- Tired of the toxic level of polarization in the United States?

Interested in talking with people whose perspective differs from your own in ways that stay constructive?

We invite you to join us for a year focused on creating a culture of conversation rather than division.

(upbeat music) The Padnos/Sarosik Center for Civil Discourse, Kaufman Interfaith Institute, Hauenstein Center for Presidential Studies, and WGVU Public Media are pleased to partner for, "Talking Together: Strengthening Our Communities Through Conversation," a dialogue initiative aimed at interrupting polarization and investing in the principles of civil discourse and respectful conversation.

The aim is to assist community members engaging in conversation with one another across differences in perspective, identity, and life experiences.

Today, we explore why, according to the founders of the US Constitution, American democracy depends on civil dialogues and listening to others' perspectives, perspectives you may not agree with.

Joining us are John F. Kowal, Vice President of Program Initiatives at the Brennan Center for Justice at NYU School of Law, and Wilfred U. Codrington III, professor at Brooklyn Law School and fellow at the Brennan Center for Justice.

You've co-authored the book, "The People's Constitution: 200 years, 27 Amendments, and the Promise of a More Perfect Union."

Thank you for joining us.

- (Wilfred) Thank you for having us, Patrick.

- Thanks.

It's a pleasure.

- The book is great and we're gonna get to the book.

There's somebody who I know you know, and that is Jeffrey Rosen, President and CEO of the National Constitution Center.

He explained this, "Having civil conversations is central to the discovery and spread of political truth and also to the rights and responsibilities of self-government."

I don't think it gets much clearer than that.

From your perspective and all the research that you do, that central core principle in having dialogue, you find it in so many places.

- We absolutely agree.

We wrote a book about the story of the Constitution and its evolution over 200 years.

And if you go back even to the very beginning, it was a document intended to knit together a country of very diverse people in states from Georgia up to New Hampshire that did not agree on a lot of things.

And the story of the Constitutional Convention is hammering out a lot of differences and coming up with a constitution that while it didn't please a lot of everybody, nobody thought they got everything they wanted, it was the beginning of an amazing evolution of a document that has united a fractious country.

And we have to keep relearning this lesson.

And we could talk a little bit about the different times in history where we've had to bridge differences once again.

- Yeah, John raised the Constitutional Convention and we like to think about it as the Federalists and the Anti-Federalists.

That's what came out of it.

So that was so important to have those disparate views hash out and hammer out a document that was going to shape the American experiment.

But then over time we added more voices.

And that was part of the point of amending.

Women were not at the Constitutional Convention.

Black people were not at the Constitutional Convention.

So many people were excluded from that.

And so by incorporating all these voices, we've actually made the Constitution more democratic, more inclusive, and more suited to covering a 21st century America.

- How has that gotten lost?

I mean, we've had 200 years.

How has that message gotten lost?

Where was it lost in translation and how do we rediscover that, especially in this time right now of polarization?

- Well, you know, the polarization we experienced today, as distressing as it is, it's not entirely new.

I mean, if you go back to the founding, the Federalist and Anti-Federalists often engaged in really scurrilous attacks against one another.

They did come together, you know, the period before the Civil War, the country was very split.

In the era before a progressive wave of amendments, the country was very divided geographically, the west and the south versus the east and the north.

So, I would say is it's like a fever that hits and then breaks and it hits and then breaks.

I think what's important is have a commitment to say we can't accept the country that it's divided as it is now.

- And the Founding Fathers, they've never said that this was a perfect set of laws or rules that should govern, self-governance, which is the United States.

This people have said is a living, breathing document.

Explain that to folks who believe you don't touch... - Sure, yeah.

- The US Constitution.

- At the end of the Constitutional Convention, Ben Franklin, who was the elder statesmen, stood in front of the Convention, actually he was too frail to stand, so he had somebody kind of speak for him, but he said, "Look, this is not a perfect document.

Nobody's walking away happy with it, but it's something that we can try and we can work on it."

And that's why we included Article Five, the amending provision of the Constitution, right?

So if we do find these omissions, these flaws, these technical things that just do not work for today, then we can amend it.

But also the document is a very short one.

Unlike other documents, other founding charters of other countries and even states, it's very short.

And so there are some things in there, ideas like free speech and equal protection and due process where they're kind of broad and we kind of have to use that language to shape it for the time today.

So it's living in the sense that as we live, we have to use it to mold our experiments and govern us today.

- Twenty-seven amendments.

Walk us through the values of those amendments.

It seems like there's a cycle throughout US history where we we see a number and then there's a pause and then we see them again.

What's happening in American society or culture when that takes place?

- Our book talks about four main cycles.

I mean, there are a couple of stray amendments, but almost all the amendments come in four waves.

After the adoption of the Constitution, the country was split.

There were a lot of people that were afraid of a constitution that gave too much power to a new government.

And so the adoption of the 10 Amendments of the Bill of Rights was intended to, as a gesture of unity to reassure people who had those concerns, and then we added a couple more amendments that really had to do with fixing glitches in the original document.

It was then, you know, 50 years until the next wave of amendments.

After the Civil War, the country was nearly destroyed.

So they added three crucial amendments that ended slavery, guaranteed equal citizenship for all people and purported to give black men the right to vote.

But those amendments were of often thought of as a second founding of the country.

And in a very significant reform was that for the first time it limited the power of the states and it gave the federal government more power to protect rights.

You have another 50 years and then as a progressive wave of amendments at a time of rampant corruption, inequality, the Gilded Age, if you think about that era, they added reforms that really allowed for modern government, the income tax, giving people the right to choose senators and ending a corrupt system, giving women the right to vote.

And then another, 40, 50 years and then you have the civil rights era at a time when the right to vote was important.

They added three more voting amendments as well as dealing with a unique concern of the nuclear age, which is presidential succession.

And so every one of these dealt with the concerns of the era.

And it's now been 50 years since Congress last approved a successful amendment.

So maybe we're about due.

- And let me add to this, Patrick, which is that John was talking about the clusters in which we amended the Constitution, but the flip side of that is there's these long periods of quiescence.

We are just not doing anything at least technically, but we are doing something.

We're adjusting to the amendments that we just added to the Constitution, trying to figure out what that means today and how we actually incorporate it.

We are just kind of in this battle, this contestation.

And so the things that we see against progressives and conservatives today and trying to figure out what the Constitution means, we've just had a blockbuster Supreme Court year.

That's not uncommon.

That's what happens.

So when we get these bursts of activity, new provisions of the Constitution, new text, we kinda have to figure out what that means and then we'll get to a period where we're saying, "Well, maybe that wasn't enough because we have a new set of experiences that we need to amend the Constitution to take care of now."

- It seems, though, the divisiveness stems from a lot of the culture war issues, right?

And that's where we get into these societal issues that then get into the political arena.

Is that where we are when we're looking at, you're saying potential for amendments right now, but we get into these battles?

How do we see our way through this moment if we do want to advance the Constitution through amendment.

- Well, we write about the origins of this in the book.

And that after the Equal Rights Amendment died and did not get ratified, you had progressives losing interest in amending the Constitution.

But the conservatives for the first time did get interested and they wanted to push an amendment to balance the budget, but then you really have to go to the rise of Newt Gingrich.

And he did come on a platform that called for several constitutional amendments, but he brought a style of more personal attacks, staring people down.

They had a vocabulary of words to call people sick.

And it led to a spiraling downward of evermore like egregious attacks.

You know, those amendments didn't pass.

But what you've seen is what we talk about in the book is the birth of wedge issue politics, that instead of trying to actually achieve changes that the country needs, what you're doing is pushing issues that just activate people, make them angry, make them concerned.

And now with social media, with different kinds of media, everyone's, sad to say, in a bubble where they're just getting irritated and angry all the time and it's no way to really have civil debate.

So, I really salute you for talking about the importance of trying to talk across difference.

- And a culture war is in the eye of the beholder, right?

So in history, people thought about the issue of slavery as a culture war.

People thought about not having women voting as a culture war, right?

And so it is up to us, the American people, to determine what is significant enough that we need to think about this and expand it or shrink it, but in trying it in the Constitution to govern us, right?

And so, I think the nice part of this, the part that gives me hope is that there's typically these enduring values that are driving us and we come together at some point to make sure that they manifest in these amendments.

Issues and things like democracy, things like the rule of law, things like equality, these are big American principles and they've driven the way that we've amended the Constitution at every stage.

- Is there a place where the Constitution can help to guide us to bridge those gaps, right?

To bring forth that dialogue and those conversations that we need to have?

And I guess the cornerstone would be the Founding Fathers and their view of the Constitution.

- Well, you know, Benjamin Franklin famously, after he walked out of the Constitutional Convention, was asked by a woman, do we have a monarchy or a republic?

And he said, "A republic, if you can keep it."

And then people always remember those words 'cause they're very wise.

The keeping it is the hard part.

Look, the Constitution creates a system of representative government that's messy.

You know, it's up to people to live by the values of the Constitution.

But one thing I'll say is we make the argument that it's worth putting in energy to the really hard task of amending the Constitution, because you know what?

You can't do that with 50.1% of the vote.

You need super majorities.

And so these eras of constitutional change is where remarkably, two thirds of Congress said, "Yes, we need this."

Three quarters of the state said yes.

And so that's the kind of consensus that we're lacking at the moment.

And you know, and I always really, you mentioned Jeffrey Rosen, but the National Constitution Center organized an event where they brought like libertarian conservatives and progressives to see if they could agree on amendments.

And they did agree on several amendments and they agreed, for example, that we should have term limits for Supreme Court justices.

So that gives me hope that people, if we can just lower the noise and focus on what's important, that maybe we can agree on some important things.

It's about time.

- And of course the First Amendment right, freedom of religion, expression, free speech, that is central to Americans' freedoms, that freedom of speech.

You talked about social media, you talk about people kind of camped out under their political tents.

Where does free speech belong in the conversation when it becomes so extreme?

Where should we have that balance of what deserves attention and what does not?

- Sure, yeah.

So one, it's fun to realize that actually the First Amendment would not have been the First Amendment.

There were two amendments that were proposed before that one.

So it would be amendment number three.

So we don't wanna like, sort of make it this cult that it's the first and it's the most important.

It's part of a package and part of a balance, and that's the Constitution itself.

But it's super important.

It's really important because the way that we speak and express ourselves, and particularly in the area of politics, is the way it's going to impact how we're governed.

We've never thought about the First Amendment as being absolutist, right?

It says, you shall not, Congress shall not prohibit, you know, free speech.

But we do put limitations on it.

You can't scream fire in a crowded theater, right?

You don't wanna, you don't wanna allow obscenities, right?

There's certain times and places for speech and we wanna be thoughtful about that.

And you wanna be thoughtful about people's security and safety and equality and so you wanna hold true to those things, too.

And just note, the framers could not have thought about First Amendment and the idea of speech in today.

They didn't have Twitter.

They didn't have social media.

And so we need to be really thoughtful in trying to apply what the sort of bigger vision was.

And the underlying principle there was when we're trying to apply to today's situations.

- One thing I'll add is, you know, they didn't have Twitter, but they did have pamphlets and newspapers.

And when, one of the things about writing the book is you do this deep dive into different eras of American history.

And you know, during the debate over the Constitution, I was really struck by the really intemperate and outrageous things people were saying about other people.

I mean, it's nothing new that people tore people down.

I mean it seems depressingly familiar to tell you the truth.

But it gives me hope in a way, because that they overcame that and came together and built, they built a great country on the foundation of that anger and division.

- I didn't realize the rhetoric is part of American history.

Well, because I always think of, in my place of work, I can't say and do certain things, but it sure, it certainly seems as though if you're in Congress you can say and do whatever you want.

- Yeah.

Well it's worse now for different ways in the sense that people are in a closed loop where they're only hearing misleading statements about people.

So that's problematic.

They're not hearing other things to challenge these erroneous statements and beliefs.

- Yeah, there's a scholar, Ann Franks, who wrote a book called, "The Cult of the Constitution," and she focuses on the first, a couple parts, but the First Amendment specifically and how we just kind of taken that idea and just run with it and sort of with very, very, a narrow lens, right?

Not thinking about its implications, but we do need to think about it.

We are a very large diverse people, right?

And so what you say and what you do does impact your neighbor and we need to take that into account.

So yes, we want to express ourselves and be uniquely and (indistinct) individualistic, but we also want to think about that this is a common good and we want to do things that are going to advance that collectively.

- I wanna touch on sacred values and where the Constitution falls within that theory.

So, "The concept of sacred values or protected values was developed to express the idea that certain values and moral principles are seen as absolute and non-negotiable and thus are protected from trade-offs with other values."

And that comes from the Department of Psychology at the University of Zurich.

So will give University of Zurich a shout out on that.

Should we hold the Constitution in that same realm?

- Look, I mean, many of the concepts in the Constitution are hard to state in an absolute way.

Much of constitutional interpretation is balancing different factors.

I guess I view certain values, I mean like equality, which I mean ironically wasn't in the original Constitution, it didn't even mention equality that was added in the Civil War amendments.

I would say equality is a sacred value, but I, what I worry about is that this notion could be weaponized to basically shut down any kind of understanding of like how this value is affecting other people.

You see, just in one example is, there are more cases coming in the courts that the Supreme Court is interested in around religious liberty.

And you know, and again, I believe deeply in religious liberty and if it's about, if religious liberty is, can you worship or can you dress the way your religion commands you to, that's one thing.

But what they're saying is, you know, I don't want to pay for the insurance for gay people because of my religion, then you're actually hurting other people, you know?

And so at a minimum there should be a conversation about those and so that's where religious liberty maybe has to be considered against other values.

- Yeah, you wanna think about the constitution as worthy of reverence, but not something to of a subject of idolatry, right?

It's not religion.

It's a civic document that sort of is supposed to bind us together and govern a country.

And you know what, like part of this becomes a problem because we're in a stage right now where people are saying it's impossible to amend the Constitution.

People have said that in various, various points and we've amended the Constitution, but people say it's unwise to do so because we had these founders and they were infinite wisdom.

Well, half of the men who wrote the Constitution owned slaves, right?

And there were lots of other things are problematic.

So yeah, the 13th amendment, we wanna be pretty absolute about that.

No slavery, we don't want that.

But everything else, it's really a balancing act and we have to think about it in light of the circumstances.

- And so many people say, well I have my freedoms, right?

Freedoms, they're in the Constitution, protection of fundamental rights, prohibition of deprivation of life, liberty, you know, or property by government.

We see that substantive due process in the 5th and 14th amendments.

Break some of that down with where we are and the differences that we have with others and having those rights and those protections.

- Sure.

So, the idea of substantive due process, or at least one strand of it says that we have these fundamental rights, right?

And it's a topic of conversation today because of the Dobbs decision, which reversed Roe versus Wade.

And abortion, reproductive autonomy, was considered at least for the last 50 years, one of those fundamental rights.

And so we've seen the unraveling of some of it.

Now some conservatives have always disagreed with this idea of substantive due process and these fundamental rights and some believe that it's essential and some sort of contradict themselves a little bit too.

So the due process clause is the reason why the Bill of Rights applies to the states.

Well, do conservatives wanna take away your right to bear arms in a state, but you can do so in DC?

No, that would be absurd, right?

So it is all about a balance.

We do have fundamental rights.

The Constitution is not exhaustive.

It can't possibly write down all the rights that we have and hold dear.

It is meant as a guiding document to protect principles and for us to kind of work out what those important things are.

- I would add that the framers of the Constitution, they were reluctant to create a Bill of Rights.

They didn't want to add it to the Constitution and it turned out to be a big mistake because people were worried about it.

So then they later, in a damage control move, promised to add it later.

But one of the reasons they were afraid to do it was that once you start enumerating fundamental rights, but what if I don't mention one?

Does that mean that it's not a fundamental, right?

They deeply believe there were fundamental rights that aren't mentioned in the Constitution.

They actually created a 9th Amendment to kind of make that clear.

I think that's really important in understanding what fundamental rights are and that they evolve over time.

But you mentioned property, 'cause obviously, that's an important and sacrosanct right.

But that's something where there's a fight in the courts and in the world of legal academy about how far the right to property goes.

And it really comes head to head with zoning and environmental protection and things like that.

So in other words, if I can't build my development on wetlands, shouldn't I be paid for the loss of my potential profit?

I mean, it's a theory that's intended...

It's never been, it's ahistorical.

It's a theory that's meant to basically make it a impossible to have environmental regulations.

But there's a lot of support for that.

But that's an example of where do property rights begin and end?

You know, we've always assumed there's some limit that if we need to build a highway, we may have to pay you for your property.

It's actually in the Constitution that we can take your property and pay for it.

But I guess it's a story of the Constitution that at any given time there's always some fight about the meaning on some margin about an issue that matters to people.

- And you're here for Constitution Day and part of your lecture this evening is going to be about executive power and the influences of executive power over the wider population.

Express that power and that prestige and how it influences people.

So I'll start, I think it's a rich topic we both can talk about.

So the Constitution in Article 2 sets forth the power of the executive branch.

When you really study the history of the Constitutional Convention, what you see is that they were busy fighting about other things and they actually didn't spend a lot of time really thinking through how the presidency works and other questions around it.

So, we've remarkably had to add four different amendments to the Constitution out of 27 where to clarify and fix problems and omissions in the presidency.

So they couldn't decide how to pick a president, so they basically came up with a compromise position, which was the electoral college.

But they designed it in such a weird way that the elections were going off the rails and there was a really bad election in 1800s, so they had to completely recreate the electoral college.

And then they, in the 20th century, they realize, well there's all these what ifs, like what if someone wins the electoral college and dies before they become president?

So they had to add another amendment about that.

Then they limited the terms of the president after Franklin Roosevelt.

But then the most important one in the 25th Amendment, they realized, like they never even said that if the president dies or resigns, that the vice president is president.

They never even said that clearly.

And there was always this doubt.

And that was resolved by the 25th Amendment, which fixed a lot of other issues as well.

So the other thing that you might wanna get into is just like what they imagine the presidency to be, if I don't think... - They had a range of thoughts about what the presidency could be.

They weren't even sure that the president was gonna be a one person, right?

It could have been a multi-member entity that existed in some states and other places.

So they kind of hashed out these ideas.

And the thing was, they didn't want the president to be a monarch like King George.

They wanted to get away from that.

And they had a sense that it was gonna be George Washington who was standing right in front of them the whole time as they were hashing out these details.

So in a sense they were comforted by the fact that they had this respected person in front of them who was gonna take on the role and they can kind of deal with some of the things.

And he set some traditions and some of those traditions were passed on and some of them we learned that actually weren't enough.

And so we had to think about it more.

But John mentioned the electoral college, which comes back to like how we even started the book.

We started the book in 2016 after the electoral college gave us a president who lost a popular vote.

And that was the second time it happened in two decades.

And so the idea that we had this constitution that when it's been amended and changed and interpreted have always been about making the democracy more robust and inclusive, that we still have this mechanism, we're allowing someone to lose the popular vote, yet take the helms of a massive job of being the leader of the free world, just is an anachronism.

And so, I would say that if we are talking about amendments, that's one of the first things that we'd have to deal with again.

- All right, well, the book is, "The People's Constitution: 200 Years, 27 Amendments, and The Promise of a More Perfect Union."

Wilfred Codrington III, John Kowal, thank you both so much for joining us.

- Thanks for having us, Patrick.

- Patrick, it's been a pleasure.

- And thank you for joining us.

We'll see you again soon.

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