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tv   Book Discussion on On Constitutional Disobedience  CSPAN  January 20, 2014 1:30am-1:55am EST

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there are lawyers at the very top of the income scale who are doing well for themselves. however, all by virtue of sharing in this common experience have a lot in common with each other that makes the profession itself someone democratic and also contributes to our national democracy that we have an ideal of what the legal training should be that really is the same for everyone regardless of income and family background so i do not want to give up on that. it doesn't run the risk of creating a more elite profession
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what's creating that has been a phenomenon. it's only fair well off. they have to do two things, shrink and we have to bring the tuition cost down. that will counter the trend towards of the profession to be a justice politics and the demand of professionalism. can you describe what you mean by that? >> guest: the book takes on those topics so in one chapter i offer that the law schools failed of their students and society by not centering on the justice as a topic of scholarship and teaching. we teach the law nothing about what the justice demands and requires so we need to address
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that and i think we can do that without a pindolol school as we know at. for various reasons they have neglected to study what i call the political route of law that in fact is the product of politics and so we need to study politics by not studying it we contribute to the tendency to denigrate politics. in other words in law school we tend to think and teach that it's the domain of the rational and the principle the end of the thoughtful while politics is the domain of the sentimental and the mean-spirited and this isn't true of either but it also fails to capture the connection
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between the two so partly again it is a matter of asking the faculty to not be so court center and focus instead on the legislative route but more generally it's about thinking through more clearly the connection between the politics and the relationship between the two realms. the demand of professionalism is what we need to rethink the relationship between the legal academy and profession in a way that will serve both. the legal academy is faulted and ibm agreed for not paying much attention to the legal profession of the students and future graduates. on the other hand, the legal academy can be faulted for not being critical so we cannot respond to the first problem by
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simply servicing the needs of the legal profession. there should be a distance between the legal profession and at the academy and its goals and ideals. >> host: this is book tv on c-span2 talking with georgetown professor robin west. "teaching law" justice politics and the demands of professionalism as her book. >> from the college series louis michael simon author of constitutional disobedience argues it's time to stop treating it as a sacred document that needs to be obeyed at all costs and assess people alive now shouldn't be shackled by a document created hundreds of years ago by people who couldn't understand what the country is like today. this is about 20 minutes. >> joining us on book tv is the
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author on the book on constitutional disobedience is the name of the book. professor michael lewis at georgetown university is the professor that roche this. are you saying it's time to throw out the constitution? >> ibm. first of all, thank you for having me on. i think this idea is right but almost everybody i know thinks it's wrong. my wife, my kids, my students. but it's surprising to many people think it's wrong because when you think about it, we are talking about a document that is over 200-years-old and is written at a time when the united states looks nothing like what it looks like today. it was a small republic along the eastern seaboard depending
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mostly were largely on slave labor when communications were difficult, travel was treacherous. this was a document written by people who had many of whom had compunctions about of gunning other human beings and who fought that women had no role to play in public affairs and who fought that people without property are not to be allowed to go to. so it is just pretty bizarre when you think about that that we should decide modern questions based on what they fought a very long time ago. here is the point. suppose you are let's say the president or senator or supreme
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court justice and you have a big decision about public policy and i'm assuming you're quite a responsible person, so you've spent a lot of time thinking about this and talking with other people and you've carefully considered the public policy implications and after you are all done with that you decided the right thing to do is x and then some rushes into the room and says don't do it yet i have something important to tell you. some people 200 years ago who are long dead and know nothing about the situation of road on a piece of paper not to do x. then you throw up your hands and
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say in that case i'm going to throw out everything i thought and it because it is for ten i'm not going to do x. anybody that did that i think needs their head examined. this is pretty abstract so let me make it a little bit more specific. let's talk for a minute about guns. most of my friends and family are surprised by this but i'm actually quite skeptical about gun control. it's not that i like guns. i would never alone one that the fact of the matter is there are 300,000 of them in that united states and i am doubtful that any ecological could do much to affect gun violence. >> are there 300,000 walls?
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>> guest: the ms. more guns in the united states. >> host: so 300 million? >> guest: 300 million guns in the united states. anderson and that position as controversial and i love to talk to people about. but here is how not to talk about it to talk that the second amendment. s start as you talk about the second amendment, to very bad things happen. first the discussion gets high attraction on things that could not be more irrelevant so instead of talking about whether they will control gun violence or is an aspect of natural rights to own guns we start talking about the relationship between the cause of the second
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amendment and what exactly the militia was 200 years ago and what precisely the relationship is between the bill of rights and our constitution and that the english bill of rights. none of this has anything to do with a question. it's hard to imagine anyone not a serious proposition much ado about guns in the united states by answering those questions. but then another bad thing happens also. as soon as you start talking about the constitution, the temperature begins to rise. so you and i could have a good fifth disagreement about the best thing to do about guns is and we can come away from it disagreeing that still being pretty good friends. but when we start talking about the constitution then you're not just saying i disagree about a matter of public policy, you're
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saying i am disregarding the foundational document that makes the united states. it's very close to saying i am a traitor and when you start talking like that to me at this hard for us to still be friends and there's much too much of that yelling and screaming in politics today and if we d constitutionalizing would be more relevant and meaningful and civil. the fact to not obey the constitution doesn't mean that we ought to do the opposite of everything that's in the constitution. there are things in a
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constitution that are good ideas come so freedom of speech, guarantees of liberty. those are things we ought to do not because they are in the constitution, the but because they are the right thing to do. there are other things in the constitution that maybe they are bright and maybe they are wrong but we have been doing things this way for along time and it's not good to have arguments about everything all the time. so for example i don't know whether the presidential term is exactly the right length. i do know that it's a bad idea to be arguing about that every four years and so i don't think we should argue about. there are other things in the constitution is that our courts are giving about.
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it's very hard to defend that. it's just not good that the people when william and have the same representation in the senate has left 35 million people in california. that is something that is very hard to defend. it's just not good that people like me that live in the district of columbia have no vote at all over the folks that realize. i don't think that contemporary americans would contend any of those results and yet we are stuck with them because of the constitution. here is what this is ultimately about. the united states is our country. we have the kind of country that we want. no one is saying that we ought to be ruled by france and that
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the united nations has a right to rule us and for just that reason, nobody should think that we ought to be ruled by people that have been dead for to under 50 years and whose country is not any more. paradoxically, the most important three words in the constitution, we the people are actually violating by obsessive obedience to the constitution. what the people means is we've the living people, and getting rid of our obsession with zero being the document written by people who are dead is the beginning of reclaiming the country. >> host: what about the amendment process. why can't we use that for the constitution?
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>> guest: it's not only the oldest in the orld but it is also the most difficult to amend that requires a two-thirds vote followed by ratifications in the state legislatures. that means that a tiny number of citizens from one-fourth of the least populous states in the country can block an amendment and as a practical matter it means many of the issues mentioned are possible to amend. for example there is just no way that the senate would permit an amendment that would reapportion the senate. at the constitution hasn't been amended since 1971 if we don't come count de part of the original bill of rights.
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it's not likely to be amended anytime soon. the amendment process itself is part of the constitution that we are disregarding. >> host: what would you replace it with? anything? >> guest: - we have a set of customs traditions, way of doing things and thinking about things that would perfectly adequately schedule our politics. and we don't have to just imagine what the world would be like if we do that. we have examples in other parts of the world. so, the prominent examples are the united kingdom and new zealand. they don't have written constitutions and the last time i looked they were successful
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countries. there were not fri it's in the streets. the leaders for not arresting their political opponents and things were pretty well there and then they would work pretty well here as well. >> host: doesn't the constitution protect the american people from the tyranny that it originally was protecting us from if we had a series of those could change every year. >> guest: they could change. given the situation now they don't seem to change but there's nothing wrong with that. circumstances change, people's opinions change. there are some things that ought to be pretty much fixed. for example, freedom of religion and speech, right to equality
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and liberty. but i think that you are kidding yourself if you think that a piece of paper in the national archives is what is protecting those things. madison was right about this he referred to the piece of paper as a parchment barriers and he pointed out he couldn't if men were angels the constitution wouldn't have been necessary but because they are not angels they are not effective. anybody that is evil enough to want to trample on the right of the american people is going to be evil enough to what's written in a document which the document has no guns or power it is just sitting mayor so if you ask what is it that protects the civil
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liberties in the united states it's not a piece of paper that the facts as american citizenry and if that doesn't exist then we are just kidding ourselves if we think the constitution is going to protect over celebrities. >> host: how did you come to this view? >> guest: i came to this from teaching the constitutional law for a very long time but also from just watching the way that american politics works and the way the constitution is used. one of the things you begin to notice after a while is the way in which the constitution, the content of is determined by politics and the political view of people on both sides.
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so let's talk about guns again. is it a coincidence a the presidents fought the second amendment hadn't borrowed gun control while all of the justices appointed thought that it did? looking at the same language are we really supposed to believe that the political commitment had nothing to do with that? and that isn't just about guns. in a case after case where the stakes are high and the politics are salient the justices are leading into the constitution their own public policy views and that's just a bad the and the american people are smart enough to understand that's what is being used for political
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purposes and that it's not bad though we disagree about these matters about it is bad that one side is trying to shut up the other side by saying i don't have to tell you what your policies are wrong you are just not allowed to believe that because the constitution takes it off the table hobaugh. >> host: don't we need a touchstone as the constitution? >> guest: we may need a unified touchstone and i think that interesting we it could be such if we understood not as a legal document framing questions
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and providing a kind of emotional way of urging us to believe in a certain way. so, the great promise of liberty, justice those are things we can agree on and i think it is appropriate for us to take the preamble that we are to form a perfect union as a starting point that we can all agree on. one way to think of it is instead of thinking of the constitution as a legal document you might think of it as a symphony or work of art and one could be inspired one could even
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try off to replicate the value but it would be odd to think one is obeying a poem so the great carless and the constitution flake ebal and due process they are not things that we obey but they are things that inspire your us and when we think of what is working well they might sell us with a sense of wonder that could be moved by that same killing which and come to different conclusions about how the world ought to be structured if we could see that, that could be the beginning which we could build political communities that democrats and republicans have inspired although they see the
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way to implement them. >> host: you stated that the beginning your wife, kids, students, colleagues think that your ideas are off. is this a growing idea in the legal scholars who calls? >> guest: welford stockholm can not just legal scholars that many americans are coming to see that when the supreme court or political figures insist something is unconstitutional that they bring political values and to the constitution and i think a lot of people understand that's the way that works. i also felt that a growing number of scholars have expressed


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