Transcripts For CSPAN2 Lawrence Lessig They Dont Represent Us 20240713

Then to disseminate the most important ideas in america in the most nonpartisan constitutional form and we have several events that i would like to plug including on december 2 we will host a raking news town hall on what the constitution says about impeachment and we will bring together a range of legislators and scholars to discuss the history and constitutional dimensions of the impeachment process. December 5 we have the federal Judicial Center on the Fourth Amendment and privacy, historical objectives and december 26 will be a moving program, its called the girl in the picture, remembering vietnam and it will include the heroic human rights activist kim who as a child was immortalized in the napalm girl photo, remember her running down the street. She will be with mark roden, atlantic journalist from vietnam and the prophet and composer, animal looking day was written an oratorio paying tribute to him and i think it should be an extraordinary evening. Now were going to start either a special program. Were going to begin by discussing the extremely important new book by lawrence, Lawrence Lessig they dont represent us, reclaiming our democracy. Lawrence lessig is one of americas most constitutional theorists and has a new book out on how to interpret the constitution and at the same time he has published this culmination and refinement of his thoughts about constitutional reform that bring them together in a galvanizing important way. This is the first stop on his book to her and im so honored that he will be here with us at the constitution center. Join me in welcoming Lawrence Lessig. And after larry and i talk a bit about his great new book, i will bring in two very distinguished interlocutors to join us on the question of whether we need a Constitutional Convention to achieve the reforms that he and they urged and each of them is an american leader for a different reform. Howie rich is the chairman of the Organization Us term limits which works to establish and defend term limits at all levels of government and he has some very powerful ideas about term limits and then daniel epps has just written a very powerful article about how to change the composition of the Supreme Court that pete booted judge cited in the last president ial debate. He is an associate professor of law at Washington University in st. Louis and his most recent article how to save the Supreme Court cowritten with ganesh souter, and published in the yale law journal as i say has been getting widespread attention. Join me in welcoming howie rich and daniel epps. Okay, larry, im so honored youre here with us to talk about the book and when of the many striking notions you begin with was with an apology. You say youve been talking a lot about the importance of campaignfinance reform but have come to realize that just one part of a larger problem of an unrepresented america. Tell us what you mean about how america and the american constitution is unrepresented i think the important confession is that i dont feel ive been disciplined enough to talk about this in a way that could actually bring all americans into the fold. We liberals find it easy to talk about our issues in a selfrighteous and convinced way. In a way that speaks primarily and maybe exclusively to liberals so talking about the money in politics part triggers for many people a signal. Are you a liberal or not . Even though there are many great conservatives who also are concerned about money in politics. Its a dividing discourse as opposed to uniting discourse so when i wrote this book i thought iactually believe that the kind of enthusiasm you demonstrated , you said this was your congregation and you demonstrated to the congregation, when you got so excited about the idea that this is a nonpartisan effort and i think this is extremely important. The book ends with the stories of these incredible Reform Efforts led by people who have a single central rule, that politics, partisan politics is not allowed to be part of the conversation so this woman katie fahey who twentysomething put up a Facebook Post and said is anybody interested in working on gerrymandering in michigan and within a couple months and 4000 volunteers and a couple months after that had collected 400,000 signatures to get a ballot measure to end partisan gerrymandering and in that effort she had a discipline that never can you say democrat or republican, that we have to inspire people to want to be part of this movement as citizens first because we are citizens first and we all embrace that somewhere in it, theres such a deep desire that we should be able to talk about this without the hate and division which defines politics so that was the motivation to write this book and what i realized as i thought about what i was upset about when i talked about money in politics is that it is an example, one example of the way that weve allowed our Representative Democracy to become unrepresentative. Many conservatives will tell you that we have a republic. But of course by a republic the framers meant a Representative Democracy. And its kind of built into the title, the thing about our Representative Democracy is its supposed to be representative. Its supposed to allow all of us to feel like we have the samepolitical power. The fact that your white doesnt mean you have more power than your black or that you live inkansas versus texas but that weve allowed the system of our democracy to evolve. So that we on many dimensions dont have equality in our system so money in politicsis the most obvious. Members of congress, candidates for congress earn between 20 and 30 percent of the time raising money to fund their campaign. But theyre not raising money from the average person, theyre not just randomly dialing numbers on their telephone. There raising money from the tiniest fraction of the one percent so thats 150,000 americans have enormous influence relative to the rest of america. Thats the one that we liberals like to focus on what gerrymandering. Its a way of rendering us unequal in the way that we exist in representative reelection by our members of congress. That congress is divided into districts which states draw with the objection to create safe seats in their district so if youre in a safe seat republican district, you know if youre the republican representative youre not going to be beaten by a democrat and if youre a safe seat democrat you know of your representative youre not going to be beaten by a republican but youre not worried about the party from the other side, you are worried about somebody from your own party. You could be beaten by somebody in your primary but what we know about primaries is the people who win primaries are even more extreme versions of the people they are challenging so if youre a republican, what youre worried about is that an even more rightwing republican. If youre a democrat what youre worried about is an even more Leftwing Democrat which means in these districts 85 percent of congress in safe seat districts, what theyre doing is constantly focusing to their extremes. Which means the extremists have in normas influence over our congress way beyond their numbers. Way beyond what theyre entitled to if you think about making everybody representative or think about the Electoral College. We have this impression that the United States of america elects our president. Thats not true. We have delegated the election of our president to a country called swing state america. Swing state america, the 14 or so states in like pennsylvania which is close enough to go either way, is the place that selects our president. In 2016, 99 percent of Campaign Spending was in 14 states. 99 percent. Which means these are the only states that a president cares about and theres all sorts of Empirical Data to show spending and regulatory policy bends to make swing states happy. You might not feel happy but youre happier than a lot of people out there because you matter. The new jersey people, they dont matter at all soit would be like look at this administration when trump came to office, he immediately ended the offshore drilling ban. Almost overnight, florida got an exemption from that. New jersey cant even get a hearing because who cares about new jersey . New jersey was a solidly blue state. Its never going to matter to a president ial election but florida is a critical swing state but the thing about swing states is they dont represent america. Your decent citizens, i come from pennsylvania and i will i am a Williams Porter swing stators in general dont represent america. Their older, their wider, their industry is not the cutting edge industry of america so you should be represented like anybody else but you shouldnt be representedmore. This and then the way we suppress both the point is abbys altogether , and what this means is that on any number of dimensions weve built a Representative Democracy that does not represent us. Sometimes it benefits the rich, money in politics. Sometimes it benefits the extremists, gerrymandering. Sometimes it benefits the swing stators, the Electoral College. Sometimes it benefits the party in power was suppressing the vote to the party out of power whether democrats or republicans. The point is the core promise of aRepresentative Democracy that we are equally represented has been defeated in our democracy and thats the core reform weve got to find a way past. Such a powerful analysis and it is powerfully bipartisan or as you say nonpartisan. Your constitutional theory book talked a lot about translating the values of the framers in light of a new understanding and changes in society. To what degree did the framers anticipate and unRepresentative Democracy and to what degree is our current unRepresentative Democracy a violation of the hopes of the framers and maybe start with the senate which has changed over time but you argue was not what they expected the senate was a great compromise, especially for madison as you know. Who, but also wilson looked at the senate as a terrible conflict. Madison for a while said it was not even going to agree to the constitution which he had helped birth because of this insistence that there be people representation for the states and the senate. Because he thought it didnt make sense to have a Representative Democracy with a branch that was essentially unrepresentative but many people thought of that branch not as representing the people but as representing states. This was the moment in our constitutional history where the idea of mixed representative governments was familiar. To the british model where you had the crown and the lords and the commons. Each representing a different part of british society. And many people thought of our constitution in the same way, not that it was representing the aristocracy but the framers representing states and house representing the people and the president representing everybody so the senate was a compromise. But i think the challenge for us is to figure out what we understand the senate to be today because as much as they think seriously the senate as representing states and they made senators appointed by state legislators, we dont have senators appointed by state legislators anymore. There appointed by us through elections and the gap between big states and small states is humongous compared to that. Then the difference between delaware and pennsylvania was like 17 to 1 and now the difference between california and wyoming is Something Like 70 to 1 so the unrepresented as caused by the senate is massive and huge and so i in this book acknowledge that i think that representative governments in both branches without representing people, weve got a real compromise. But the challenge with the senate is that the constitution explicitly makes it on amendable that there would be two senators from every state. Two things in article 5 ofthe constitution , that are said to be on amendable. One of them was the closet of protected slave trade until 1808 and the other was the closet that requires equal representation in the senate, neither of those two things can be changed without changing article 5 so in my book and im saying is we are stuck with this but what can we do to change the way the senate works, try to get it as close to representative as we can and my own sense is if we can solve all theseother problems , this is a relatively small problem that would be remaining in this Representative Democracy. Part of this book argues that our institutions are failing because in ways the framers did not anticipate, they are failing to represent the considered and thoughtful views of the moderate majority of the American People and instead have been pulverized and made more extreme by these institutional failures but youre also critical of we the people for failing to educate ourselves about important constitutional issues and to perform the duty as you call it a citizen in a way the framers anticipate and you have all sorts of explanations for that including our fractured media landscape but tell us about how we the citizens are failing our constitutional values. The congregation of the National Constitution center probably doesnt recognize this but not everybody is as focused on these issues as you might be. And part of the reason this is such a problem is a kind of unappreciated coincidence that happened in the 20th century. So the familiar thing about the 20th century was the explosion of broadcasting and we had this period of time which people like mark pryor from princeton referred to as the period of broadcast democracy whenamerica is focused , all of us essentially the same sources every single day. Television is on the same time every day. Its the news. The news is delivered to us in amiddleoftheroad way. You cant help but be exposed to it and what youre being exposed to is essentially the same story and that period from 1950 to 1985 for us defines our conception of what american democracy is. But the second thing that happened during this period that we dont think about is this is the birth of polling. Polling captures the National Imagination with the election of fdr in 1936 or the then dominant straw Poll Technology that said landon was going to beat fdr and George Gallup said no, i can talk to 1000 people and i can tell you not only will house slander lose and lose by a lot but ill tell you by how much hes going to lose and everybody laughed at George Gallup but when roosevelt won the largest majority in any contested election in the history of president ial elections, people were convinced there was something to this technology and that gave birth to a technology where we can hear, the people were legible. We knew what they brought and those two things grew up together during broadcast democracy and we could watch the people progress on many important issues whether its civil rights which obviously is driven dramatically by television, confronting people with the reality of the horrors that are going on in the south and we all had a response to that or vietnam or the impeachment of Richard Nixon or the environment. These are all issues where we grow up and we can see us growing up because we can pull. Weve now left broadcast democracy. We in some ways have got back to the 19th century. We live in a world where media is partisan and fragmented and we all live in our little bubble. And the consequence of that is profound when we think about Critical National issues we as a nation need to addresslike impeachment. The striking thing about the impeachment of Richard Nixon is if you look at the polls and the views of republicans and democrats, republicans like nixon more the democrats but the support for nixon is almost perfectly correlated between republicans and democrats. They like him at a certain point and at exactly the same moment everybody is not liking nixon and thats because were all watching the same news and its the same story and you might have a different reaction if youre a conservative republican than if youre a liberal democrat but the facts are the facts and you begin to that the facts and nixon goes from 85 percent support among republicans, 50 percent support among republicans and thats when the Senate Republicans walked over to the white house and said you need to resign. Inthis environment thats not the reality. In this environment, we watch our shows, they watch their shows and regardless of what happens, theyre going to come out of this some of us taking i cant believe this is what happened and the other part of us thinking i cant believe anybody didnt know that this was going to happen. Regardless of what happens going to have people who dont understand , dont even understand the other side. This is the part that i asked people can you explain to me why that person disagrees with you . Its not just that we know that he disagrees, you dont even know why he disagrees and this is because we built this environment, these media environments where we live in the separateuniverses. Barack obama two months ago said watch foxnews, you live in a different reality than if you read the new york times. When you live in a democracy , theyve got to address the same issues together, what happens when we all are living in a different reality . Heres where the important connection with polling comes in. In some sense this was true for the whole of Human History except broadcast democracy. In the 19th century people also lived in their own reality. North and south lived in their own realities. Thats what led to the civil war. But the difference now is we can actually see how different we are. And we actually reinforce our views on the basis of our difference realities. So the legibility of that means that the kind of craziness of our current views is transparent to everybody. And i worry that we begin to lose confidence in the very idea of democracy the more we see just how crazy we are. Now of course youre not going to get back to the 1970s, i dont want to go back to the 1970s but i do think we need to think about how you build a democracy in a world where you know were all going tobe living in these different realities , thats just a reality so how do we get together an understanding on top of that reality that can begin to be something that represents america in a way that makes us confident and hopeful about what it can do . You talked about how we can build that america and we will talk about the particular reforms you propose and whether the Constitutional Convention is necessary but first lets talk about your provocative suggestion that we need civic juries and that properly formulated deliberation modeled on that in the Constitutional Convention itself would slow down deliberation, introduce citizens to diverse viewpoints and lead to more recent outcomes that might inform even if they didnt determine policyoutcomes. I had this weird experience of traveling to mongolia in may of 2017. And observing the very first mongolian deliberative poll about eight mongolian constitutional amendment because for bizarre reasons mongolia has a law that parliament is not allowed to consider an amendment to the constitution until they run whats called a deliberative poll. A deliberative poll is a randomrepresentative selection of the population. There are 700 mongolians in themongolian parliament , but a perfect representative picture of mongolia so just the right number of people from the city, they tore, from the rural areas have those people been on buses for two nights to come to that city. Half of them men, half of them women. Rich, poor, professional, not. Theyve gotten basically a summary that said you have to show up for jury duty and participate in this process. I went to it as a constitutional law professor with all sorts of arrogance about how theyre never going to be able to figure these issues out because its too complicated. It takes training from real professors to understand these issues. And i was blown away listening to the conversation through a translator. Over the course of a few days , as these people grappledand understood and came to an extremely sophisticated view about these questions. And that makes me take serious something which id read about and ive seen in a lot of different contexts but i began to believe in at that moment about how we can begin to construct visions of ourselves or institutions that represent us that can begin to speak in a way that we would respect like a kind of we that we would be proud of. And its kind of modeled on a jury in the sense that its a small set of us but its better than a jury because its a representative set of us. Its like a random representative selection grafted to come together and delivery after being given information andgoing through a process to understand the issue and progress on it. So what i argue in this book, i had two of my earlier books have had whole chapters arguing in favor of article 5 conventions but what i argue in this book is i still believe in an article 5 convention. I get in a lot of trouble from my liberal friends for doing that but thats my view and im going to stick to it but i think at the very least all of us should be able to agree that we should create a shadow process for an article 5 convention but lets say we have a law that said 20 states call for an article 5 convention on any subject balanced budget, term limits, then congress will convene lets say five deliberative polls on the issue. Five polls where you select 500 americans, bring them together, give them issues on both sides. We can probably holdhere. And i agree, thats why im pitching this right now to you. To your congregation. You pull their views at the beginning, pull your views at the end and what you see from the is what americans reflective in the best moments think about this particular issue. You see in some sense, when you think about it like that the republican tradition says citizens are a public office. But we are the only public officers get to the quiz. Like the president of the United States before this process, the president is not somebody who bladders the president was somebody who you ask the president a question, the president answered that question on the basis of information and getting to so far just him. Thats on lots of really Smart Insights like everybody and is reflected on it and you come to a view. If you walk up to elena kagan on the streets of washington after a question about admiralty law be perfectly within her rights as a, i dont answer quiz is about admiralty law that you have a question, get a case. To this report, give us a chance to have an oral ordinance and will reflect on it and give you argue. Even injury, if you have a jury listening to the case, you cant walk into the jury room midway through and take a poll and say what you think,is he guilty or not . The jury is a process of coming to of you and its only at the end of that process he gets to speak but we the people quiz. Youre making dinner, the telephone rings. You pick it up, somebody says what you think of nafta or should wehave foreign reactors i do not know anything about those questions. You dont have achance to reflect rid you have no staff. Your asked your view and your views are represented and then its like look stupid people are. What do you expect . Even a kagan would be stupid if you didnt get a chance to read more recoveries or have a chance to reflect the one part of this is just why we accept the indignity of we the people being represented in the most stupid and ridiculous way possible, consistently and repeatedly. Why do we insist on a process that allows us to be the best we can be because im convinced that maybe there are people who look at the problems so lets get rid of democracy, discrete technocracy or lets say elites get to rule, im totally against that. I believe in democracy but i believe in a democracy where the people have a chance to know something and reflect on it and give their view in an informed and balanced way and we could build that if we just committed. Are so profoundly that none of us can have an informed opinion even about topics were supposed to know something about unless we for the best argument on both sides on one of the greatest privileges i have in this amazing job is hosting the we the people were every week by paula liberal and conservative scholars about how constitutional issues of the week and find that i can have an informed opinion about any of these issues from these president s decision torescind the dreamers act , the constitutional to can the president global law until i heard theargument on both sides and this is my job to know about these questions , you can how can i possibly expect citizens to have an opinion and thats why im excited towork with you and with you , friend here and if you want to support the idea of citizen polling here at the constitutional center, and if we can fund it, we will do it that i want to ask you one last question and then bring in our environment. If you could have article 5 convention, what reforms would you propose to it . You end by endorsing the bill that representative pelosi introduced arguing for funding for congressional elections, restoration of the Voting Rights act, automatic voting registration. Those are unlikely to pass congress, would you put those reforms to an article 5 convention . What other reforms would you put and why you still believe in article 5 convention is advisable . I believe we got to amend our constitution and im realistic enough to know our congress is not going to propose those amendments. Theres people on my side trying to run out getting people to sign up for petitions to get congress to propose an amendment to overturn citizens united. Theres precisely 0 chance in my view that the United States senate is going to buy a two thirds majority impose an amendment to overturn citizens united,its not going to happen. Maybe they should, maybe they shouldnt, its just not going to happen so the framers gave us a way around congress. When an amendment provision was proposed it originally didnt include anything other than congress proposing amendments and george mason before the end of the convention stood up and said what if congress is the problem . It was a doll moment, of course. We need a way to amend the constitution if congress is the problem and thats who the problem is, is congress. We have a failed branch in our government and the president is the president and the courts are extraordinary compared to what the framers thought. The branch that has failed is congress so we have to find a way to fix congress. I think we should try to use it for that purpose. My amendments, its just a simple principle. It doesnt have to be terribly long but its a principle that in some sense was already there but obviously needs to resurface. Its a principle of political equality. Racial equality was an important part of the 14th, 15th amendment and it took us 100 years to deliver on. Sexual equality through the ninth amendment and maybe the 28th amendment, we will see is an important fight and those are all important qualities area income equality is important but weve at least got to be able to agree on this first equality, political equality so my amendment would do what the constitution doesnt do, give everybody a right to vote which again is not seen in our constitution and it would compel institutions to establish the principle of political equality which would write against gerrymandering, it would direct that we have congressmen who can be elected without being dependent on the tiny fraction. It would empower congress to make sure that states dont ring the system against the party that out of power but it would be an organizing principle for this ideal to in some sense be something we can all agree on. Who really stand up to say no, i deserve more power than you do. In some sense we all should be able to agree that all of us as citizens equally should have the same political power inside a Representative Democracy. Thank you for that for this inspiring call to constitutional reform. Howie rich, you are the leader of the leading organization arguing for term limits reform. If you are good and important case before the Supreme Court and you are in favor of an article 5 convention to achieve term limits. Tell us why and how you would ensure that the convention would focus on term limits and not on other issues that you might not favor. What we did in our strategy on term limits is we had a strategy in which voters would vote for a term limits amendment to their own stateconstitution. We got 23 states to do it. Tough campaign, saw the rest of it and the us Supreme Court case, our case, us term limits versus the , we lost that case 54 and us Supreme Court in 1995. Our new strategy is utilizing article 5, the second method for a convention. And term limits in my view really it would be helpful in terms of the democratic process. We have term limits on 15 state legislatures. And what weve seen is more women, competitive elections , money is more equalized. This is stuff that larry, youre interested in accomplishing. And congress is just, its unbelievable. Congress is done pd did a study on how many competitive elections were there in 2016. There were 435 house seats. 23 were competitive. That means six percent of the seats were competitive. And the incumbent wins all the rest of them. 2018, where we have a wave election, 82 seats were considered competitive by about you. 20 percent, what about the others . In 40 districts, nobody challenges theincumbent. So what you get is a Political Class and a seniority system. So where utilizing this article 5 route, that george mason suggested and the main reason that i favor term limits and the term limit i favor isa real term limit, three house term , six years and two senate terms. Its what we call adverse preselection. There are a lot of people in this room who i think would fallqualify for congress. And if you think about it, say somebody asks me to run for congress. Great area let me take a look at it. The reelection right in the us house of representatives is 95 percent. So if you are foolish enough to run for congress against an incumbent. Not much of a chance. But this particular district, we have a chance. Because the incumbent was indicted towards an open seat. He left, he retired, whatever reason. Great, i think ill run. Let me think about it some more. Lets suppose im a doctor. Im an accountant, im an engineer,im a businessperson, im an educator. If i win, they win, they go through all the scrutiny and i win, now im going to get into congress. How does it work . Theres a seniority system. Its a topdown system. Im a successful engineer or whatever i am in life. Im going to be subservient to seniority. The average Committee Chair has been in congress for 23 years so if im going to run, im not seeing me but a successful person in life wants to run, why would i run . Im going to be subservient and its going to take me two decades to get anything accomplished . Why would i do that . We call this adverse preselection because the best people on average dont run. But then, and theres this idea to put term limits on congress. And if you had three house terms, the seniority system is out the window. Its now based on merit. You can attract more people, youre going to have more competitive elections, money will be equalized. Money works like this larry, you understand this. Its Something Like incumbent raises and spends 1,000,000 and a half and the challenger 250,000 so its a 6 to 1 advantage for the incumbent and the incumbent as all the name i need to start with. Nine dollars to one dollar, so its a rigged system but it in open seats, where you dont have this disparity between the challenger and incumbent, the average 600,000 so term limits equalizes the system and the article 5 approach to me like i agree with larry, is the only way to do it area youre going to get twothirds of both houses, term limits themselves without all this pressure. Give me a break. Thank you very much for that. [applause] daniel epps, youve just written this runaway success article in terms of the attention its been getting. How to save the Supreme Court, its a summary that all of you should read the original and the yale law journal and there are two big proposals that you make and ill summarize them quickly because i want to ask you about the convention route. The first is the Supreme Court lottery. Under this reform every judge on the federal court of appeals would be appointed as an associate justice of the Supreme Court, the Supreme Court would heal here court cases on a subject of nine and each panel would be prohibited from having more than five justices nominated by a president of a single political party, no more than five republicans or democrats at a time and the second is a balanced bench and thats the proposal that mayor buttigieg has endorsed. These 10 would select an additional five justices from the Current Circuit Court judges and the 10 partisan affiliated justices would have to select an additional five justices unanimously two years in advance or for a oneyear term. Powerful, creative, not easy to get through congress obviously to put it mildly. So is it fair to say that the convention might be the surest or most probable way of achieving these reforms and what do you think of the idea of an article 5 convention to achieve the reforms thatyou advocate . When you these reforms in particular i think to be clear what we were trying to do is get out in front of a debate thats currently happening on the left which is a common if we ever get both houses of congress back, get rid of the filibuster and lets just pack the court. And that seemed unthinkable a few years ago. It seems in the realm of possibility today. Its a big if if democrats are ever in a position to retake the senate in the immediate future but theres a lot of anger about the way the Supreme Court has been turned into kind of a political football and how the court is really being treated as a partisan institution in a way that i think was less true a generation ago and i think for many of the reasons that actually larry talk about in his book which is the increasing polarization of society. We are seeing the effects a lot. We now have two universes of law. We have basically a republican version of law and a democratic version of law and people dont agree on basic fundamental precepts. We came up with these proposals because we think if you could get them through congress, they are at least plausible if somewhat adventurous argument for why they are constitutional. If we weregoing to go to an article 5 amendment process for the court , im not sure these are the only proposals we should think about you theres a lot we need to think about and id love to hear what larry thinks about this because i think that the court, theres a lot of essential problems to talk about one thing thats interesting is the way in which the court is maybe reinforcing, being a force multiplier for some of the problems larrys drawing our attention towards. And the Court Strikes down the Voting Rights act, the court could have ended partisan gerrymandering last year. It chose not to and theres ways in which the court is making some of the problems worse so i think if were going to do that we need to have a conversation about why do we have a Supreme Court . Is it a extension of partisan politics because if thats the case, i dont see a good justification for the way the court is currently structured where we have nine people and they get to decide a bunch of important stuff and who those nine people are is a little bit dependent on chance because it depends on when particular octogenarians decide to die or retire and i just dont think thats the same way to run a country. I think we need to have some kind of conversation and i think this would be a good is place to start is any about what the Supreme Court should look like and what relationship should it have, should his membership have in democratic politics. If you fix that, a lot of these other problems, we talked about the way the court plays a big role here. You lost us travelers by 5 to 4, the court could have gone a different direction andthat could have given you the outcome you wanted. The court could have stopped gerrymandering which is very easy to imagine in an alternate universe in which the court did if we had a different Supreme Court justice. Thats an important suggestion. Thats the same polarization that has affected the country may you argue the splitting the Supreme Court and that in addition to the particular proposals you make if there were convention, you would want to think more broadly about the question of representation but what im hearing in this very rich discussion friends is powerful concerns and our current institutions, congress, the courts and the presidency as well as the media are not representing a considered and thoughtful and deliberate well of we the people and that was really what the framers hoped would be reflected in the constitutional amendment process and filtered through Representative Democracy. What i want your questions are phenomenal as always and theres so many of them that im going to put a bunch of them on the table for professor Lawrence Lessig but with that framework in mind because her audiences. Terry is about how to make our institutions more representative in the sense that you describe. Let me just share with you a few of these. How can our system of government, sorry, forgive me. How has our system of government ever been representative . Speaking of Representative Democracy, why would many small states vote to amend the constitution to reduce theirinfluence. How do you keep a deliberative poll on the from being infected with all the problems of congress which after all are supposed to be representative and deliberative including money, partisanship, preset positions, etc. And then finally , professor lessig, what would you advise a fledgling democracy to do in order to encourage the representativeness that you argue for obviously we have never had a Representative Democracy inthe way that we think it should be representative. So the framers gave us a system where basically white men and Property Owners were the people who had the Political Rights and then jackson damped down the property owning part and then the 15th amendment was supposed to enable africanamerican men to participate and the 19th amendment made it so women could participate so we had an increasingly robust population. Who should be represented. So i dont look to the golden path and say lets go back there. I look to a bold and ideal that i think is at the core of our constitution and say lets get there. Lets finally get there lets try a Representative Democracy for 10 years. Lets see what we can have and what would come from it and if we could i achieve the ideal throughthe principle of representative equality , i think many of the problems that we think confront our congress right now would be easier to address so its not that the past is the example, its the ideal from the past is what i think we should push forward on. As to the small states, you gave me a list of questions and i wish i could remember them all but as the small states one, the Electoral College right now is often defended as an institution that benefits the small states. Thats just not true. The swing states are not the small states. Pennsylvania is a swing state, michigan is a swing state. Those are not small states. It happens that the population of iowa and the population of new hampshire, to swing states are small but thats completely accidental. Its just because its the purpose of those states that they are important. So one of the most important cases ever to go to the Supreme Court to challenge the system that produces this swing state america was actually brought by delaware. Delaware in 1968 brought the case to try to get the Supreme Court to end winner take all. They thought it was benefiting not everybody equally but benefiting certain states very powerfully. And i think that theres an amendment that everybody should be okay with. There should be no partisan disagreement about or at least it should be a compromise we should all agree on which should say the number of electors we have right now, so you give a certain advantage to small states but instead of winner takeall , elect the electors at a functional level. It doesnt matter if you get a vote in wyoming, its worth as much as a vote in california or texas. If you did that the whole country would be in play. Every president would want to get a vote from everywhere so we would have a president that represented everybody and people when they recognized the problem is that its not representing america, but this is an alternativethat could better represent america. The other question that i love your thoughts on is how would you prevent the citizen juries from bh being infected by the same partisanship as congress . I think the pathology of our congress is driven in a huge way by the dependence that they have on raising money. You know, its because they have to spend 30 to 70 percent of their time raising money that they begin to defend in a way that can hurt them to do the work of working together in a congress. Think about yourself, if you spent 30 to 70 percent of your time raising money and your fundraising staff told you the easiest way to convince somebody to give money is to vilify the other side. We dont throw out those republicans. We dont get those democrats out of office. Were never going to get the whole method of fundraising by vilification is the number one most effective way to raise money but the point is if you do that for three or four hours every single day, how are you going to turn around and put your arm around somebody and say lets work out a deal mark you spend all your time trashing the person in your cubby where you have a headphone on calling people across the country. Are you going to walk on the floor of congress and say joe, its wonderfulto see you , lets see how we can work on things together. We need to remove that pathological process from the core of deliberation. At the framers never imagined that the members of congress are going to sit there on the telephone, obviously , calling people to raise money. There was notanything they were thinking about and point about the pole , when you draft everybody and you compensated them enough so that theyre not troubled and losing their job or whatever and you put them in a room and you say your job is to figure out whats in the right interest of america and work it out and the reality is that the extremists will turn out to be five percent on each side or maybe 10 percent on each side and most people will not be those extremists and they wont be worrying about raising money, they dont have to raise money, they dont have to make anybody happy. You have to worry that if they dont do this or not going to get reelected or theyre going to be punished in a certain way. And for that reason i dont think we should turn government over to bodies like this but i think accountability is important and thats why i agree that the concern to make sure terms can change is an important concern so that we have accountability but i do think theres a way to structure this so that the same apology that exists inside our congress would not exist in a body like this thanks for that. Question to holly in the last word to dan. What would james madisonthink about term limits . I think he be in favor. Jefferson called term limits, he said mandatory rotation in office and heres a tip that i learned today and ive been involved in term limits all these years, theres no term limits on me. What i learned today is ben franklin, right here in pennsylvania in the first pennsylvania constitution inserted a fouryear term limit on the pennsylvania legislature. Now, there have been five constitutions altogether. They managed to get it out but ben franklin was in favor of term limits. Amazing. Dan, its been a wideranging discussion. I know its taken us beyond your particular proposals but wearing your constitutional observer at , you said if we had an article 5 convention would want to consider other proposals to reduce polarization and rethink the way we select to bring court justices. What made some of those be and do you think that they might pass . Theres two questions, one is who should be on the Supreme Court and the other is what should the Supreme Court be doing . How much power should the Supreme Court have and should the Supreme Court be exercising sort of a general veto over all sort of legislation which they do because it turns out and justices on both sides of the ideological divide are responsible, you can make a plausible constitutional argument that any form of legislation violates something in the constitution. It doesnt have to be written down. Shelby county Voting Rights act section 4 was unconstitutional because of the principle of equal sovereignty which isnt written down but you get a bunch of smart folks together and they can come up with some good arguments so i think we need to have a very serious conversation about whether we actually want a group of unelected people to have that kind of power. And whether there are any kinds of constraints you can put on that power. Right now i think a big problem is a huge amount of our debate about the court and its membership is a proxy battle on our abortion as we know that it matters a lot area it matters for a lot of other issues to and we have to figure out is that the right institution to be solving those problems, im not sure. Thanks so much for that. I think in fact larry, your book in the beginning of what i know is going to be a galvanizing tour, you should have the last word so why dont you send our audience out into the fall evening with whatever words you want to give them about why its urgently important to reform america and we have a more Representative Democracy. The striking thing i was excited about the on this panel is that obviously were all white men but theres another diversity that is on the panel of political diversity. And i think what you can hear out of this conversation is that though we have differences on substance, i think weve all come to a place where we see we need to have a serious conversation about democratic form. And so id love to see an article 5 convention that talks about term limits. Id like to see that as part of a conversation about representational integrity. Part of what youre saying is that if you dont have a system for representing which is actually at an integrity with our populace the insiders protect themselves from the and i certainly agree that we need to think about the structure of the Supreme Court. Theres so many other constitutional courts around the world that have begun to do it better than us and for very simple reasons. You can imagine fixing our court in that way but i think the most important lesson that comes from this is to resist a kind of elitism about the constitution and by that i mean im not going to name names you might be able to figure this out. I was having a conversation with a senior liberal leader as opposed to article 5 conventions. And i was pitching him about why some of his arguments were completely bogus in any way, this was a good thing that we should have and he said okay, you can kind of convinced me but this conversation happened in october 2016. He said why should we risk it . Were going to have an election, Hillary Clinton is going to be elected, shes going to take three Supreme Court justices and were going to get what we want , a reinterpretation by the Supreme Court and it was like a punch in the gut because i thought this is what constitutionalism has become. Its of all the people. Its like we should not involve the people, keep the people far from the constitution because we cant trust you guys. Wehave to have the lawyers , the elites who are figuring out what the constitution should me and iftheres any problems, we will get another set of justiceson the Supreme Court. That is the death of democracy. When we no longer feel entitled and empowered and capable of even understanding our constitution and doing something with it, then we dont deserve a constitution. So you obviously, this congregation lives in the celebration of the idea that people can understand and celebrate and teach the constitution and i am a great admirer of my friend justin what you are doing , thank you for that but you are not america. To live up to the best of america, please join me in thanking our panelists. [applause] [inaudible conversations] and that once you spend to use booktv, more television readers. Host joint s as now is notre dame professor patrick deneen. Heres his book. Its called why liberalism failed. Professor, first of all ifoo you would define liberal democracy for us in your view. Guest sure. Im sure many of the listers when his the word liberal or liberalism they will think of the left side of the political spectrum we think of as progressives. Its a political operating system of the west of the United States, britain, europe, the political philosophy that was begunic about 500 years ago that gave rise to our Constitutional Order and in