Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy

In today’s fractured nation, there’s one thing Americans seem to agree on: government is not working. Last month a Gallup poll showed Americans’ approval of the way Congress is handling its job dropped to a record low of 9 percent. And the president’s approval rating dipped below 40 percent. Political analysts on the left and the right are trying to figure out what’s going on. More than a few are asking whether the U.S. Constitution should share the blame. As one analyst put it, the Constitution “guarantees gridlock” and is “virtually impossible to change.” Diane and her guests discuss dysfunction in Washington and the Constitution.


  • Jeffrey Toobin Staff writer at The New Yorker; senior legal analyst for CNN, author of "The Nine: Inside the Secret World of the Supreme Court" (Doubleday), and former Assistant U.S.Attorney in Brooklyn, New York.
  • Bruce Fein President of the National Commission on Intelligence and Foreign Wars; former associate deputy attorney general under President Reagan; and author of "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy."


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Polls show Americans are fed up with the dysfunction in Washington. Partisan politics gets most of the blame, but some legal scholars on both the left and the right have begun to ask if the root cause lies in the U.S. Constitution.

  • 10:07:14

    MS. DIANE REHMJoining me here in the studio to talk about whether the founding fathers got it right, Bruce Fein, former associate deputy attorney general under President Reagan. And joining us from an NPR studio in New York City, Jeffrey Toobin, senior legal analyst for CNN and a staff writer at the New Yorker Magazine. I invite you to weigh in today with questions, comments. Call us on 800-433-8850. Send us an email to Follow us on Facebook or send us a tweet. Bruce Fein, Jeffrey Toobin, welcome.

  • 10:07:59

    MR. JEFFREY TOOBINThank you, Diane.

  • 10:08:00

    MR. BRUCE FEINHi, Diane.

  • 10:08:02

    REHMAnd, Jeffrey Toobin, I'll start with you. In the Dec. 9 issue of The New Yorker Magazine, you wrote a piece titled "Our Broken Constitution," and you ask, are the founders to blame because our government is not working. You talked to a great many scholars. What kind of conclusions did they come to, and on what did you base your statement, our broken constitution?

  • 10:08:40

    TOOBINThere are dramatic differences between people on the left and on the right in terms of their complaints about the Constitution, but there's a lot of dissatisfaction on both sides. On the left, I think you see a great deal of unhappiness with the institution of the United States Senate and with the Electoral College.

  • 10:09:03

    TOOBINOn the right, I think you see a belief that the federal government has grown to a size that contradicts what the framers intended for the scope of federal power. I think that both sides certainly have a point, at least in the larger sense, that the Constitution is largely -- not largely or at least in significant part -- obsolete for the kind of society we have today.

  • 10:09:41

    REHMAnd what about the possibility or the prospects of amendments to the Constitution to somehow bring it in line with where we are today?

  • 10:09:56

    TOOBINOne of the problems with the Constitution is that Article 5, which sets out the amendment procedure, is just so difficult to make work. Two-thirds of the House, two-thirds of the Senate, three-quarters of the state legislatures are required for any amendment. Sanford Levinson, who is a professor at the University of Texas Law School, sort of the father of the progressive critics of the Constitution, points out that that means about 10 percent of the population can veto any Constitutional amendment.

  • 10:10:34

    TOOBINThat essentially locks the Constitution into its present format and, I think, creates a significant number of the problems we have now.

  • 10:10:44

    REHMI thought it was interesting that when Prof. Levinson went to Philadelphia in 1987, he was one of those who re-signed the Constitution. But in 2003, when he went back again, he said, I won't do it. What happened between 1987 and 2003 to change this Harvard University professor's mind?

  • 10:11:19

    TOOBINThe Senate became impossible. I think that's what Sandy Levinson really saw, that the Senate is just such an undemocratic institution, the notion that Wyoming and California, which have, I believe, 60 times different in terms of the size of population, have the same number of senators, has locked in an undemocratic approach to governing that I think, at least for Sandy Levinson, it became intolerable.

  • 10:11:49

    TOOBINWhen you pile on top of that the filibuster, which most courts have said is off limits for judicial intervention, it's up to the Senate, it's just a recipe for such dysfunction that Sandy Levinson at least said, I'm not signing on anymore.

  • 10:12:06

    REHMJeffrey Toobin, he's staff writer at The New Yorker, senior analyst for CNN, author of "The Nine: Inside the Secret World of the U.S. Supreme Court." Turning to you, Bruce Fein, you say it's not the Constitution at all.

  • 10:12:27

    FEINNo. I think some of the criticisms that Jeffrey enumerated there are misplaced. The amendment process is arduous, but it's certainly not unsurpassable. The 18-year-old Voting Rights amendment, after the Supreme Court held in Oregon and Mitchell in 1970 that Congress, by statute, couldn't empower 18-year-olds to vote in the state elections, it was ratified, I believe, in 13 weeks.

  • 10:12:49

    FEINThe very first act of the very first Congress was to propose what became known as the Bill of Rights. Two of the amendments were not ratified. And that was relatively swiftly, I believe, in a couple of years. So the problem isn't the Constitution. There have been 28 amendments to the Constitution. Our Civil War amendments that gave life to the current standards of equality under the law were amendments to the Constitution.

  • 10:13:12

    FEINThe founding fathers specifically created super majority requirements because they worried about instability, the expectations that would upset. They wanted to make it difficult to amend the Constitution, but not impossible. As I say, the very most important act of the very first Congress was to give birth to the Bill of Rights.

  • 10:13:30

    FEINWith regard to the United States Senate, the founding fathers intended the Senate not to act as a pure majority or an institution. It's less that way now than at the outset because the 17th Amendment made senators directly elected as opposed to being elected by state legislatures. Indeed, the election of the Senate is just one of at least a half a dozen provision in the Constitution that are specifically calculated to frustrated pure majority rule.

  • 10:13:56

    FEINThe fact that the House -- that the Senate serves staggered terms, only a third turn over every two years, where the House does in total. The House has two-year periods of service, rather than six. The presidential veto can only be overridden by two-thirds majorities in the House and the Senate. You need two-thirds to ratify a treaty.

  • 10:14:15

    FEINAll of these particular institutions, including perhaps most important, the idea of judicial review, that the U.S. Supreme Court can nullify actions of majorities in House and Senate plus the present, by finding certain actions are beyond Constitutional authorization. All these are vindications of what the founding fathers intended.

  • 10:14:35

    FEINYou could say you don't like that anymore because today, you think majorities ought to rule without any obstructions, any speed bumps in the road, but that's sort of saying we should have an entirely new view of government, rather than the Constitution isn't working as the founding fathers envisioned.

  • 10:14:51

    REHMBruce Fein, he's president at the National Commission on Intelligence and Foreign Wars, former associate deputy attorney general under President Reagan and author of "Constitutional Peril: The Life and Death Struggle For Our Constitution and Democracy." Do join us, 800-433-8850. Jeffrey Toobin, is this simply an academic argument or are there -- is there a real life struggle for either the maintenance or the overthrow in big ways of the U.S. Constitution?

  • 10:15:43

    TOOBINNo, it's not just academic. Let's talk about gun control. Ninety percent of the public, according to public opinion polls, support background checks for the purchase of firearms. The United States Senate voted that down, largely because senators from small, more rural states really don't like gun control. Bruce is right that the framers of the Constitution thought that there should be an undemocratic check on the House of Representatives, which has traditionally been more responsive to the people.

  • 10:16:19

    TOOBINWhy is that a good thing? I don't get that. I don't understand why we should enshrine one of the mistakes the framers made, like, for example, their endorsement of slavery, which has been overturned by the amendment process. But the idea that an undemocratic -- egregiously so -- intention of the framers should continue to be honored is something that I just don't get.

  • 10:16:46

    REHMBruce Fein.

  • 10:16:46

    FEINWell, I think, Jeffrey, the answer is that the founders thought that paramount in the architecture of government was the blocking of any particular majority faction from forcing its way to oppress what was viewed as a minority faction. And it wasn't a goal to get majoritarian tyranny. Whatever the majority wanted, things would prevail.

  • 10:17:06

    FEINIn fact, that's why we have a Constitution at all. And you may be disappointed with the Heller decision of the U.S. Supreme Court finding an individual right in some circumstances to own a gun, but that was enshrined in the Second Amendment and you can repeal the Second Amendment like the prohibition amendment was repealed. It may be difficult. And moreover, even though the Senate frustrated background checks, states are authorized to require background checks with regard to gun purchases within their states.

  • 10:17:34

    REHMSo you're saying that states act as their own counterbalance to the U.S. Senate?

  • 10:17:41

    FEINIn this particular instance, yes. And you have found it's varied. The pattern is varied. Maryland came up with very strong gun control laws after the Newtown shootings. New York did. Colorado went in the other direction, had some members who were recalled because of their votes, but that's the system in operation.

  • 10:17:57

    FEINAnd the fact that the Senate may, at one particular time, have voted against background checks doesn't mean it's in perpetuity. You continue to have elections. And the system change. But it's designed to be incremental, not revolutionary in the way in which our laws evolve.

  • 10:18:11

    REHMJeffrey, quick comment?

  • 10:18:15

    TOOBINI agree, that's the idea, and I am not suggesting that the Senate should be completely abolished. I do think, though, that this pendulum has swung so much in the direction of inaction, particularly when you add in the filibuster, that there really needs to be some change made.

  • 10:18:32

    REHMJeffrey Toobin and Bruce Fein, our discussion will continue about the U.S. Constitution after a short break.

  • 10:20:01

    REHMAnd we're talking about the ongoing struggle that Americans are having with the fact that they see government as broken. And some believe that the U.S. Constitution itself may be at fault. With me, Bruce Fein, and on the line Jeffrey Toobin. He's staff writer for The New Yorker and senior analyst for CNN.

  • 10:20:34

    REHMHis article in The New Yorker magazine on Dec. 9 sparked our conversation this morning. And of course you are always welcome to join us. We'll open the phones in just a few moments. Bruce Fein, just before the break, we were talking about the filibuster. Talk about how you see the U.S. Constitution and the U.S. Senate at work in that regard.

  • 10:21:07

    FEINThe Constitution entrusts to both the House and the Senate independently authority to make their own rules of proceeding. The Senate has changed their rules with regard to the ability of a minority to block nominations, legislation from coming to the floor, which Jeffrey called the filibuster. At one time, you needed a two-thirds vote in the Senate, now an absolute numbers of 60 votes.

  • 10:21:30

    FEINBut I think the system shows it's working by the recent decision that the Senate took by simple majority to say we're not going to permit filibusters for executive branch nominations and judicial nominations below that of the U.S. Supreme Court. I wish they'd go further and may go further in the future. But there shows that...

  • 10:21:46

    REHMWhat would it mean to go further?

  • 10:21:48

    FEINThat is to also eliminate the filibuster when it comes to Supreme Court nominations as well as just legislation. Because I think the Senate's there as a check because it represents different constituencies. The Senate sort of has asserted power to raise by rule a unanimity requirement to get anything done, which I think is ridiculous. But this kind of stalemate that Jeffrey has criticized has caused the public to oppose the filibuster and found expression in the change of the rule.

  • 10:22:14


  • 10:22:16

    TOOBINWell, I think we largely agree about that. And I think there is a larger point that I try to make in the piece, which is that, although it is true that the Constitution is basically frozen in its currently form, there is more flexibility in the system than some people think. It is true that the filibuster had gotten so out of control in the Senate that the rule was cut back.

  • 10:22:41

    TOOBINIt is true, too, that, as Bruce mentioned earlier, conservatives who were so exercised about what they felt was a misinterpretation of the Second Amendment wound up winning in the Supreme Court and seeing a new interpretation, more pro-gun rights adopted by the court under the Second Amendment.

  • 10:23:00

    TOOBINLiberals succeeded in persuading the courts that the Constitution actually protects gay people, a concept that is relatively new. So it is true that when the public mobilizes in very significant numbers, it is possible that the Constitution changes without the letter of the law changing.

  • 10:23:20

    REHMJeffrey, you point out in your piece in The New Yorker that Thomas Jefferson believed that any constitution should expire after 19 years. You quote, "If it be enforced longer, it is an act of force and not of right." Frank writes on Facebook, "Thomas Jefferson was quite correct. The Constitution should be written each generation. The current Constitution is out of touch with both the technological advancements and the general knowledge growth that comes from accumulated information." What did your scholars to whom you spoke have to say about that?

  • 10:24:15

    TOOBINWell, I think the subtext of what everyone says about changing the Constitution is that they're afraid of their side losing. You know, liberals think, boy, if it were easy to amend the Constitution, we'd have amendments banning flag burning, banning same-sex marriage. And liberals and conservatives worry that, you know, in the '70s, you would have had the equal rights amendment.

  • 10:24:41

    TOOBINYou would have had a right perhaps to housing or to medical care. There is a kind of standoff that both of them -- that both sides recognize that, well, there's a lot we'd like to change, but we don't want to let the other side get their hands on it. So that's kind of where both sides are on the amendment process.

  • 10:25:04

    FEINWith regard to the Thomas Jefferson observation, the Founding Fathers considered it seriously, but it's a cure worse than the disease they concluded because it would mean every 20 years you'd have a total upheaval in the distribution of power. No one would know whether Congress, the House, the Senate, the president, the judiciary had these particular authorities. It would create such chaos and unpredictability, it would really stymie a lot of what is needed in order to encourage innovation and planning in your life if every 20 years you had a whole new Constitutional convention.

  • 10:25:34

    FEINNow, with regard in general to the Constitution's ability to adapt to things that obviously couldn't have been foreseen technologically at the time of the founding, that was constructed in the necessary and proper clauses to Article 1, Section 8, Clause 18, which provides Congress with authority to address in the legislation necessary and proper to the larger objectives that are enumerated in the first 17 clauses in Article 1, Section 8.

  • 10:25:59

    FEINFor instance, the Constitution nowhere mentions an air force, just armies and navies. No one said, well, you can't have air force just because you didn't have airplanes at the time. So I do not think that, as properly interpreted -- and this is the famous decision by Chief Justice Marshall in McCulloch in Maryland that Congress is handicapped because there are new technologies that weren't around at the time. We can address them.

  • 10:26:22

    FEINI do think, however, that sometimes the Supreme Court gets a little bit slow on new technology, especially with regard to the electronic surveillance and this idea that if you expose your email to Yahoo or your server, then it's free game for the NSA. That needs to be re-examined. The court got it wrong in '79, and I think they will. But another example, I think, where the court is willing to change its mind has overruled itself 212 times as new information enters into the political domain.

  • 10:26:48

    REHMAll right. Here's a tweet from Curtis: "The Constitution expects legislators to act reasonably. So should we." Does that put it right back in the hands of the legislators who may not be acting in the best regard to the Constitution, Bruce?

  • 10:27:15

    FEINWell, remember, the House and the Senate can expel members by two-thirds vote if they think someone is acting way outside the mainstream. It's happened very seldomly. (sic) But it's surely true both the Senate and the House are obliged to have their members take an oath to uphold and defend the Constitution of the United States, which means both the letter and the spirit.

  • 10:27:35

    FEINNow, ultimately the Founders thought the accountability was to the voters. The votes are taken and opened, and the voters know how their member's acting. And they can vote them out of office. But ultimately, you know, the law and the Constitution can do so much. If the culture is so debased that you get extremism on both sides, it's impossible for just words to overcome that brigade.

  • 10:27:55

    REHMJeffrey, any comment?

  • 10:27:57

    TOOBINWell, you know, that brings to mind what -- a Supreme Court case that I mentioned in the piece which is to me the most important little known case in the recent history of the Supreme Court, which is a case out of Pennsylvania called Vieth v. Jubelirer where the Supreme Court said that partisan redistricting is not a matter for the courts. It is completely within the discretion of state legislators.

  • 10:28:26

    TOOBINAnd so what that means is that every state legislator has the absolute right to gerrymander so that there are no competitive districts, so that the party in power gets to preserve its power. And how that is consistent with a Democratic constitution is a complete mystery to me and, I think, a really devastating indictment of both the Supreme Court and the underlying Constitution that's allowed to continue.

  • 10:28:53

    FEINBut I...

  • 10:28:54

    REHMAnd here's a posting on Facebook on this very issue. Brian says, "I think the root of dysfunction is gerrymandering. If congressional districts were drawn to ensure one person, one vote, without regard to political party, Congress would be more accountable."

  • 10:29:19

    FEINWell, Congress can certainly do that if they wish to draw the lines. They've decided under their authority to defer to state legislators in drawing congressional districts. But the fact is, through public debate and encouragement, half the states have independent judicial commissions -- or where they call them judicial commissions. They're independent commissions -- they're bipartisan -- that draw the congressional districts, most recently out in California. And so it's wrong as a factual matter to suggest that at present all state legislators with partisanship in mind draw the boundaries.

  • 10:29:52

    FEINAnd it's difficult to find that in half the states that have these independent commissions drawing the boundaries, their members act differently than those who are gerrymandered. I certainly would agree with Jeffrey. I think it's an outrage that anyone should have their rights impaired because they happen to belong to a political party. You have a constitutional right.

  • 10:30:11

    FEINAnd Davis and Bandemer was sort of the predecessor case to the one that Jeffrey mentioned. And I think the court was wrong to suggest that even when you know that the open and notorious purpose of a line is to make certain that one political party loses to another, that's something I think it ought to be judiciary reviewable. And maybe the Supreme Court will come around to reexamining that issue later on.

  • 10:30:32

    REHMAnd here's a final posting from Facebook from Scott who says, "The Constitution is an amazing document worthy of respect. But it was not given to the U.S. by a deity. It was written by human beings. It was loaded with problems from the beginning. Surely it can be perfected." He identifies himself as being with Lawrence Lessig, who says, "We need to have an Article 5 convention." What do you think, Jeffrey Toobin?

  • 10:31:12

    TOOBINCan you say freak show? I -- yes, Larry Lessig is a very smart guy, and he and Sandy Levinson are working on this idea for a constitutional convention. And maybe it's a good idea. Maybe wonderful things will come of it. This is the problem with opening up and amending the Constitution. I basically am sympathetic, but at least doing it now for the first time since 1787, I've got to say, makes me somewhat nervous. I know that they are very concerned about some sort of amendment that would overrule the Citizens United decision that would not allow free spending in every election.

  • 10:31:58

    TOOBINInterestingly, Mark Levin and Randy Barrette, the more conservatives are -- conservative proposers of amendments are interested in an amendment in trying Citizens United and make sure that no Congress could come along and limit campaign contributions and expenditures again. And I think that illustrates, you know, just how polarized we are on these issues and how unlikely any sort of constitutional convention is really going to be to change anything.

  • 10:32:30

    REHMJeffrey Toobin, he's staff writer at The New Yorker. His article regarding the broken constitution as it's called was published in the Dec. 9 issue. And you're listening to "The Diane Rehm Show." We're going to open the phones. We have many callers, 800-433-8850. First to, let's see, Steve in Indianapolis. You're on the air.

  • 10:33:06

    STEVEGood morning, Diane.

  • 10:33:07

    REHMHi there.

  • 10:33:08

    STEVEIt's really nice to talk to you. Hey, you know, I think my personal feeling on this is that blaming the Constitution for the problems that our society has makes about as much sense to me as blaming the Ten Commandments for the murder rates or the theft rates or the adultery rates in our country. It's 10 simple rules or seemingly simple rules that are very difficult by many accounts and at many times in life to adhere to. But we don't go changing the Ten Commandments because society's having a hard time dealing with them or living up to them.

  • 10:33:44

    REHMAll right.

  • 10:33:44

    STEVEInstead, we adhere to that document, and we try and work the better society. And I think that's how the Constitution is too. Is it perfect? No, it's not. But it's the most workable document I think that's ever been written or codified.

  • 10:33:58

    REHMAll right. Thanks for your call, Steve. What do you think, Jeffrey Toobin?

  • 10:34:04

    TOOBINWell, you know, that -- certainly I think most people agree with Steve that, you know, it's not perfect, but it's the best we have. I think it's not perfect. It has stood us in relatively good stead, but there are a lot of problems with it. And my answer is not simply to throw up my hands and say, well, it's good enough. It's -- to seriously explore changing parts of it, not all of it but parts of it that really do create governmental dysfunction.

  • 10:34:34

    REHMJeffrey, talk about the Electoral College and the concerns there.

  • 10:34:41

    TOOBINWell, I can't wait for Bruce to defend it. I mean, the Electoral College to me is just so utterly indefensible. The idea that it gives small states a vote, which it doesn't -- when was the last time you saw a candidate campaigning in Utah? I mean, we have a presidential election system where the same 10 or so states get all the attention.

  • 10:35:05

    TOOBINAnd essentially the rest of the county is disenfranchised. I think candidates should campaign in Texas and California and New York as well as Florida and Ohio. And it's undemocratic. It gives some states too much power. And I just -- I cannot conceive of any reason other than inertia that it still exists.

  • 10:35:30

    FEINWell, I think, Jeffrey, you pointed out something that justifies the Electoral College. That is, you wanted to see candidates campaigning in all the states. And when you just have pure population as the proxy for the weight on the presidency, you're not going to have anybody go to Utah, that you suggested, or to Nevada. They'll go to California, all the big states. Why go to the small states that have small populations? They wouldn't visit them at all. At least with the Electoral College, you've got to make a cameo appearance everywhere.

  • 10:35:59

    FEINAnd if it were true that in practice the Electoral College chronically frustrated majority will, that would be one thing. There have been a handful of occasions, you know, Bush v. Gore being perhaps the most controversial, where that was an issue. But I don't think that the American people think the reason why we're in, you know, the political plight we are now is because of Bush vs. Gore. The problems far transcend that.

  • 10:36:19

    FEINNow, with regard to the idea that the Constitution is, you know, the Immaculate Conception that can't be altered, that's wrong. I mean, the very first act of the very first Congress was to propose 12 amendments. Ten became the Bill of Rights because the Founding Fathers knew it wasn't flawless and that you could amend it.

  • 10:36:34

    REHMDo you believe that the Constitution, as it now stands, needs to have amendments to it to adjust to where we are in gridlock?

  • 10:36:48

    FEINYes. But I think -- I'm not sure that I would use the term gridlock in terms of what my Constitutional amendments would address because I feel that the greatest dangers we confront now is the concentration of power in the national security area. In one-branch government, it's all the president. He decides to go to war.

  • 10:37:05

    FEINHe does executive agreements to send our troops abroad for 10, 20 years. He unilaterally can kill anyone with a Predator drone that he says is an imminent danger, all the spying of the NSA secreted from the American people, those are the amendments that I think I would address to try to recalibrate the balance between Congress and the executive.

  • 10:37:23

    REHMBruce Fein and Jeffery Toobin. We'll continue our discussion after a short break. We'll also be taking your calls.

  • 10:40:02

    REHMAnd welcome back. I have several emails similar to this one from Dale in Florida. "If there were a constitution like ours in place in Germany during the 1930s, Hitler would never have been able to gain such power. Though many think our Constitution is a detriment, producing gridlock, I'd rather have gridlock, which is really necessary, checks and balance, than an easy way for a potentially unforeseen tyrannical ruler at some future time to be in charge, like a Hitler."

  • 10:40:48

    REHMWhat do you think, Jeffry Toobin? Does our Constitution actually prevent such a tyrannical leader from taking the top seat?

  • 10:41:00

    TOOBINWell, talk about the soft bigotry of low expectations, you know. Yes, it is true that the Constitution protects us from having Hitler. Is that the best our government can do, is that we don't have Hitler? I mean, you know, I think I have a little higher expectations for the American government, that we prevent, you know, homicidal maniacs from coming in and killing millions of people.

  • 10:41:23

    TOOBINI expect better, and I think we all do from the Constitution that, you know, it's more than just preventing absolute tyranny. We have a great country. It works pretty well. It could work somewhat better with a better constitution.

  • 10:41:37

    REHMBut, Jeffrey, you do point out that the Constitution, as written, allowed for the continuation of slavery. So is that prima facie evidence that our Constitution is flawed?

  • 10:41:54

    TOOBINIt certainly is evidence that there were big problems at the very beginning. And I think that's the single most important reason why we shouldn't revere the Constitution. Now, in fairness to the process that was set up by the framers, that defect, as at least a legal matter, was fixed after the Civil War by the 13th, 14th, and 15th Amendments. It certainly didn't fix the problems of racism and discrimination in the real world, but it is true that any document that could allow for slavery is not one that, I think, is so sacrosanct that we can't talk about how to improve it.

  • 10:42:37


  • 10:42:38

    FEINWell, I'd make a couple of observations. First, with regard to the caller, the Weimar Constitution, which was the one that was distorted by Hitler to obtain absolute power, shows that you have to have an underlying political culture that supports the document. The Weimar Constitution did have this infamous Article 48 that said the prime minister can declare an emergency, or the president couldn't suspend all constitutional rights. And we don't have that written into our Constitution. But with regard to, you know, the checks and balances and tyranny, it's true. We're nowhere near Hitler Germany.

  • 10:43:09

    FEINBut even when we think about some of the so-called gridlock efforts -- Jeffrey mentioned the filibuster -- we need to recall very recently that Rand Paul conducted a filibuster that was almost a national education on the claimed power of the president through his CIA director, John Brennan, to say that he could kill any American anywhere if he discerned that he was an imminent danger to the United States, which is sort of a harrowing power.

  • 10:43:34

    FEINEven if it's not utilized -- because we expect a president to restrain himself -- and he's killed about four U.S. citizens abroad unilaterally. Still the president is what Robert Jackson said, it lies around like a loaded weapon, ready to be used when we get somebody who's a little more unstable. Lastly, with regard to slavery -- and I take objection to the idea that the document was contaminated because it did not outlaw slavery everywhere. Remember that the Constitution incorporated the Northwest Ordinance of 1786 that said in the huge territorial domain of the United States, slavery was prohibited.

  • 10:44:10

    FEINAnd the slave trade was prohibited after 1808. Now, it's true that the Constitution did not force the Southern states, and some of the Northern ones that had slavery, to abandon it immediately. But think of the alternative. Suppose the Constitution wasn't ratified because they insisted upon abolishing slavery immediately. I can guarantee you, in the states where slavery ensued, there wasn't going to be any emancipation proclamation anytime soon. So would the slaves have been better off? I don't think so.

  • 10:44:39

    TOOBINBruce, you know, I think we're just going to disagree on that one 'cause the idea that you're sitting down to write a Constitution and you allow for slavery, I'm sorry, that's a taint. That is a disgrace, an embarrassment, and no sort of political science theory about what might otherwise have happened is going to persuade me otherwise.

  • 10:45:04

    FEINBut I don't think that's just political theory. Listen, Jeffrey, we made an alliance with Joseph Stalin in World War II, despite all the hideous things he was doing and continued to do because there are larger interests at issue. Thomas Jefferson put initially in the Declaration of Independence a condemnation of the slave trade that was taken out 'cause of pragmatic considerations. And if you think that the Southern states would have gone ahead and emancipated their slaves without a war, which killed a lot of innocent people, I think that's a misplaced belief.

  • 10:45:31

    REHMAll right. I'm going to go back to the phones to John in Ann Arbor, Mich. You're on the air.

  • 10:45:41

    JOHNDiane, thank you very much for taking my comment.

  • 10:45:44


  • 10:45:45

    JOHNThe most serious problem in Washington dysfunction is our two-party system, not the Constitution. This problem stems from our plurality voting system, which everywhere it is used engenders a two-party duopoly. Given Article 1, Sections 4 and 10 of the Constitution, the 14th Amendment and the precedence in Oregon v. Mitchell, Congress has the power by simple statutory act to enact in federal elections a better voting system that would open up our political processes to third parties...

  • 10:46:21

    REHMAll right, sir.

  • 10:46:23 issue I have wanted to see programs like "The Diane Rehm Show" to take up.

  • 10:46:26

    REHMAll right. Thanks for your call. What do you think, Jeffrey?

  • 10:46:30

    TOOBINWell, you know, that's a very interesting point. And it is true that our system, particularly in the House of Representatives, of single-member districts, really does create an almost mandatory two-party system. And it is possible, and it would be constitutional, to have other voting systems of proportional representation where you ranked candidates. And they would clearly be constitutional.

  • 10:46:54

    TOOBINI guess I don't have a great enough imagination to think about the United States in something other than a two-party system. I think it is so engrained that I just can't imagine how you would even begin to change. You know, there have been occasional attempts in presidential elections, John Anderson, Ross Perot, but they never seem to go anywhere.

  • 10:47:18

    FEINWell, you could change it by lowering the requirements to obtain valid access and also by increasing public funding that would be available to those who get…

  • 10:47:27

    REHMDo you think that that would be a good idea?

  • 10:47:29

    FEINYes. I do think it's a good idea.

  • 10:47:29

    REHMYou do?

  • 10:47:30

    FEINI think that the more challenges you have out there, the better. Currently, the Democrats and Republicans do not have a monopoly on wisdom.

  • 10:47:37

    REHMAll right. Here's an email from Jim in Chapel Hill, N.C., who says, "I wonder if it's the voter who is dysfunctional. It is our job to hold Congress' feet to the fire." You're laughing, Jeffrey, but not many people are voting these days.

  • 10:48:01

    TOOBINWell, forget that they're not voting. How about what they want? They all want more services and less taxes.

  • 10:48:07


  • 10:48:07

    TOOBINAnd so, you know, that's the one great prohibition on politicians. They can never attack the voters for their chronic stupidity and greed. But, fortunately, we're journalists, and we get to try to speak the truth. But it is true that voters have contradictory desires and often behave irrationally. And they don't like that Mitt Romney strapped his dog to his roof, so they didn't vote for him. They vote for sometimes bad reasons, but, again, what are we going to do, have intelligence tests for voters?

  • 10:48:46

    FEINNo. Well, at one time, we did have literacy tests, but they were abused -- were racist. And so they went out the window. But I do think in addition to simply trying to increase the voter responsibility by laws, which I don't think can be done, I don't think that there's anything wrong with trying to inculcate an ethic in Americans, that in democracy you have an obligation to participate. You can't sit it out. Two less eyes and ears looking on government abuses means possible danger to others.

  • 10:49:14

    FEINAnd that needs to be a civic responsibility that's encouraged in the classroom, around the dinner table, in friends. It's not something I think the law ought to address because, ultimately, if the people become complacent, I can guarantee you will have a government of wolves. This goes back to Edward R. Murrow. A people of sheep will get a government of wolves. It was true at the time of McCarthyism. It's true today.

  • 10:49:33

    REHMAll right. To...

  • 10:49:33

    TOOBINBut it's just worth pointing out that the contemporary Republican Party is trying to make it harder to vote, not easier.

  • 10:49:42

    FEINAnd that's a disgrace. I believe that you want to -- I totally believe that's disgraceful.

  • 10:49:46

    REHMSo you two agree on that?

  • 10:49:47


  • 10:49:47

    REHMThank you.

  • 10:49:48

    TOOBINYes, we certainly do.

  • 10:49:49

    REHMLet's go to Lisa in Chapel Hill, N.C. You're on the air.

  • 10:49:55


  • 10:49:56


  • 10:49:57

    LISAI was outraged, of course, when I heard dump the Constitution as it stands now. I don't think the Constitution is the problem. I think it's a dynamic document. I think the answers are in there as to how we can make it better. I don't think that we need to dump important parts of our government. I do think that our government's broken. It's been worse shape before, and we found our way through it.

  • 10:50:27

    LISAAnd I don't think that government should be easy, especially a democracy. It should be difficult. It should be tooth and nail. I'm sure we would have been astounded if we had been in the room when they were writing the Constitution, of the disagreements. And I think that's a part of democracy. I think the point he made earlier is right. We should be doing a better job in schools of making our children understand that this is their burden that they must carry.

  • 10:50:52

    REHMAll right. Lisa, thank you.

  • 10:50:54

    LISAIt is a democracy. Thank you.

  • 10:50:54

    REHMThank you for your call. Jeffrey, if there is one amendment that you would put forward, that you think would make our government operate better, what would that be?

  • 10:51:12

    TOOBINWow, you know what? I just prefer being a critic complaining about things rather than saying anything productive. I guess I would ban the filibuster. I would say that the Senate has to operate by majority rule, except where it is explicitly authorized, like in the ratification of treaties.

  • 10:51:34

    REHMAnd you, Bruce?

  • 10:51:36

    FEINI'd put in something that explicitly stated no president can take us to war, to have us risk that last full measure of devotion and curtail civil and economic liberties without an expressed authorization of Congress, unless in response to an actual attack. I believe that is the greatest danger, is the concentration of limitless power in the presidency.

  • 10:51:55

    REHMAnd what would you say about the filibuster, that it should just continue?

  • 10:52:01

    FEINI think that we should have a filibuster but with a time limit on it because, as I say, some filibusters have served, I think, very good educational purposes, like I mentioned Rand Paul and the nomination of John Brennan.

  • 10:52:11

    REHMYeah, but how about somebody up there reading "Green Eggs and Ham" to us?

  • 10:52:15

    FEINWell, if they want to use the one hour, you know, if Ted Cruz wants to read "Green Eggs and Ham" -- and maybe that's for the nighttime reading for the children. But as long as there's a limit, a durational limit, it's not going to frustrate the process going forward.

  • 10:52:29

    REHMAll right. To -- let's see -- Cynthia, in Silver Spring, Md. Quick call, please.

  • 10:52:38

    CYNTHIAI was glad the other caller mentioned plurality voting because I think a lot of the problems stem from our single-member districts in this country, both at the state and the federal level. And it's, I think, silly to think that one person can represent the views of 650,000 people well.

  • 10:52:55

    CYNTHIAMulti-member districts with proportional representation are used not only in other parts of the world, but I'll be glad to reassure Jeffrey, who wants to dream big, that they're used in cities very effectively now, which are often our laboratories of democracy. Big cities now are experimenting with these rank choice voting systems with multi-member districts and using it very effectively.

  • 10:53:16

    REHMAll right.

  • 10:53:17

    CYNTHIAThere's great participation and turnout and actual representation of a lot of the political spectrum, which I…

  • 10:53:23

    REHMAll right. Thanks for your call. And you're listening to "The Diane Rehm Show." Any comment, Bruce?

  • 10:53:30

    FEINTwo things, one, multi-member districts have largely been voided because they dilute the votes or the political strength of minorities, so they've been held unconstitutional under the 15th Amendment. Secondly, I don't think plurality voting really is much of a cure. If you look at it in its most extreme form in Israel, you've got such splintering of parties you don't get a consensus around anything. The Knesset, you know, it moves at a snail's pace even compared to the Congress, and, again, goes back to the larger political culture.

  • 10:53:58

    FEINIt's not necessarily the two-party system that's the bane. It's that we've come to accept extremism, the opposite of compromise and enlightened discourse, in trying to recognize that politics is about making everybody win, all Americans, not Republicans or Democrats, because we all hang together or we all hang separately. Until…

  • 10:54:14

    REHMBut we're not.

  • 10:54:14

    FEINNo. I understand, but that can change only with a changed civic culture. You, me, these programs, Jeffrey saying this is wrong. What you're doing may not be illegal. It's not being an American. We want change. Unless that happens, all the fiddling with the mechanics are not going to change the larger trend.

  • 10:54:28


  • 10:54:30

    TOOBINWell, just in terms of the question, I think it's a great idea to experiment with different voting systems. We are not -- there is nothing either constitutionally or morally or legally required about our single-member districts. And let's give other things a chance. I'm for that.

  • 10:54:46

    REHMWhat about this email -- and apparently we've gotten many like it -- "I believe gerrymandering and redistricting are at fault for the dysfunction in our government." What does the Constitution say about this, Bruce?

  • 10:55:04

    FEINWell, the Supreme Court has held, basically through Davis and Bandemer and then its sequel cases, that the Constitution is neutral. Political gerrymandering isn't required. It's not prohibited. You've got to try to work through either the Congress drawing congressional lines or the state legislatures. State legislatures vary at present. Half of them have independent commissions draw the lines, others by the state legislatures.

  • 10:55:25

    FEINAgain, my view is that a proper interpretation of the Constitution -- I actually wrote a law review article about this for the Republican National Committee -- is that you cannot legitimately have a proper interest in mind when you penalize someone politically because of their party affiliation. And political gerrymandering, when the intent is open and notorious, ought to be unconstitutional.

  • 10:55:44


  • 10:55:44

    TOOBINOh, Bruce, the Republican Party has left you a long time ago. They certainly don't believe that anymore. I mean, they are gerrymandering like crazy in every state they can and so are the Democrats. I think it's terrible, but I think these Supreme Court opinions give the states largely carte blanche to do it. And there's nothing politicians care more about than saving their own jobs, which leads to this gerrymandering.

  • 10:56:06

    FEINI know, but this Court has overruled itself 200-and-some times, and it's our job to get them overruled and see light of day.

  • 10:56:12

    REHMWhat about a…

  • 10:56:13

    TOOBINAll right. Sign me up, Bruce.

  • 10:56:15

    REHMWhat about a Constitutional amendment for term limits?

  • 10:56:19

    FEINThe term limits that have proliferated at the state level shows that its impact is virtually invisible, inaudible. People, they jump from one house to another. Willy Brown goes from the state House to mayor of San Francisco. I don't think that's really -- it's a solution in search of a problem. That's not the difficulty. We have a two-term limit on the presidency, which I think is response to Roosevelt's administration. It probably doesn't make any sense. I don't think it really addresses the core of the issue.

  • 10:56:48

    REHMJeffrey Toobin, last quick word.

  • 10:56:50

    TOOBINWell, I'd like to end on a note of agreement with Bruce. I don't see what term limits really do. They satisfy people's longing for punishing politicians as a group, but in terms of improving government, I've never seen that it really has any particular impact.

  • 10:57:06

    REHMJeffrey Toobin of the New Yorker and CNN, Bruce Fein of the National Commission on Intelligence and Foreign Wars, thank you both for a very stimulating conversation. And thanks for listening, all. I'm Diane Rehm.

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