Transcripts For CSPAN3 Separation Of Powers Civil Rights 20

Include jesse hollands, reporter for the Associated Press and author of marvels the black panther. I do not know if we will have questions about that today. [laughter] dr. Berger where the Vice President and Founding Editor of and a professor of law at Georgetown University law center and executive director of the center on conventional studies at georgetown law. She is chief Legal Counsel for Vice President biden and the legal staff for the Senate Judiciary committee. Thank you. A pleasure to be with you. Thank you for being here. We would like to get started right away by giving an opportunity for one of our panelists to speak to a question that has not come up yet the original purpose, if you will, of government long before we thought of government as making policy. People looked to government for the protection of their rights, and you have written about this. Tell us more about what is meant by that, the original purpose of government. Thank you for letting me be a part of this event and holding this event. I appreciate it. As an alumnus of american university, it is great to see my Old Institution taking up vital public questions the way you put your question is useful to start in because the question is, what is the separation of powers . If force us to think about what his government for . And the answer to that question would very quickly get to policy. When we fight to control the government, when we fight to win the next election, we are fighting to advance a certain Public Policy vision. When you look at the history of Political Development in the field of american Political Development over the past quarter century or so, i think it has grappled with this question in a powerful way. The original understanding of this question, what is the purpose of government had a lot more to do with the core protection of rights than with the idea of policy. The idea of government existing to advance policy, which again, is so natural to us we do not think about it as an open question, would not have been natural to americas thinking about government before at least the middle of the 19th century where, before that, the core question about the national government, would have had a lot more to do with the core protection of rights. To see that helps us understand what it is the framers are saying when they talk about this question of separation of powers, so that one of the omo famous assertions of the purpose of the separation of powers is madisonsts in federalist 47. He says the accumulation of all powers legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny. The separation of powers is absolutely essential for the protection of freedom because the combination of powers is tyranny. That is really an assertion of a purpose of separation of powers thats all about the protection of rights. It launched a set of arguments that really involved the question whosse rights, who counts . A lot of our arguments about rights have been forms of the argument, who counts . Our system is set up that their argument very often has been a debate between the branches of our government. Ron yes, the question of who counts, and the question of whose rights . In some sense, can we not look at the constitution, the separation of powers, as a set guarantees for those who have been counted . Were going to turn back to that in a few moments but on the broad theoretical level, i also wanted to ask victoria about the issue of, this has come up in the first panel, the parliamentary system versus our system, our separated power system. Who take a beating in a lot of comparative government classes because of the president ial power system and all of that. What has been the best argument for our system as opposed to the parliamentary system . Victoria i think its a combinationof two things. [poor audio] our systems have been so stable. [inaudible] the written constitution 17 years and one of the stormy features of our government one of the extraordinary features of our government the length. [inaudible] but ask yourself, our constitution that is so dur able . And one of the things i consider to be a unique feature because they are a president ial system, but they are similar to ours, it would be a mixture on a structure that is created for stability. Put another way, it is hard to get anything done in congress. You got, the senate, the house, the president. And then its the states. They have been suing the president up and down, east and west. That is very hard to get something done in the system. That leads back to the point you all mentioned. What happens when it is super hard to get anything done . In fact, if we do not have superstrong parties and we dont. And we dont. Those superstrong parties over time show they can be, depending on the social underpinnings, quite vulnerable to party takeover. And that is one of the questions for today which is whether we should [inaudible] given our partisan politics of today. Again, just to sum up, the complflict that was mentioned to the first panel, leaves a lot of space for freedom. Ron in the theme of our panel is the struggle for equal rights, not just the protection of rights that were already recognized in existence but also writes for the people who had been denied. So, we have movements and we have had movements. The movements in the 20th century experienced a great deal of success. What role do the separation of powers place in that . Jesse thank you for having me here today. Im point to disagree on one point because when it comes to civil rights having the government not being able to move doesnt make you freer. As we saw through the Civil Rights Movement, going back to after the civil war, if we di dnt have a separation of powers not of gotten anything done because it helps and also hinders. President grant was ready to pass, had congress pass, a Civil Rights Movement in 1875. Congress and the executive branch were ready to move but the Supreme Court stepped in and negated it. You keep going down through time and you see one branch ready to move forward when the others arent. You see president truman desegregating the military. Something that would have never happened in the congress. You see the Supreme Court ready to move fordward with brown. Something that also wouldve never happened if you leave it up to the executive and the legislative branches. So, al lot of the investments we have had an equal rights movements whether it is gay marriage or womens rights or whether it is equal pay, its not been all three branches ready to move forward at the same time. It has been one leading and the others following. So, i think with a lot of the equal rights movements that we have seen in the last few months, parts of our history, if you had to wait for all three branches to be ready to make any Movement Together at the same time, they would not have happened. Victoria i dont disagree with that. One of the problems with stability which i did not mention i was talking about free speech and religion, the two most obvious evils of our constitution are slavery, which the founders refused to name but they created the conditions for civil war and women could not speak in public at the time. They are invisible in the constitution. Its not surprising that a very stable system will solidify deep inequalitys. It is required and enormous amount of effort, deaths and women chaining themselves to the white house in the Wilson Administration to fight back. I do think sometimes, as you mentioned, that that conflict, which is mentioned on the first panel, there is some admiration with her system find it is if you had a party dominated that was antiwoman or antirace you are not going to see much mobility. Where youre mentioning that the president , trimming can go out and then congress who had success, maybe there will be some people in congress who will say, i can do that. This dialogue can be helpful but it is really slow. Super slow. Ron just stress, to add on to that. It is very important to see the space is space for change, too. The fact that we can have these debates is arguments about who is in charge makes it possible for us to have these within the space of our politics. You look at lincolns statesmanship after dred scott. You look at his statements, it is our thing about dred scott. He doesnt have to say we have to reject our constitution because it allows for slavery. He says the court is not the l astastlast word on separation. Is the court the only branch who gets to define the meaning of the constitution . And i think we can see that in a lot of the kinds of social change that we have seen throughout American History. Very often, the argument is about who is in charge, who gets to decide this . Ron does that mean youre debating which of the branches is prime, which one has the power . Does that follow from what you just said . Our system is designed so the answer to that is none. So, th conflict goes on. Eat different times in different ways people on different sides of conflict can take the side of the institutions and have the argument that way. Sometimes that is not a good thing. You can see, for example, in the now 40 odd year debate weve had about abortion, it has become an argument about the Supreme Court. We are seeing that this week on capitol hill. And a lot get sublimated into that. Were arguing about abortion. And everybodys pretending to argue about the role of the Supreme Court. There are ways in which this can distort our colleges especially when one of our institutions oversteps its boundaries. The fact that the answer to who is in charge is unresolved in the constitution is the reason we can keep bargaining about who gets to decide the fate of the country. Ron is that ultimately creative or is that ultimately dysfunctional . Jesse one of the things that has helped our republic last so long is that the answer changes, because at one point you will have a strong executive and a weaker legislative. And at one point you will have a strong legislative and an Even Stronger judiciary, which is where we are at now, where we have a National Legislature which doesnt seem to get much done. So, the word is now, this is why the Supreme Court is so important because it doesnt seem the executive and the legislature can make a decision. Ron when you say strong, is that the same thing as saying responsive . Jesse that is a good question. I think the answer to that is yes, simple because if you dont have, someone has to eventually make a decision. And right now it seems like we are waiting, were allowing the Supreme Court to have the final word on a lot of issues when the law, the constitution can still be changed by the legislature and a vote by the people. We are at the point where we are pretty much in agreement that its very difficult to change the constitution. With the means the Supreme Court will have the last word, will be the response of branch on a lot of issues. In the past, the constitution could just be changed. Or the constitution can be changed by the Supreme Court via interpretation but by no one else. Victoria well, im sort of partial to the idea and ive seen Congress Actually act on constitutional questions. Ive seen the generals act on the first gulf war. I do believe that congress and the presidency can act. Which the founders could not possibly have imagined because they had no executive literally in the article of confederation, there was none. I happen to be in a law school where everybody does the Supreme Court. They all think the Supreme Court is the center of the universe. I will tell them it is the least dangerous branch. They follow the election returns pretty well up there. But i think the people have inadvertently b raised my colleagues view that the court is the center of the universe and that it actually protects why we are having such difficulty with respect to confirmations, because, if the people believe the Supreme Court is the ultimate arbiter, which was not the design in my view, the founders knew that, and the First Congress attempted to liquidate what they called legislative constructions of the constitution towith respect to removal powers. Over hisotory, all of the departments have decided constitutional questions and sometimes those decisions have been more or less lasting. This court is in some ways more aggressive because it has become originalist and there is an originalist vision. We could go back into that. But i do think it is a problem. If we think of the Supreme Court that the Supreme Court runs the american government. Just to put in that little. We do have elected branches. If we push them, they get to do stuff. If we do not just tell them we hate government, we tell them, please do this. They are far more responsive. Ron there is an argument to be made that the current president was elected by his emphasis in the last three weeks of the campaign on his power to a point at least one appoint at least one and personally several members of the sprint corpo members of the spring court. Do you think that means that the voters have endorsed this idea . This flies in the face of everything that we normally say. Victoria since the warren court, there is a sense on behalf of the country and liberals in particular thinking that the court is the home of all notions of equal rights. I would just say, and i hope the panel would agree with me, the 1964 Civil Rights Act did a lot more for people than brown versus education, in terms of getting people jobs especially women although we were added a joke to kill the bill. Congress can do a number of things. It requires an enormous amount of political energy. As an agent of and allows you to move when one department does not agree with the other. A source of friction but it is also because you it is stable you do not get all three to agree as my copanelist was indicating. Do we think the Supreme Court should run the country . Frankly, i dont think so. I think what youll see in the future because the court will shift. The next nominee, four votes is the key, not five. That determines the agenda of the court. To take cases that will head in a certain political direction, and that means that youre going to see a major change. It might not be with respect to abortion. I think that has been something of a ruse politically but it will be a much more probusiness court. It will be promajoritarian rights, religious rights. Vis a vis minority area right. Other president s have packed the court. Grant, roosevelt tried to pack the court. I do think it is unfortunate part about politics when we spend more time on the Supreme Court and we care more about the Supreme Court than actually voting. Ron and we have candidates running this fall who are saying openly that one of the platforms they are running on is expanding the Supreme Court to 11 members. That is actually an issue for in some of the races in the senate and house. Jesse, you are one of the very few people who i spent who cover the Supreme Court, the congas, and the white house. They are a small club, what strikes you about having covered all those institutions about this competition about the supremacy that always seems to be the goal, but it isnt necessarily the each france wants to have the power. Sometimes they want one of the other the each branch wants to have the power. Jesse one of the things you have to deal with as a journalist and you have to deal with the theory of how government should work and the reality of how government does work. And one of the things you see is that the reality of how the president , the congress, and the Supreme Court function together is always changing. Right now, once again, right now the executive and the legislative branches focus onthe Judicial Branch because they think that is the way they can make their decisions permanent. As opposed to something that can be changed by future legislatures and future president s. This is why we saw so much talk about President Trump coming in and changing the executive orders of president obama. And this is why we hear so much talk about getting a filibuster proof majority in the senate because they know once you get something done in congress, it is going to be very hard for the next congress to change but we now assume that once something is done by the Supreme Court it is permanent. Which is why there is such a battle in both the legislature and the executive about who gets to sit on the Supreme Court. We dont fitghght as much about who sits in the legislature as we do over who sits in the judiciary, because the reality is that the legislature only every few decades or so gets to a point where it can move quickly. You have filibuster proof majoritys in the senate and eno ugh votes in the house to be able to do something without the other party being able to stop you. Its an ebb and flow between each branch. For the last two decades, it has been both the executive and legislative branch has focused on the Judicial Branch because that is the way they think they can make something more permanent, because once again, it is very unlikely that we will see a Constitutional Convention that will be able to change the actual work that the Associated Press<\/a> and author of marvels the black panther. I do not know if we will have questions about that today. [laughter] dr. Berger where the Vice President<\/a> and Founding Editor<\/a> of and a professor of law at Georgetown University<\/a> law center and executive director of the center on conventional studies at georgetown law. She is chief Legal Counsel<\/a> for Vice President<\/a> biden and the legal staff for the Senate Judiciary<\/a> committee. Thank you. A pleasure to be with you. Thank you for being here. We would like to get started right away by giving an opportunity for one of our panelists to speak to a question that has not come up yet the original purpose, if you will, of government long before we thought of government as making policy. People looked to government for the protection of their rights, and you have written about this. Tell us more about what is meant by that, the original purpose of government. Thank you for letting me be a part of this event and holding this event. I appreciate it. As an alumnus of american university, it is great to see my Old Institution<\/a> taking up vital public questions the way you put your question is useful to start in because the question is, what is the separation of powers . If force us to think about what his government for . And the answer to that question would very quickly get to policy. When we fight to control the government, when we fight to win the next election, we are fighting to advance a certain Public Policy<\/a> vision. When you look at the history of Political Development<\/a> in the field of american Political Development<\/a> over the past quarter century or so, i think it has grappled with this question in a powerful way. The original understanding of this question, what is the purpose of government had a lot more to do with the core protection of rights than with the idea of policy. The idea of government existing to advance policy, which again, is so natural to us we do not think about it as an open question, would not have been natural to americas thinking about government before at least the middle of the 19th century where, before that, the core question about the national government, would have had a lot more to do with the core protection of rights. To see that helps us understand what it is the framers are saying when they talk about this question of separation of powers, so that one of the omo famous assertions of the purpose of the separation of powers is madisonsts in federalist 47. He says the accumulation of all powers legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny. The separation of powers is absolutely essential for the protection of freedom because the combination of powers is tyranny. That is really an assertion of a purpose of separation of powers thats all about the protection of rights. It launched a set of arguments that really involved the question whosse rights, who counts . A lot of our arguments about rights have been forms of the argument, who counts . Our system is set up that their argument very often has been a debate between the branches of our government. Ron yes, the question of who counts, and the question of whose rights . In some sense, can we not look at the constitution, the separation of powers, as a set guarantees for those who have been counted . Were going to turn back to that in a few moments but on the broad theoretical level, i also wanted to ask victoria about the issue of, this has come up in the first panel, the parliamentary system versus our system, our separated power system. Who take a beating in a lot of comparative government classes because of the president ial power system and all of that. What has been the best argument for our system as opposed to the parliamentary system . Victoria i think its a combinationof two things. [poor audio] our systems have been so stable. [inaudible] the written constitution 17 years and one of the stormy features of our government one of the extraordinary features of our government the length. [inaudible] but ask yourself, our constitution that is so dur able . And one of the things i consider to be a unique feature because they are a president ial system, but they are similar to ours, it would be a mixture on a structure that is created for stability. Put another way, it is hard to get anything done in congress. You got, the senate, the house, the president. And then its the states. They have been suing the president up and down, east and west. That is very hard to get something done in the system. That leads back to the point you all mentioned. What happens when it is super hard to get anything done . In fact, if we do not have superstrong parties and we dont. And we dont. Those superstrong parties over time show they can be, depending on the social underpinnings, quite vulnerable to party takeover. And that is one of the questions for today which is whether we should [inaudible] given our partisan politics of today. Again, just to sum up, the complflict that was mentioned to the first panel, leaves a lot of space for freedom. Ron in the theme of our panel is the struggle for equal rights, not just the protection of rights that were already recognized in existence but also writes for the people who had been denied. So, we have movements and we have had movements. The movements in the 20th century experienced a great deal of success. What role do the separation of powers place in that . Jesse thank you for having me here today. Im point to disagree on one point because when it comes to civil rights having the government not being able to move doesnt make you freer. As we saw through the Civil Rights Movement<\/a>, going back to after the civil war, if we di dnt have a separation of powers not of gotten anything done because it helps and also hinders. President grant was ready to pass, had congress pass, a Civil Rights Movement<\/a> in 1875. Congress and the executive branch were ready to move but the Supreme Court<\/a> stepped in and negated it. You keep going down through time and you see one branch ready to move forward when the others arent. You see president truman desegregating the military. Something that would have never happened in the congress. You see the Supreme Court<\/a> ready to move fordward with brown. Something that also wouldve never happened if you leave it up to the executive and the legislative branches. So, al lot of the investments we have had an equal rights movements whether it is gay marriage or womens rights or whether it is equal pay, its not been all three branches ready to move forward at the same time. It has been one leading and the others following. So, i think with a lot of the equal rights movements that we have seen in the last few months, parts of our history, if you had to wait for all three branches to be ready to make any Movement Together<\/a> at the same time, they would not have happened. Victoria i dont disagree with that. One of the problems with stability which i did not mention i was talking about free speech and religion, the two most obvious evils of our constitution are slavery, which the founders refused to name but they created the conditions for civil war and women could not speak in public at the time. They are invisible in the constitution. Its not surprising that a very stable system will solidify deep inequalitys. It is required and enormous amount of effort, deaths and women chaining themselves to the white house in the Wilson Administration<\/a> to fight back. I do think sometimes, as you mentioned, that that conflict, which is mentioned on the first panel, there is some admiration with her system find it is if you had a party dominated that was antiwoman or antirace you are not going to see much mobility. Where youre mentioning that the president , trimming can go out and then congress who had success, maybe there will be some people in congress who will say, i can do that. This dialogue can be helpful but it is really slow. Super slow. Ron just stress, to add on to that. It is very important to see the space is space for change, too. The fact that we can have these debates is arguments about who is in charge makes it possible for us to have these within the space of our politics. You look at lincolns statesmanship after dred scott. You look at his statements, it is our thing about dred scott. He doesnt have to say we have to reject our constitution because it allows for slavery. He says the court is not the l astastlast word on separation. Is the court the only branch who gets to define the meaning of the constitution . And i think we can see that in a lot of the kinds of social change that we have seen throughout American History<\/a>. Very often, the argument is about who is in charge, who gets to decide this . Ron does that mean youre debating which of the branches is prime, which one has the power . Does that follow from what you just said . Our system is designed so the answer to that is none. So, th conflict goes on. Eat different times in different ways people on different sides of conflict can take the side of the institutions and have the argument that way. Sometimes that is not a good thing. You can see, for example, in the now 40 odd year debate weve had about abortion, it has become an argument about the Supreme Court<\/a>. We are seeing that this week on capitol hill. And a lot get sublimated into that. Were arguing about abortion. And everybodys pretending to argue about the role of the Supreme Court<\/a>. There are ways in which this can distort our colleges especially when one of our institutions oversteps its boundaries. The fact that the answer to who is in charge is unresolved in the constitution is the reason we can keep bargaining about who gets to decide the fate of the country. Ron is that ultimately creative or is that ultimately dysfunctional . Jesse one of the things that has helped our republic last so long is that the answer changes, because at one point you will have a strong executive and a weaker legislative. And at one point you will have a strong legislative and an Even Stronger<\/a> judiciary, which is where we are at now, where we have a National Legislature<\/a> which doesnt seem to get much done. So, the word is now, this is why the Supreme Court<\/a> is so important because it doesnt seem the executive and the legislature can make a decision. Ron when you say strong, is that the same thing as saying responsive . Jesse that is a good question. I think the answer to that is yes, simple because if you dont have, someone has to eventually make a decision. And right now it seems like we are waiting, were allowing the Supreme Court<\/a> to have the final word on a lot of issues when the law, the constitution can still be changed by the legislature and a vote by the people. We are at the point where we are pretty much in agreement that its very difficult to change the constitution. With the means the Supreme Court<\/a> will have the last word, will be the response of branch on a lot of issues. In the past, the constitution could just be changed. Or the constitution can be changed by the Supreme Court<\/a> via interpretation but by no one else. Victoria well, im sort of partial to the idea and ive seen Congress Actually<\/a> act on constitutional questions. Ive seen the generals act on the first gulf war. I do believe that congress and the presidency can act. Which the founders could not possibly have imagined because they had no executive literally in the article of confederation, there was none. I happen to be in a law school where everybody does the Supreme Court<\/a>. They all think the Supreme Court<\/a> is the center of the universe. I will tell them it is the least dangerous branch. They follow the election returns pretty well up there. But i think the people have inadvertently b raised my colleagues view that the court is the center of the universe and that it actually protects why we are having such difficulty with respect to confirmations, because, if the people believe the Supreme Court<\/a> is the ultimate arbiter, which was not the design in my view, the founders knew that, and the First Congress<\/a> attempted to liquidate what they called legislative constructions of the constitution towith respect to removal powers. Over hisotory, all of the departments have decided constitutional questions and sometimes those decisions have been more or less lasting. This court is in some ways more aggressive because it has become originalist and there is an originalist vision. We could go back into that. But i do think it is a problem. If we think of the Supreme Court<\/a> that the Supreme Court<\/a> runs the american government. Just to put in that little. We do have elected branches. If we push them, they get to do stuff. If we do not just tell them we hate government, we tell them, please do this. They are far more responsive. Ron there is an argument to be made that the current president was elected by his emphasis in the last three weeks of the campaign on his power to a point at least one appoint at least one and personally several members of the sprint corpo members of the spring court. Do you think that means that the voters have endorsed this idea . This flies in the face of everything that we normally say. Victoria since the warren court, there is a sense on behalf of the country and liberals in particular thinking that the court is the home of all notions of equal rights. I would just say, and i hope the panel would agree with me, the 1964 Civil Rights Act<\/a> did a lot more for people than brown versus education, in terms of getting people jobs especially women although we were added a joke to kill the bill. Congress can do a number of things. It requires an enormous amount of political energy. As an agent of and allows you to move when one department does not agree with the other. A source of friction but it is also because you it is stable you do not get all three to agree as my copanelist was indicating. Do we think the Supreme Court<\/a> should run the country . Frankly, i dont think so. I think what youll see in the future because the court will shift. The next nominee, four votes is the key, not five. That determines the agenda of the court. To take cases that will head in a certain political direction, and that means that youre going to see a major change. It might not be with respect to abortion. I think that has been something of a ruse politically but it will be a much more probusiness court. It will be promajoritarian rights, religious rights. Vis a vis minority area right. Other president s have packed the court. Grant, roosevelt tried to pack the court. I do think it is unfortunate part about politics when we spend more time on the Supreme Court<\/a> and we care more about the Supreme Court<\/a> than actually voting. Ron and we have candidates running this fall who are saying openly that one of the platforms they are running on is expanding the Supreme Court<\/a> to 11 members. That is actually an issue for in some of the races in the senate and house. Jesse, you are one of the very few people who i spent who cover the Supreme Court<\/a>, the congas, and the white house. They are a small club, what strikes you about having covered all those institutions about this competition about the supremacy that always seems to be the goal, but it isnt necessarily the each france wants to have the power. Sometimes they want one of the other the each branch wants to have the power. Jesse one of the things you have to deal with as a journalist and you have to deal with the theory of how government should work and the reality of how government does work. And one of the things you see is that the reality of how the president , the congress, and the Supreme Court<\/a> function together is always changing. Right now, once again, right now the executive and the legislative branches focus onthe Judicial Branch<\/a> because they think that is the way they can make their decisions permanent. As opposed to something that can be changed by future legislatures and future president s. This is why we saw so much talk about President Trump<\/a> coming in and changing the executive orders of president obama. And this is why we hear so much talk about getting a filibuster proof majority in the senate because they know once you get something done in congress, it is going to be very hard for the next congress to change but we now assume that once something is done by the Supreme Court<\/a> it is permanent. Which is why there is such a battle in both the legislature and the executive about who gets to sit on the Supreme Court<\/a>. We dont fitghght as much about who sits in the legislature as we do over who sits in the judiciary, because the reality is that the legislature only every few decades or so gets to a point where it can move quickly. You have filibuster proof majoritys in the senate and eno ugh votes in the house to be able to do something without the other party being able to stop you. Its an ebb and flow between each branch. For the last two decades, it has been both the executive and legislative branch has focused on the Judicial Branch<\/a> because that is the way they think they can make something more permanent, because once again, it is very unlikely that we will see a Constitutional Convention<\/a> that will be able to change the actual work that the Judicial Branch<\/a> is supposed to be using to make its system. Ron i dont think very Many Political<\/a> scientist are your into have another Constitutional Convention<\/a>. Everyone would like to attend, everyone would like to cover it. Jesse oh, it would be fun to ron . You think covering the Trump Administration<\/a> is fun. Ron wed have to live with the consequences but, yes, you have written that congress is a branch that has the powe not only to resolver a question to extend rights to provide equal rights but also the part of the separated powers that actually has the ability to heal divisions, to do something that actually has a healing effect as opposed to what we are seeing come from some Supreme Court<\/a> decisions. It doesnt feel that way now, dont get me wrong. The core fact of this moment in our constitutional system, the generative fact that creates Everything Else<\/a> is a weakness of the congress. It would not have surprised the framers of the constitution that the court would try to seize power or the president would try to seize power. What is surprising is that congress is willing to renege power. Not just willing but eager. And once the other braces to make the hard choices and have only easy choices that you can run on for reelection. We see this in vague legislation that leaves it up to the courts. We see it in congress willing ly giving power to the i worked in the bush white house. We constantly found ourselves confronting members of congress who were asking the administration to do things that were plainly congresss job to do. That happens in every administration of every party of every congress. The fact that congress is so derelict about using its power is the reason what the other branches seem like they are going to excess is the reason why it seems like we have president ial overreach and judicial overreach. And its an especially tragic fact for the reason you mention, because i do think that congress is the institution that sets defined accommodations in a divided country. Its true that courts can resolve disputes, thats their job. But in order to have a dispute result before a court, the parties have to approach the court and say to that court the other party is in some way in rational or making an argument that does not hold together or violating the law. In congress what happens issue have a dispute among parties, among factions, that is taken up in an Institution Designed<\/a> to achieve accommodations so that we can resolve our disputes in ways that could be more enduring, because everybody get something and because you win arguments by persuading people not by persuading a third party that the other guy is crazy, which is more or less what you have to do in court, but persuading the second party that they have something to gain by working with you. That is how democracy can work in ways that endure. And why we should want more of our differences to to be resolved in congress and fewer of our differences result by the courts, even when those are result, even when we are happy with the outcome, it would be better to be reached by a democratic accommodation than by a decisive result for the other side as simply a law. Ron you worked on the hill for the Senate Judiciary<\/a> committee in the late 1980s. At the time i doubt very many people thought it was an era about which people would look act to with nostalgia. Has congress deteriorated as a place for people can find accommodation, and is it in that sense failing its prime duty in the separation of powers because of that . Victoria yes. [laughter] i think hes right. Compromise is like the 1964 Civil Rights Act<\/a>, had 67 votes. Have been extraordinarily enduring. No one is going to go back and undo that achievement. The Social Security<\/a> act. But look at what happens. If people think it is finished and the Supreme Court<\/a>, how many cases are going to come up on abortion . Comedy cases of they decided since roe . It does not actually get finished. To get to your question, congress is institutionally disadvantage. It has 435 people, 535 people. So, its a collective action problem. You have got to get all of those people to agree. I can write a Supreme Court<\/a> brief in a week. Can you get a law passed . No, it took four years. That takes a lot of work. And it takes people to actually compromise. Why do i think its degenerated . I came up here around early 2000 and i talked to people in the senate, and they said the senate had changed. Its norms had changed and that people were refusing to work together. So, for example, when i was there i was working for a democrat but i was loaned to republicans as an expert. That was part of the culture. But it became much more divided. And one potential, you know, thought question for the panel is what partisan gerrymandering has encourage this. What i heard from folks on the hill is that there were senators elected to fight against the senate, to run for president and also to not work with the other side. Because they thought that party was going to be, to propel them to greater advantage. So, one fear i have with the separation of powers is that it actually entrenches not only inequality, which it has, but in a partisan gerrymandering system were there is no middle left, you are, you are going to see it entrenched lack of action from congress. Because you need to get to 60 on all legislation, not Supreme Court<\/a> nominations are any nomination, but still on legislation. That means you have got to cross party lines. Shows why there are two women senators holding key to this nomination at the cups,sp, those votes are really important. If no one is willing to compromise you are not going to get to 60. And the question is how much partisan, this divide, where there is no middle, has contributed to the dysfunction of congress. I im curious. Jesse let me jump in and just say, it seems like that we are laying a blood of the blame at the feet of congress. But we laying a lot of the blame at the feet of congress. We also have to look at the executive and Judicial Branch<\/a>. The steps that have taken out of their lanes. Theyve also contributed to the idea that the politics of the country have changed. When you have a decision by the Supreme Court<\/a>, bush v. Gore, right or wrong, which looked to america like a political decision, that it Judicial Branch<\/a> should not have gotten involved in. And you have an executive branch who seems willing to make military moves and the power of war is supposed to be at the hands of congress. So, its not just that congress has abdicated its role, it is that the other two branches in some areas have moved into what shouldve been congresss role and congress did not say anything when it happened because maybe, honestly, it was needed at that time or maybe it was the correct political move by congress, but the other two branches have also moved in ways that have caused the shift in how the government is supposed to work. Victoria if you do not go up to get an observation of military force, you do not even as congress to do it, how do expect kindness to act on its own . I think theyve gone into these lanes. One of the things i find very disturbing about the court now and also, some of the original, the whole idea of the unitary executive that the president has all poiwerwer. The quote from Justice Scalia<\/a> in morrison versus olson, this is very dangerous. Because if you really think the president , and the court is there to support the president and all you have is contempt for congress. We hate congress and we call commerce but we loved it when we say democracy. If you only think the president has power in the courts, youre asking for something that doesnt look like a separation of powers. You are asking for an authoritarian version of government. And both the executive, in the theory of the unitary executive well, someone told them it was in the constitution. Its not, in my view. But also, the judiciary has shown and normans content. Enormous contempt. They couldve fixed one word in the law. It said created within a state. It could event for a it could have been for a state. The chief sessa justise sai, the congress will have to fix it. And, by the way, here is a cartoon about congress. Ron well go to questions in just a moment. I just wanted to give everybody a chance before we do go to questions to speak to the question of what issues of equal rights will be a challenge to separation of powers Going Forward<\/a> . We have talked about the classic issues. What issues are going to be with us Going Forward<\/a> . I do think that ultimately let me say first up i think ultimately, congress dereliction is the reason why the branches are made possible. All three are supposed to be sufficiently hungry for power. That part of the problem were facing in our system, the question is not really about the separation of powers, but in the executive branch, the president is responsible for everything he has done personally. Part of the failure of this administration is it seems to be on the one hand in administration and on the other hand a president , and they are not always doing the same thing. This concept of the unitary executive understood that way. To your question, i think one place to look for novel challenges to the separation of powers is going to be in some of the religious freedom challenges that come up in the wake of the samesex marriage decision that came out of the court a couple of years ago. I think we see those being followed up by problems of the exercise of religious freedom that demands some action from congress, which is not happening, like the religious freedom registration act, which passed by very bipartisan broad bipartisan support in the 1990s and today would not passed with bipartisan support. It is a problem i think we can result true with the but instead will be resolved in the court, and i think it will present some extremely complicated problems for all three branches in the coming years. We are forced to think about separation of powers. Jesse digital privacy. That is something we will be struggling for, frankly, the next millennium, especially in a world of social media where information can travel around the world in microseconds, a world where received genealogical Companies Selling<\/a> dna that has been submitted for ancestral purposes, in a world where we have Insurance Companies<\/a> making decisions about medical coverage based on someones dna, i think we are going to see those types of problems starting to bubble up to the federal level and decisions that are going to have to be made by the executive legislature and the judiciary to find a way that the new flow of information and how it affects us at a genetic level be resolved and be used in a way or use or not used in a way that everyone can be satisfied with from both the business and the personal level. Ron very well. Victoria . Victoria i agree with both of those things, but i think we will see shortly in some statutory cases is whether the 1964 Civil Rights Act<\/a> will cover transgender folks who are discriminated against, and if it will cover Sexual Orientation<\/a>. It is not a constitutional case, but it has constitutional implications in the sense that the reading now the statute by some courts, including the second circuit, is to include Sexual Orientation<\/a> dissemination, even though congress has not been able to pass it. White house has passed it. We will see that on the court. Ron i would like to invite those of you who would like to join the conversation by asking a question to come to one of these two microphones. Let me throw out a quick thought with respect to immigration. Will immigration at the rights of people in the country without documents or even people who are in the country with documents, who are totally legal immigrants will their right to the system be a challenge of the separation of powers . Victoria guess. Yes. Yuval it is another instance of the who counts question, and we are already seeing a change under this administration that a lot of these questions very quickly get to the courts, and there is no doubt it will be. But not to harp congress, especially being here in the capital, but the reason this has happened this way is congress has not been able to think of this issue for 15 years of trying. It is a failure of the legislative branch to do its work at address the circumstances circumstances in america have changed that have created the need for them twostep and in ways that are unlikely to be enduring and are unsatisfying. Ron in the news industry, we call it a negative turf war. This is a big and important story. We simply do not have the resources. We will start over here. Thank you first for being here. The first panelist said the separation of power was the basis of our constitution and the foundation of how federalism works in the United States<\/a>. My question is do you believe that such a system of separation of powers could be a fight to ge ar up to reach what churchill describes as the United States<\/a> of europe. Ron just remembering that churchill said that during [laughs] ron would you like to speak to that, yuval . Yuval there is a tradition in europe that exists on the model, and part of the reason exists is their tradition allows for a little more, but not by any means lower level of separation of powers of government. I think it is not likely that ultimately europe will be able to move forward by trying something that is not rooted in its own traditional. It is not rooted in a traditional democracy. Some of the failures of the you are lessons to apply to a paneuropean democracy, if you will. I am not sure that a supranational project is feasible, but it will be rooted in democracy, with long traditions and rich oncees. Which is the result leaves to an action and congress. Do you foresee that as something we will need to get through or more of a permanent change we will have to do with Going Forward<\/a> . Jesse i hesitate to make predictions in politics given the last few decades in American History<\/a>, but it is really hard to see a major change in partisan politics happening anytime soon. Usually the biggest changes we see in politics, ron moore, and absent that, i do not see politicians saying partisanship is ineffective to get their goal achieved in america anymore. Once again, one of the things i learned as a journalist over the years in politics is never Say Something<\/a> is not going to happen, but just looking at the state of politics in america right now, it seems very unlikely that partisanship is going anywhere anytime soon. Victoria i agree with that, but i also think there are some signs that people now understand that this is an issue of very great importance. Eric holder is working on trying to get people engaged in efforts to have independent commissions to redistrict. There are plenty of ways you can run the computer programs that is less like something that is whitford vs. Gill, the case that they refused to hear during the people rise up and ask for referendum initiatives at the beginning of the 20th century. They really asked for a redistricting commission. They can get it. Yuval the ways institutional change and help on that front, it is not all driven by gerrymandering, and the fact that the senate is as partisan as the house, i think it is driven by some very the courses in our culture and also driven by the ways in which communication has changed and the way in which we think about how politicians approach the public. A lot of members of congress understand themselves as playing a role in a partisan ecosystem that is broader than congress, and ac congress is particularly useful platform for getting a spiral cable news, talk radio, and they are satisfied when that is what congress provides them with. To get back to a sense is to compel accommodations among factions of different views that would require institutional changes. Those are imaginable. The missing ingredient are just members who want them. That is not a small challenge. I do think it can change parties, coalitions change over time, and we definitely have had ebbs and flows of partisanship, but it will require decisive change by the public and by politicians. We are not in a place where it will be transformed. Jesse let me add i was actually talking with political reporters about this a few weeks ago around senator mccains funeral, when we were talking about how different policies would have been if senator mccain, when he ran for president , actually chosen Joe Lieberman<\/a> as a running mate, as a statement of bipartisanship, as a statement for how government should work. It did not happen, but can you imagine someone running for president saying i want someone who is not a member of my political already to stand with me . That would be a completely different political system, and that is the closest we have come to that when john mccain was actually seriously considering making Joe Lieberman<\/a> his running mate. Once again, it did not happen, but imagine how different the political system would be if you had two people, two different parties on the same ticket running for the executive branch. Ron and john kerry wanted john mccain to be his Vice President<\/a> on one level not the actually tried to make that happen. But he had no idea back in 2004. So many members coming from governmentorships and other positions. We has to think we identified at various branches of government are overstepping and endorsing the Supreme Court<\/a> to empower more than independent, so speaking as realists, where did we meet in the middle . Is not in a Constitutional Convention<\/a>, then where will it roll out, and where will change actually happen . Ron notice how everyone is leaping to answer that. [laughter] yuval i think that is the right question, and the answer will have to do with the culture of the congress. To empower congress, congress has a lot of power. It has a lot of power to do all of the things were complaining about. A lot of the problem is that congress has chosen not to use that power and has chosen to allow the other branches to step in. A lot of members of Congress Want<\/a> to do that, and then they step back and cannot wait to get on the floor of the house was and find a camera and complain about washington. They prefer that as a way of doing politics to actually taking control and saying this is our responsibility. We are insiders, outsiders. A change in that culture is what is necessary. That is just a way of rephrasing your question, because how to change the culture i mean, at some level, it will take a level of public dissatisfaction that leaves members saying this cannot be what we do. You cannot change the budget crisis. Congress could reassert some power in foreign policy. But what is lacking is well, and that its very hard to change. Victoria i actually, you know, i am still a believer in the notion of the people of this country when they stand up, they will be heard. Madison believed congress would be a legislative court next because of vortex because of the dependency on the voters. The house elected every two years, the senate even closer because of the state political machinery, and they remain independent. We think may want to be reelected, but that is actually how they are accountable. They have a job here. They cannot just tweet. They have to show up, i have got to work, and they cannot just demand institutional reform. It has to be concrete. There are ways within the house and the senate to change things. Right now, rules, we have seen them change with respect to judicial nomination. I never thought i would happen when i was there in the early 1990s. So things can change if there is a will, but people have to ask for institutional change. Ron and the struggle for equal rights, our subtheme, that has come from the people, has it not . None of the Movement Began<\/a> in washington, none of the movements began on the hill. Sir . My question is in judicial decisions, can the Supreme Court<\/a> make congress and forth policy . Victoria as a political scientist or a journalist one thing, ask a lawyer, and they will tell you the other. You take the politically salient cases, the bush versus gore, campaign finance, and all of that, take the things people read about it, and put it over here, they were the site you are not above the constitution. Most of the cases, in my view, or about statute. No one cares about those, really. Maybe the who are living them obviously care about them, but they can we care about bankruptcy, tax, they typically care about bankruptcy, tax. Michael bailey has shown his work that yes, the highly salient thing, they follow the election returns. That is why did you statutory case the way he did on the health care. So yes, i think elections matter a lot. It is concentrated heavily on doctors, time, and unfortunately money. Ron yuval . Yuval i agree with that. I think it is quite right. It is in some ways true of the other branches, too. We see them often after workers, in ways that are controversial. It is true of the courts. Most of what happens in the course is what is supposed to happen on the court. The question of what happens in those marginal cases is where we disagree about whether the court really has the authority to say this or that above the deepest, most divisive questions we confront in our society, but that is not what they do most of the time. Jesse a lot of what we, as the American People<\/a> know what we see in the media. Because as citizens, we do not take it upon ourselves to go to the courts, actually watch the cases ourselves, and we do not take it upon ourselves to go to the subcommittee to hear the discussion actually happening. Some of what we see is the fault of the media and what we present as well. We present things that are most controversial. We present the things that are most exciting. We present the things that we think our audience wants to read and listen and watch, but that is just the presentation. In a world where everyone have a computer in their pocket, there is nothing stopping the regular citizens from finding out exactly what the branches of government are doing. It is just we do not take the time or we may not have the time in our lives to actually do this, so a lot of what we see and what we argue about is a fraction about what the government actually does, because we allow the media to present to us only the things that the media thinks that we should see, whether right or. Wrong. Ron indeed. My question is a popular theme today. It is another one of partisanship. Seeking about the election in 2010, where many people were discontent with the Democratic Party<\/a> super majority, so there was a big election, and republicans controlled the house in 2010, the senate i think in 2012 ron 2014. Thank you. So now theyre talking about a blue wave. What is the way we can channel this competition, instead of just being there and in a statement game of pingpong, as i like to call it, and make it more to the root issue of human rights, the government is here to protect your rights and not just oh, one more point for my team. Ron thank you. I will give each panelist a chance to wrap up here, because this will be our farewell as a panel. Jesse, you sounded ready. Jesse i was going to say we have to make sure we define for us what we talk about for greater rights. Over the last couple of years, we have discovered that corporations have rights. That is not something we would have thought about 50 years ago. So yes, with the partnership has also brought different rights that some people may or may not like. We talked about the inclusion of gay rights, which some people may or may not like. We are now talking about transgender and transsexual rights. I mean, rights do ebb and flow with partisanship and with politics, and we have to make sure that we understand that as well, that partisanship and politics will bring greater rights that we may agree with, we may not agree with. We may agree with more generic price. We may agree with more privacy rights online. But we also have to understand that all of these things come about as a result of politics, and politics is just the art of partisanship. So while we decry it, sometimes, we have to understand that sometimes it does bring about change in this country. Ron yuval . Yuval i think the question is very important, and this image of politics as pingpong is very important to understand what has gone wrong in politics in the last several decades. What partisanship has meant for our institution is that power has gone back and forth. It is useful to understand that has not always been the norm in american political life. Congress was controlled by the Democratic Party<\/a> for the better part of four years, before the mid1990s, and a lot of the rules and structures that still now are the institutional structure of the congress remain at a time when it was reasonable to think there was a Majority Party<\/a> and a minority ready, and the presidency may have changed hands the presidency was heavily republican during that period but our budget process, for example, which was established in 1994, is very much a uni party process. It understood that some part of the Minority Party<\/a> where corporate with a large part of the Majority Party<\/a> to advance the budget process. And that just does not happen. It has not happened in a long time in this much more partisan environment. Someone was trying to chronicle this and explain it, and they basically says each party and any given time think that could win control of the next election and operates accordingly, which means it always thinks our job is to win the next election, when control. We do not have to compromise, because we will win everything. We will get our way we will win everything. We will get our way. This Situation Requires<\/a> different rules. Ingress need to think about how the institution should operate given the fact of partisanship. It simply has not done that, so it is working within rules that are not a good fit for the reality of congress now, and it has been the reality of congress now for 20 years or more, it is time for institutional reform that takes account of political realities. Victoria i do not disagree with either of those comments, but when you talk about corporations amatory care and majorityian rights our rights have changed dramatically over our history. We think of them differently than we did in the 19th century, and that may be part of the system. It makes for more divisive cranes claims about rights. The second piece is institutional, as i mentioned earlier. I agree entirely that there are a number of issues that need institutional reform. One of the problems is if the senate is becoming more like the house, that is a serious problem, because in fact it engages in shorttermism, used in Corporate Law<\/a> to say we only do this to get the stock market up. We will do these things, but we will not actually invest in the corporation over the longterm. That is exactly what i see happening here, this shorttermism, so the house is a twoyear window, which is very short. The senate usually has a longer window, so they can push forward things. And you have seen other constitutional reforms that can work. That is what i hope is the key, and that is what i hope to inspire citizens to think about institutional change as well as shortterm politics of a particular issue. Thank you awful being here. [applause] thank you all for being here. You are watching American History<\/a> tv all weekend every weekend on cspan3. To join the conversation, like us on facebook. Have you watched lectures in history . Every saturday at 8 p. M. Eastern go inside a Different College<\/a> classroom and hear about topics from the american revolution, all right, and u. S. President s to 9 11. Thanks for your patience. With most colleges closed, watch professors transportation to a virtual setting to engage with students. Halfway. Met gorbachev he encouraged him, he supported him. Freedom of the press, medicine originally called it freedom of the use of the press. Things notpublish freedom institutional he of the press. Cspan3. Lectures in history are tv,ext on American History<\/a> a retired colonel, a former marine corps pilot, talks about his participation in operation frequent wind, the 1975 evacuation of americans and south vietnamese allies from saigon after it fell to the north vietnamese. The National World<\/a> war i museum provided this video. Now, i would like to proudly introduce retired marine corps colonel thomas w. Holden. He was commissioned as Second Lieutenant<\/a> in the United States<\/a> marine corps during his College Graduation<\/a> and proceeded directly to pensacola, where he was trained as a marine pilot. He was designated a naval aviator in december of 1968 and received further training in the ch46 helicopter at the marine base in california","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia803208.us.archive.org\/1\/items\/CSPAN3_20200801_180000_Separation_of_Powers__Civil_Rights\/CSPAN3_20200801_180000_Separation_of_Powers__Civil_Rights.thumbs\/CSPAN3_20200801_180000_Separation_of_Powers__Civil_Rights_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240716T12:35:10+00:00"}