um,
7:21
different than the constitution. Um, when we think of democracy perhaps as
7:23
when we think of democracy perhaps as
7:23
when we think of democracy perhaps as majoritarian decisionmaking and the
7:25
majoritarian decisionmaking and the
7:25
majoritarian decisionmaking and the constitution as something different,
7:27
constitution as something different,
7:27
constitution as something different, maybe images of it in the archive or
7:29
maybe images of it in the archive or
7:29
maybe images of it in the archive or something, we get images of politics
7:32
something, we get images of politics
7:32
something, we get images of politics versus law and they seem very different,
7:34
versus law and they seem very different,
7:34
versus law and they seem very different, almost in opposition to one another. And
7:36
almost in opposition to one another. And
7:36
almost in opposition to one another. And I want to say that that way of imagining
7:39
I want to say that that way of imagining
7:39
I want to say that that way of imagining democracy
7:40
democracy
7:40
democracy is completely inadequate. It is
7:44
is completely inadequate. It is
7:44
is completely inadequate. It is conflating uh democracy with mere
7:47
conflating uh democracy with mere
7:47
conflating uh democracy with mere majoritarianism.
7:48
majoritarianism.
7:48
majoritarianism. And majoritarianism is a decision
7:51
And majoritarianism is a decision
7:51
And majoritarianism is a decision procedure. But all of our attachment to
7:53
procedure. But all of our attachment to
7:53
procedure. But all of our attachment to majority will as a way of making a way
7:56
majority will as a way of making a way
7:56
majority will as a way of making a way of living together really depends on the
7:58
of living together really depends on the
7:58
of living together really depends on the background conditions under which we do
8:01
background conditions under which we do
8:01
background conditions under which we do majoritarian decision-making. If we
8:05
majoritarian decision-making. If we
8:05
majoritarian decision-making. If we didn't [clears throat] do majoritarian
8:06
didn't [clears throat] do majoritarian
8:06
didn't [clears throat] do majoritarian decisionmaking with attention to the
8:09
decisionmaking with attention to the
8:09
decisionmaking with attention to the conditions under which we make decisions
8:12
conditions under which we make decisions
8:12
conditions under which we make decisions together, whether there's equality of
8:14
together, whether there's equality of
8:14
together, whether there's equality of participation, whether there's free
8:16
participation, whether there's free
8:16
participation, whether there's free speech and other good uh constraints on
8:19
speech and other good uh constraints on
8:19
speech and other good uh constraints on majority will, then majority
8:21
majority will, then majority
8:22
majority will, then majority participation could turn into something
8:24
participation could turn into something
8:24
participation could turn into something like domination from the standpoint of
8:27
like domination from the standpoint of
8:27
like domination from the standpoint of the individual. It could look like the
8:29
the individual. It could look like the
8:29
the individual. It could look like the Jim Crow South if we're going to say on
8:31
Jim Crow South if we're going to say on
8:31
Jim Crow South if we're going to say on Junth themes. In other words, we need to
8:34
Junth themes. In other words, we need to
8:34
Junth themes. In other words, we need to know a lot more than just whether the
8:36
know a lot more than just whether the
8:36
know a lot more than just whether the majority trumps to know whether that
8:39
majority trumps to know whether that
8:39
majority trumps to know whether that form of living together. Majority is a
8:42
form of living together. Majority is a
8:42
form of living together. Majority is a form of uh life that coordinates
8:46
form of uh life that coordinates
8:46
form of uh life that coordinates individual freedom and collective
8:48
individual freedom and collective
8:48
individual freedom and collective freedom in the way that we imagine when
8:51
freedom in the way that we imagine when
8:51
freedom in the way that we imagine when we talk about the goods of democratic
8:53
we talk about the goods of democratic
8:53
we talk about the goods of democratic life that bring together individual uh
8:57
life that bring together individual uh
8:57
life that bring together individual uh autonomy and collective autonomy or the
8:59
autonomy and collective autonomy or the
8:59
autonomy and collective autonomy or the government of the one and the all. And
9:01
government of the one and the all. And
9:01
government of the one and the all. And so the democracy principle we could
9:03
so the democracy principle we could
9:03
so the democracy principle we could think of as those forms of condition
9:06
think of as those forms of condition
9:06
think of as those forms of condition about which we're always arguing with
9:08
about which we're always arguing with
9:08
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
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