Guest Host: A Martinez

Volunteers roll up a banner printed with the Preamble to the United States Constitution during a demonstration against the Supreme Court's Citizens United ruling at Washington, DC's Lincoln Memorial in October 2010.

Volunteers roll up a banner printed with the Preamble to the United States Constitution during a demonstration against the Supreme Court's Citizens United ruling at Washington, DC's Lincoln Memorial in October 2010.

September 17th is Constitution Day. That’s not exactly Thanksgiving or the 4th of July in most people’s calendars, but for Akhil Reed Amar the day is a moment to celebrate and reflect on how the Constitution informs the most important issues of our day. Amar is a law professor at Yale University and he thinks of himself as constitutional journalist — someone who can quickly distill and explain news events for the public while also offering a set of enduring ideas. Guest host A Martinez talks to Amar about what the Constitution says about the issues of our era.

Guests

  • Akhil Reed Amar Professor of law and political science, Yale University; author of four books, including "America’s Constitution"

Transcript

  • 11:06:54

    MR. A. MARTINEZThanks for joining us. I'm A. Martinez, co-host of Take Two on KPCC, Southern California Public Radio sitting in for Diane Rehm. Yale law professor Akhil Reed Amar says there's a tension between constitutionalism and journalism, the big battle between the "isms." Constitutional scholars think about principles adopted at the country's founding. Journalists focus on fast breaking news.

  • 11:07:19

    MR. A. MARTINEZNow, Amar's trying to bridge that gap, an idea he lays out in his new book, "The Constitution Today: Timeless Lessons For the Issues of Our Era." Akhil Reed Amar is a professor of law and political science at Yale University and he joins me in studio. Thank you very much for being here.

  • 11:07:35

    MR. AKHIL REED AMARThanks for having me, A.

  • 11:07:37

    MARTINEZAnd, of course, we'll be taking your calls and comments all hour long, just give us a call at 800-433-8850. That's 800-433-8850. You can send us an email at drshow@wamu.org or find us on Facebook or Twitter. So let's start off with this idea of constitutional journalists. That's what you call yourself. Well, I'm all for journalists having more jobs because we all really need them, but tell us what you mean and why you consider yourself one.

  • 11:08:05

    AMARWell, journalism comes from the French word, jour. The day journalists are folks who are telling us what's happening today, what's happening this hour, this minute. And when you go online, on Slate, they post the exact minute that an article appears online or on the screen. There's often just a running ticker by the second. What is news? It's like anything that happens at the same time and that time would be now. So all sorts of very discordant stuff, whether it's Syria or Hillary Clinton's health issue or just anything else happening today gets all put together and it's news.

  • 11:08:57

    AMARAnd that's important. We need to know what's happening, but we also need context. The Constitution is actually about trying to figure out how best to resolve things that are happening now by thinking deeply about principles that might have been laid down 150 years ago after the Civil War, 225 years ago in the founding era. Also thinking about how -- what we do today is going to set precedence for what's going to happen 50 years from now. So for example, since she's in the news right now, there are questions about health issues.

  • 11:09:34

    AMARWell, in this book, in Chapter 2, it's about, actually, presidents and their relation to vice presidents, health issues not just actually for presidents, but even for presidential candidates. I tell you about things that happened before. For example, remember that President Kennedy and we changed the Constitution in the wake of that. That's the 25th Amendment which changed the relationship between presidents and vice presidents. Now, a few years later, Bobby Kennedy was assassinated.

  • 11:10:16

    AMARI grew up in California. I remember that very vividly. That was -- but he was only a candidate. That happened at the end of the California primary, but if that had happened right before the general election rather than at the end of the primary, would we have amended our Constitution, our laws, to think about death or disability of presidential candidates and not just presidents themselves?

  • 11:10:39

    MARTINEZSo even though the Constitution is a document that's a couple of hundred years old, it still feels like it's something that has newsworthy value all the time.

  • 11:10:47

    AMARBecause you can't understand today's news without understanding the earlier precedents and principles that were laid down offline. We were actually just talking about how many presidents have had health issues and they haven't always been forthcoming about them. Jackie Kennedy had Addison's disease. Grover Cleveland had a secret surgery that no one knew about. It was in a yacht. How Woodrow Wilson suffered a stroke and even the vice president wasn't really told how serious that was, how Franklin Roosevelt wanted to keep, to some extent, secret his own struggles with polio.

  • 11:11:32

    AMARHe hadn't fully recovered, even though some thought he had. And all of that is actually background for the 25th Amendment, which is all about presidential disability. And so when Jack Kennedy was assassinated, there was a lot of attention paid to previous presidential precedents as we thought about what would be a sensible constitutional regime. In the case, for example, of temporary presidential disability, the 25th Amendment -- which I talk about in, actually, in great detail in the book because I know no matter what I talk about, stuff is going to happen in the news and it's going to be relevant.

  • 11:12:11

    AMARBut ideally, you want to have written about this in advance of the current issue so you know you're not playing politics. You know, you have a certain perspective about it. So the 25th Amendment, for example, provides for a really smooth hand-off, temporarily, back and forth between president and vice president. If the president's going to undergo a scheduled colonoscopy, as George W. Bush did, the 25th Amendment provides for him to temporary hand off power to the vice president and then to reclaim it once the anesthesia wears off.

  • 11:12:45

    AMARAnd we didn't have that regime in place, actually, before Dallas, before the assassination of Jack Kennedy.

  • 11:12:52

    MARTINEZAnd all this can be explained, though, and I guess that's where you come in as a constitutional journalist because some people just don’t understand that all this is already laid out in front of us.

  • 11:13:01

    AMARAnd sometimes it isn't. And, in fact, I believe that there are aspects of our constitutional -- of our presidential succession system that are -- there are aspects of it that are accidents waiting to happen. I had no idea there was going to be a new Kiefer Sutherland TV show being launched about presidential succession, but, in fact, I have a whole discussion about how our current rules of succession don't fully make sense. I'll give you an example.

  • 11:13:28

    MARTINEZSure.

  • 11:13:28

    AMARUnder the current law that's in place, a law that I believe is unconstitutional -- and James Madison agrees with me about that. He said the same thing in 1792, although most people don't know it. You should -- succession should be actually from president to vice president to cabinet officers and not, as our current statute provides, for the Speaker of the House. Here's one of the reasons why not, because if you vote for Obama and Biden, you should never end up with Paul Ryan. If you vote for George W. Bush and Dick Cheney, you should never end up with Nancy Pelosi.

  • 11:14:05

    AMARIf you vote for Ronald Reagan and George H.W. Bush, you should never end up with Tip O'Neal. If you vote for a Democratic administration, you should get Democrats all the way down, president, vice president, then their secretary of state or secretary of defense or something like that. You shouldn't actually shift partisan control and here's one reason why should shouldn't, because frankly, that's an assassination incentive waiting to happen. If you can affect regime change of a palpable sort, if something horrible were to happen to president and vice president, why should political power shift dramatically to the other party.

  • 11:14:45

    AMARAnd I'm not making that stuff up. I'll give you examples, which are talked about in the book. These are earlier precedents and the journalists don't know any of this because they don't study history and it's not their fault because they have to deal with...

  • 11:14:56

    MARTINEZIt sounds like it's a lot to know, though, for the average journalist.

  • 11:14:58

    AMARRight, because you can't be expert on anything that tomorrow's headlines might force you to focus on, whether it's Syria or pneumonia. So you can't be an expert on everything. That's the nature of news and journalism. I can study one thing in the Constitution and be ready when something happens with relevant things from our Constitution history. So, for example, let me tell you I wasn't making that stuff up about these transitions, but...

  • 11:15:30

    MARTINEZBefore you get to that, so is that why there's that tension between Constitutionalism and journalism?

  • 11:15:34

    AMARCorrect. Because Constitutionalism -- the Constitution is a short document designed to endure over the centuries, to establish first principles. And journalism is what's happening every day so there's this temporal tension between the two. So if health issues weren't in the news today, people might not want to hear about what I'm just going to tell you about the 25th Amendment and all the rest. But they might want to hear about something 'cause -- so when Abraham Lincoln is assassinated, power flows to Andrew Johnson.

  • 11:16:17

    AMARBut how many people know that actually the day of the assassination, John Wilkes Booth visits Andrew Johnson in his hotel and there are all these conspiracy theorists that Johnson is in on the thing. That's -- even though they're members, in effect, of the same political party, but they were different wings of the party and yet there were these conspiracy theorists. When James Garfield is assassinated, the assassin actually has in his pocket a letter saying, you know, I favor Arthur and Arthur will be president.

  • 11:16:46

    AMARArthur had -- Chester Arthur had nothing to do with this mad man and Garfield and Arthur were actually, again, members of the same party, but there were all these crazy conspiracy theorists. When Jack Kennedy is killed in Dallas, well, that's Lyndon Johnson's home state. And there are all these crazy conspiracy theories and that's when power flowed from people who ran together as teammates on the ticket, even if they were from slightly different wings of the party.

  • 11:17:10

    AMARAbraham Lincoln and Andrew Johnson, James Garfield and Chester Arthur, Jack Kennedy and Lyndon Johnson. Now, think about how much worse it would be for our society if, actually, power radically lurched because you -- from one party -- you voted for Ronald Reagan and George H.W. Bush and you get Tip O'Neal or, you know, you vote for Obama and Biden and you get Paul Ryan or John Boehner. Well, can you just imagine the crisis that that would put our system through? And the journalists think that's kind of interesting, but they're not going to actually focus on it unless there's something in the news that, like, focuses our attention on that.

  • 11:17:52

    AMARBut the Constitutionalist wants to write about that in advance so it's not partisan. So whether it's Republican administration and a Democratic Speaker of the House or vice versa, we try to think about where the proper principles...

  • 11:18:03

    MARTINEZHold that thought. Hold that thought. We're speaking with Akhil Reed Amar and his new book "The Constitution Today." More coming up in just a second. This is "The Diane Rehm Show."

  • 11:20:02

    MARTINEZWelcome back. I'm A. Martinez of Take Two on KPCC, Southern California Public Radio, sitting in for Diane Rehm. I'm with Akhil Reed Amar. His new book, "The Constitution Today: Timeless Lessons for the Issues of Our Era." And we'll be taking your phone calls at 1-800-433-8850. That's 1-800-433-8850. Or you can send us an email at drshow@wamu.org. Or join us on Facebook or on Twitter.

  • 11:20:29

    MARTINEZNow, Professor, we're in the middle of an election.

  • 11:20:32

    AMARYes.

  • 11:20:33

    MARTINEZHillary Clinton is running on one side and Donald Trump is running on the other. And for a lot of people, I think, one of the things they worry about when it comes to who they vote for, especially at that highest office, is are they voting for someone they voted for before? And do things really change if you do that? Hillary Clinton married to Bill Clinton, who was president of the United States. You go back to the Bushes, there is a succession line there between the first Bush and the second Bush. When it comes to what you've written in this book -- and you talk about this when it comes to presidential dynasties -- how much do we not know about how that works in terms of the Constitution?

  • 11:21:08

    AMARWell, it goes all the way back to the founding. We were talking about chapter two of the book, which is actually about presidents and vice presidents. That chapter is titled, "Nothing, But Maybe Everything." We pay no attention to Tim Kaine. And now all of a sudden we're paying attention to Tim Kaine.

  • 11:21:23

    MARTINEZYeah.

  • 11:21:23

    AMARWe pay no attention to the vice president until the vice president maybe is everything.

  • 11:21:27

    MARTINEZYeah.

  • 11:21:27

    AMARThe first chapter is about presidential dynasties. It goes all the way back to Washington and to the Constitution itself. Why does the Constitution say that a president has to be 35? Here is my answer. It says that because who would have the name recognition to be president at the age of 31 or 32?

  • 11:21:46

    MARTINEZRight, the gravitas, right?

  • 11:21:47

    AMARThe answer is, a famous son of a famous father. The 35-year-old thing is an anti-dynastic rule. Who is prime minister of England? When they come up with that rule, his name is William Pitt the Younger and he has the same first and last name as his daddy, he was prime minister, William Pitt the Elder. And William Pitt the Younger, who was the prime minister when they come up with that rule, is -- at the age of 21, he enters Parliament. At the age of 24, he becomes prime minister. And he might be good and he might be bad, but he's getting it because of his daddy's name.

  • 11:22:22

    AMARWhy is George Washington the unanimous selection of everyone, in part -- why is he a father of his country? Because he has no son of his own. He's not going to try to create a throne because he's got no one to give it to. He actually says that in his first -- in the first draft of his first inaugural address, he says, Trust me because I've got no one to hand it to. And of the early presidents, you see Thomas Jefferson has no sons, at least that we know about -- legitimate sons...

  • 11:22:46

    MARTINEZThat, yes.

  • 11:22:46

    AMAR...that bear his name. James Madison, no sons. James Monroe, no sons. Now, John Adams, you see, he has a son and his name is Q -- John Quincy -- as in W.

  • 11:22:56

    MARTINEZMm-hmm.

  • 11:22:56

    AMARAnd he does become president. But here's the point, he becomes president only when he has a track record of his own. Thirty-five means you're not getting it just because you're the kid brother or the son of some favorite politician that we like. You have a track record of your own. So 35 is about anti-dynasty and about public service. Now, let's think about...

  • 11:23:18

    MARTINEZSo it's in the Constitution to be anti-dynasty.

  • 11:23:21

    AMARYes. But, you see, it doesn't say it in so many words.

  • 11:23:22

    MARTINEZYeah.

  • 11:23:23

    AMARIt says 35 and you -- we need to know what the principles were behind the word so that we can vote for whoever we want. They're all eligible. But the Constitution is telling us, be concerned about dynasty. Judge people on their own track record. Now, is Hillary Clinton dynastic or not? Now, on the one hand, she's partnered up with Bill. On the other, she wasn't born into it...

  • 11:23:48

    MARTINEZMm-hmm.

  • 11:23:48

    AMAR...the way George W. Bush was born into power. His father was the president. His grandfather was senator. You know, his brother was governor of Florida. He was born into a political dynasty. And I don't want to be partisan about it. We could talk about Bobby Kennedy and Ted Kennedy. We could talk about Andrew Cuomo, whose father Mario Cuomo ran for the presidency and was married to Bobby Kennedy's niece -- I mean, Bobby Kennedy's daughter, excuse me, Kerry Kennedy. So it was on both sides. Mitt Romney's father ran for president, George Romney. Al Gore's father was a senator.

  • 11:24:26

    MARTINEZSenator, yeah.

  • 11:24:26

    AMARDynasties are rising up among our midst. Now, is Hillary dynastic or not? She wasn't born into it, that's one point. She partnered up with Bill and, in that respect -- here's an interesting analogy, because when people sort of partner up and they're not born into it, it's not blood and birth -- whom -- George Washington doesn't have a son, but he picks, in effect, his successor. That would be Alexander Hamilton. He picked someone to sort of partner up with. Thomas Jefferson picks James Madison. Maybe the relationship with Bill and Hillary is more like that between a Washington and Hamilton or between a Jefferson and Madison. But we won't even begin to ask these relevant questions unless we actually understand our constitutional history.

  • 11:25:14

    MARTINEZSo it's there, though, in the Constitution to avoid it. But it still seems to be happening.

  • 11:25:19

    MARTINEZThere's the difference between the letter and the spirit. And everyone is formally eligible. And Donald Trump, his father didn't run for president. Neither did, you know, his wife or his ex wives. But he's born into great power and wealth. He is The Donald, as in The Earl, The Duke, The Baron. His son is even named Barron.

  • 11:25:42

    MARTINEZMm-hmm.

  • 11:25:43

    AMARSo, yes, they are telling us in the document, be wary of dynasty, be concerned about it. Because they didn't use that word, dynasty, they used a specific rule, 35. Many Americans today don't even know that that's something that we actually should be concerned about if we pay -- if we learn from what the Constitution actually -- the experience that generated it was. Not just the Constitution's letter but it's spirit. It's spirit was actually saying, everyone after 35 is eligible. You can vote for John Quincy Adams.

  • 11:26:16

    MARTINEZHmm.

  • 11:26:17

    AMARBut be concerned about this. Pay attention to it. And 35 says definitely one thing, someone better have a track record of their own, not just a famous name. Now Trump is -- of course he's plenty old. He's the oldest presidential candidate, you know, ever at age 70. Does he have a track record of public service on his own? So there are the rules of the document and then there are also these larger principles underlying the rules.

  • 11:26:46

    MARTINEZI wanted to get to an email from Scott in Ann Arbor, Mich. Is the Constitution a document that should be reinterpreted as time goes on? Or is it a static and only changed and reinterpreted when it is amended?

  • 11:26:58

    AMARWell, Scott, thanks so much. I was born in Ann Arbor, speaking of, you know, birth.

  • 11:27:05

    MARTINEZGo, Wolverines.

  • 11:27:07

    AMARMGoBlue.

  • 11:27:08

    MARTINEZA lot of Michigan guys out there.

  • 11:27:10

    AMARSo here's one really important thing. Even if you don't think the Constitution should just evolve, loosey goosey, with judges coming up with rules on their own, the Constitution does change because we've adopted Amendments. And those Amendments are really important. At the founding, black people didn't have a right to vote or be -- and therefore be voted for. But the 15th Amendment changed rules and that gives you President Barack Hussein Obama. At the founding, women didn't have a right to vote or be voted for. And that gives you -- but it was amended, the 19th Amendment, to do that, and that may give you President Hillary Rodham Clinton.

  • 11:27:56

    AMARThe 19th Amendment's going to change how we think about first ladies, because Abigail Adams is really smart. She's a political operative. So is Dolly Madison. So is Mary Lincoln. But they're never going to be able to succeed their husbands -- John Adams, James Madison, Abraham Lincoln -- because women in the earlier constitutional era can't do that. But because of the 19th Amendment, now a woman can be out there politically. Eleanor Roosevelt plays her role differently than Abigail Adams did. And Hillary Clinton can actually run for president. And that's because our Constitution changed. The 19th Amendment changed the rules.

  • 11:28:36

    AMARSo even if you don't think it just evolves through interpretation, it definitely changes through Amendments which have radically changed our system and made it much better. We have made amends for some of the sins of the founding fathers. Two other quick points.

  • 11:28:51

    MARTINEZYeah.

  • 11:28:51

    AMARYou have to apply the principles to -- the same enduring principles to new technologies. It says freedom of the press, that's printing presses, but now you have to think about radio and television and the Internet and whatever the next generation is going to be. Finally, some clauses of the Constitution actually tell you to pay attention to society as it changes. It says, No cruel and unusual punishment. Well, the death penalty is becoming increasingly unusual. It was very common in the earlier era. It's less common today. So at some point, it may become unusual and therefore unconstitutional.

  • 11:29:26

    MARTINEZAll this -- are things, as we just mentioned earlier, that journalists don't get a grasp on. They just say...

  • 11:29:32

    AMARAnd it's not your fault. I know, well...

  • 11:29:34

    MARTINEZThanks. There's a lot I need to be forgiven for. That's also one of them. But -- so...

  • 11:29:41

    AMARBecause you can't be...

  • 11:29:41

    MARTINEZIt's impossible, right? It's impossible.

  • 11:29:43

    AMARYou can't. Because the nature of the news means anything that happens tomorrow, you know, whether it's, you know, physics or pneumonia or, you know, nuclear power -- anything -- Syria. You have -- it's just whatever the tomorrow's headlines bring us.

  • 11:29:58

    MARTINEZAs journalists, you think we have been unprepared to deal with interpreting the Constitution or figuring out how that document that is a couple of hundred years old still is something that we need to kind of filter and decipher today?

  • 11:30:11

    AMARWell, you know, I love this show and a big shout-out to Diane, who's, you know, been such a supporter over the years. This show is special because it recognizes that because you aren't experts on everything, you bring people who are. You vet them. You actually pick people who are serious. You try to bring people on all sides of the political spectrum. And then you give us more than 15 seconds to actually begin to unfold an argument so that your audience, therefore, can actually be more informed and educated after your show than before.

  • 11:30:42

    AMARSo I think journalists, at their best, are -- they're non-experts, but they're gatekeepers. And their job is actually to find experts on whatever today's news generates. And I think this show is a national treasure because it does that better than or as well as anything else around.

  • 11:30:59

    MARTINEZBecause one of the things in the last couple years is that...

  • 11:31:01

    AMARAnd you have an amazing audience too.

  • 11:31:02

    MARTINEZOh, absolutely. On television, on radio, we're always waiting to hear, oh, is this constitutional? Is this unconstitutional? It seems like the biggest -- one of the biggest questions, journalistically, of our time, figuring out exactly what is constitutional and what isn't.

  • 11:31:16

    AMARRight.

  • 11:31:16

    MARTINEZBut we get it wrong a lot, don't we?

  • 11:31:18

    AMARAnd I have to fault also scholars. Because some of us constitutional scholars and other scholars who are only talking to other specialists and other experts, and we're not actually ready to engage our fellow citizens. I think, though, the Constitution, it came from the people. The first words are, We the People. It's amendable by the people. It's short so people can read it. Given that's my philosophy of the Constitution, I feel a special obligation to write and to speak for my fellow citizens and try to engage them whenever they're ready to listen.

  • 11:31:49

    MARTINEZI'm A Martinez. You're listening to "The Diane Rehm Show." If you'd like to join us, give us a call, 800-433-8850. Send us an email to drshow@wamu.org. Or find us on Facebook or send us a tweet.

  • 11:32:04

    MARTINEZLet's go out to Kenneth in Charlotte, N.C. Kenneth, you're on "The Diane Rehm Show."

  • 11:32:11

    KENNETHHow are you doing?

  • 11:32:11

    MARTINEZHi, Kenneth. Go ahead.

  • 11:32:15

    KENNETHYes, sir. I was -- we're actually on our way to work and I'm listening to your program. It's a great show by the way. I'm listening, you know, this guy speak about various constitutional violations and, you know, I'm looking at how government or certain agencies are operating or doing certain things that are unconstitutional right in the face of the public. And I'm wondering, you know, how is it that they're able to do this? Is it, by chance, that they are able to operate in a separate jurisdiction through contract law, because the Constitution says that no state shall impair the obligation of contracts. What's your thoughts on that?

  • 11:33:01

    MARTINEZKenneth, thanks a lot for the phone call.

  • 11:33:03

    AMARWell, greetings. Since you mentioned you're from North Carolina, I think there are some real serious constitutional issues, especially in North Carolina, and it connects to what Scott said before. The original Constitution has nothing about the rights to vote. It talks about freedom of -- about Obligations of Contract, but nothing about the right to vote. And that's because the original Constitution was borne in a slavery system. Since then, no fewer than five constitutional amendments -- the 14th Amendment, Section 2, the 15th Amendment, the 19th Amendment, the 24th and the 26th Amendment all affirm a right to vote. So Scott, that's how our Constitution is really different than what it was before.

  • 11:33:42

    AMARAnd that right to vote is under assault in places like North Carolina. And judges, of late, have begun to try to defend the rights to vote in North Carolina. And, God bless them, good for them. The people in North Carolina actually -- the Reverend Barber and others have actually fought for that right. And the United States Supreme Court blew it. In one of the worst decisions of all time, a case called Shelby County, the United States Supreme Court, in the modern era, in validly struck down a portion of the Voting Rights Act of 1965.

  • 11:34:17

    AMARAnd they did so because five of the nine justices has insufficient sense of history about why the right to vote got put in the Constitution, why we needed that 1965 Voting Rights Act, how important it was. And if -- because I like the justices a lot. Many of them are friends of mine. They're not constitutional scholars either. They have to deal with whatever...

  • 11:34:37

    MARTINEZWhat? It sounds like they would have to be.

  • 11:34:38

    AMAR...cases come...

  • 11:34:39

    MARTINEZRight? They would have to know a lot more than the average person.

  • 11:34:41

    AMARBut they do. But they -- they're like journalists in that they have to deal with every case that comes before them, whether it's anti-trust law or administrative law or contract law or civil procedure. They can't be experts on the Constitution because many of the cases that they're -- they're not constitutional scholars. They're judges who have to decide any and all legal cases that come before them. So I don't blame them in the following sense. They can't be experts on everything. And many of us -- so our scholars have not actually always been writing for the judges and the public. We've just been writing for other scholars. And that's a mistake. Because journalists need help and so do judges.

  • 11:35:25

    AMARAnd five of the nine blew it big time in Shelby County. And the real constitutional violations that I think are occurring today in South Carolina, many of them connected to the right to vote.

  • 11:35:38

    MARTINEZProfessor, do you realize what kind of an ego boost you just gave journalists by putting them on the same level as a Supreme Court Justice?

  • 11:35:43

    AMARWell, and I actually -- in a chapter, chapter four, in fact, I begin by comparing the journalists with the judges and then saying, to some extent, both of you all just, you have to react to current events. And your generalists. And generalists can't be experts on everything. And it's not your fault.

  • 11:36:03

    MARTINEZWell, there's going to be a whole bunch of journalists out there that now are going to puff their chests out and say, there you go. The professor's put it out there plainly for everyone. We are at the same level. But you know what? It's actually...

  • 11:36:14

    AMARExcept they get paid better.

  • 11:36:16

    MARTINEZThey get paid better, yeah. Sure they do.

  • 11:36:17

    AMARAnd they've got life tenure.

  • 11:36:18

    MARTINEZThat's true. But, you know, and I want to get to this coming up. Because I'm wondering how the Constitution, over the year, it seems like it's more muddled at least for the average person to try and figure out. You just heard Kenneth there, in Charlotte, N.C. He sounds like a reasonably intelligent person. Yet he has as much confusion as maybe journalists do or maybe even members of the Supreme Court. You know, so I want to get to that coming up...

  • 11:36:39

    AMAROkay.

  • 11:36:40

    MARTINEZ...in just a bit as well. We'll take your calls at 800-433-8850. That's 1-800-433-8850. You can also email us, drshow@wamu.org. That's drshow@wamu.org. Or you can find us on Facebook and Twitter. You can actually tweet me @AMartinezla, that's @AMartinezla. I'm A Martinez filling in for Diane Rehm. We'll be right back.

  • 11:40:02

    MARTINEZWelcome back. I'm A. Martinez of Take Two on KPCC, Southern California Public Radio, sitting in for Diane Rehm. We're with Akhil Reed Amar. His new book, "The Constitution Today: Timeless Lessons for the Issues of Our Era," and you can always get a hold of us a bunch of different ways, 800-433-8850, that's 800-433-8850. You could email us, drshow@wamu.org. Or you can find us on Facebook and Twitter, and you can find me @amartinezla.

  • 11:40:30

    MARTINEZSo Professor, we were talking about Supreme Court justices. There are eight of them right now. That is an even number, and that sounds and has been a problem. How big of a problem do you think it is right now?

  • 11:40:42

    AMARAn even number, how odd. So -- and that's my joke about the first Supreme Court because here's a kick in the head. The original Supreme Court, because the Constitution doesn't specify the number, its text doesn't, the original Supreme Court, when George Washington is president, has six members.

  • 11:41:02

    MARTINEZAn even number.

  • 11:41:02

    AMARAn even number, how odd. And the size of the Supreme Court has been as low as five and has been as high as 10. And when Franklin Roosevelt tried to jigger the thing -- it sort of settled at nine, and when he tried to modify that, go up to as many as 15, he failed in that effort. That's the famous court-packing plan of 1937. The new books -- whoever asked that question, thanks for asking -- does have a couple of essays on the Garland vacancy. And truthfully I think the Supreme Court can limp along at eight. I think our country would be better served, obviously, with nine.

  • 11:41:50

    AMARI hold Merrick Garland in very high regard. He is -- and here is what I...

  • 11:41:58

    MARTINEZBut we seem paralyzed, don't we? I mean, if the Constitution doesn't specify how many, why do we seem paralyzed that there are eight?

  • 11:42:03

    AMARWell, I don't think we are paralyzed. I think -- as I said, we might be limping along, and we'd be better at nine, but here's why we seem paralyzed, because the -- we have divided government, and the president, you know, he says, well, I've made the nomination, and I was elected in 2012, and the Senate said, yes, but we are Republican-controlled, and we were elected in 2014, so it's kind of a standoff. Democrats won in 2012, Republicans ran in 2014, here's what the Republicans in the Senate in effect say, let's have a tiebreaker, let's put it to the people in 2016, and then whoever wins will fill that seat.

  • 11:42:51

    AMARAnd I say okay, that's not implausible, but listen, if the people in 2016 are going to decide, if they vote for Trump, it's going to be filled by a Republican, if they vote for Hillary it's going to be filled by a Democrat, fine, but let's have the people be informed the same way that we were talking about before, journalism informs people. How do we inform people? Let's at least have hearings now, and people who are opposed to Garland can make their case, and people who support him can make their case, and we can hear directly from him, and then your audience, we the people, the voters, can actually decide after having actually learned something more about the Supreme Court. Let's use this as a news event, as an opportunity to actually, again, inform the public about the nature of the Supreme Court, about Merrick Garland, about which constitutional issues are in play.

  • 11:43:37

    AMARLet me go back one more time to what Scott and Kenneth asked. Scott said, well, does the Constitution sort of evolve, and Kenneth wanted to know about contractual rights. And I didn't want to talk so much about contractual rights. Here's why, and it's my answer to Scott. The original Constitution talked a lot about contract and property, and it protected slavery. And we amended it to actually emphasize more equality and democracy, five times a right to vote, a right of black people to vote and to be voted for, Barack Hussein Obama, a right of women to vote and be voted for, Hillary Rodham Clinton.

  • 11:44:09

    AMAROur Constitution today is much more about the right to vote and democracy. At the founding it was much more about property and contract. Now that's my vision. Other people might have a different constitutional interpretation. Let's hear what Merrick Garland's is. Let's hear what his critics say. I'll say one other thing.

  • 11:44:23

    MARTINEZHow likely is that, though, at this point?

  • 11:44:25

    AMARLet's hear what he has to say about Citizens United. In fact in this book, I defend, believe it or not, Citizens United, even though I'm, you know, a very big believer in equality. Citizens United is in part about the relationship between property and democracy. I actually am willing to defend that. I'm willing to defend other conservative causes like a right to have a handgun in your home for self-protection. The Constitution doesn't interpret itself. It is -- there -- I think some answers often are better than others, there are right and wrong answers, but I'm going to need to make arguments for that, people are going to hear on the other side.

  • 11:44:57

    AMARConfirmation hearings for Merrick Garland would be a wonderful opportunity for the people to actually learn some more about different views that are being put forth by different folks about the Constitution.

  • 11:45:10

    MARTINEZWell, you said the Constitution doesn't interpret itself.

  • 11:45:11

    AMARIt does not.

  • 11:45:13

    MARTINEZThen it just -- how do we figure out what we do when a constitutional question comes up?

  • 11:45:18

    AMARSo I wrote this book precisely because I believe that ordinary citizens actually can do constitutional law, they just need to be shown how it's done in the same way that you learn how to play chess by maybe reading someone, taking all the great chess matches of the last 20 years and sort of annotating them and explaining them to you. What I've tried to do is take all the constitutional questions, or the big ones, of the last 20 years, Bush versus Gore, the Clinton impeachment, O.J., a Senate filibuster reform, presidential selection, the electoral college.

  • 11:45:56

    AMARI've tried to actually, in pieces written journalistically for my fellow citizens, sort of tried to lay out for you at least my view of what the Constitution really says and how you go about interpreting it.

  • 11:46:09

    MARTINEZLet's stay in North Carolina. John in Raleigh, North Carolina.

  • 11:46:14

    JOHNHi. Thanks for taking my call.

  • 11:46:16

    MARTINEZSure, John.

  • 11:46:16

    JOHNGreat conversation. I heard your guest mention that, you know, the Constitution needs to come up -- stay up with the times, you know, stay up with the new technologies of the day. And your example was applied to the First Amendment, i.e., you know, it's not just about the written word being pressed on paper, but the communication of that word on the Internet needs to also be protected.

  • 11:46:35

    JOHNSo understanding that framework, I'd like to know how you apply that to other amendments, specifically the Second Amendment, and with that same framework, would the assault weapon ban that's in some states be constitutional?

  • 11:46:51

    AMARSo, great question, John. I believe -- so sometimes I side with liberals, sometimes with conservatives. Here's my militantly moderate position.

  • 11:47:04

    MARTINEZMilitantly moderate, okay.

  • 11:47:06

    AMARThat there is a right to have a handgun in one's home for self-protection, and so the Supreme Court was right twice when, by five-to-four votes in which it was the conservatives against the liberals in a case called Heller and a case called McDonald, the Supreme Court affirmed a right to -- for an ordinary person to have an ordinary handgun in a home for self-protection, and once that right has been established, as it has, and actually the justices cited some of my scholarship in the -- in that case law, we should have reasonable, sensible gun control.

  • 11:47:39

    AMARWe can -- we should limit the number of guns you can acquire and the kind of ammo you can use, and do you really need an assault weapon to protect your -- your home? And here's the irony, and this is a piece that I wrote right after the Newtown tragedy, and Newtown is in my backyard, I'm in Connecticut, it's one town over, precisely because the Supreme Court has made clear that the Constitution rightly understood does protect a right of an ordinary person to have a gun, handgun in the home for self-protection, we can have all sorts of regulation, and people shouldn't be afraid that every regulation, howsoever sensible, you know, loophole-free background checks and the like, is the first step on a slippery slope that will lead to total confiscation and then, you know, we'll be jackbooted, the government will be jackbooted thugs.

  • 11:48:30

    AMARNo, the Supreme Court won't let that happen, and so now, precisely because total confiscation is off the table, let's actually have a conversation about reasonable gun control, again background checks, regulations about the kind of weaponry you can acquire, the kind of ammunition, there's not a right to an automatic weapon, a machine gun in one's home. So that's my moderate -- my militant moderate position.

  • 11:49:03

    MARTINEZWe'll get to more hot-button issues of our time coming up. I want to get in this email from Ian. I know that President Obama taught courses in constitutional law. What kind of impact do you think the depth and character of his understanding of the Constitution had had on his presidency?

  • 11:49:18

    AMARSo the first thing that a president has to do under the Constitution itself is to raise his or her right hand, in effect, and say, quote, and this is in the Constitution, it's a short document, and they specified it word for word for word, I do solemnly swear that I will faithfully execute, you know, the office of president of the United States and will to the best of my ability preserve, protect and defend the Constitution of the United States. Okay, and you can add so help me God or not, and I talk about that, you can be very religious or not, both are permissible, but a president needs to understand the Constitution.

  • 11:49:51

    AMARThe president plays many roles, commander in chief, vetoer in chief, pardoner in chief, State of the Union message person in chief, communicator in chief, head of the free world, all these roles.

  • 11:50:05

    MARTINEZThey need to understand the Constitution, you said.

  • 11:50:05

    AMARBut you have to be a constitutional interpreter in chief.

  • 11:50:08

    MARTINEZNot a scholar, constitutional scholar, you don't have to go that far?

  • 11:50:10

    AMARWell, you should surround yourself with people -- George Washington was not a constitutional scholar, but he had Alexander Hamilton on his right and Thomas Jefferson on his left, and so you -- just like journalists have to, they're gatekeepers, they have to figure out who they should pay attention to and listen to, and judges need to know whom they should be citing because they can't be experts on everything, presidents need to take the Constitution seriously, and if they are not law-trained, and Clinton was, and I think he actually has an excellent grasp of constitutional principles, and Hillary Clinton actually has thought a lot about the Constitution.

  • 11:50:45

    AMARMy own view, excuse me, is Donald Trump not so much. And I don't think he's surrounded himself with people whom I regard as really serious constitutionalists. But that's his first job as president, or her first job, is to swear an oath to preserve, protect and defend the Constitution of the United States.

  • 11:51:02

    MARTINEZWell, considering, then, what we know about President Obama and how -- mentioning how he taught constitutional law, has he been the most apt constitutional president that we've had in a while, when it comes to just knowing the Constitution in and out?

  • 11:51:15

    AMARI think he's been a very good one. I think we've had other very good ones. I'm -- I don't want to be partisan. I think Ronald Reagan has certain greatness and surrounded himself with impressive people and was governor of California for eight years, which is training. He actually had a history of public service. Every single president we've ever had has had a history of public service, and you can judge them in part by how they've discharged their earlier public offices, whether they've been constitutionally faithful in other things they've done in public life.

  • 11:51:52

    MARTINEZI'm A. Martinez. You're listening to the Diane Rehm Show. We're speaking with Akhil Reed Amar, professor of law and political science at Yale University. His new book is called "The Constitution Today: Timeless Lessons for the Issues of Our Era." And you can always get a hold of us, 1-800-433-8850, that's 1-800-433-8850. And email us, drshow@wamu.org.

  • 11:52:15

    MARTINEZSo we heard about gun control just a few minutes ago. Now when it comes to same-sex marriage, let's talk about that for a second. You say that your longstanding views have prevailed when it comes to same-sex marriage and the Constitution. Why did it happen when it did?

  • 11:52:31

    AMARSo the Constitution itself, in the 14th Amendment, says that everyone born in America is born a citizen of the United States, birthright citizenship. That's the codification of Lincoln's view, expressed in Gettysburg, that this nation is dedicated to the proposition that we're all born equal, we're all created equal. What does that -- what does that mean? Are those just words? No, here's what I think it means. I think it means we're born equal, black or white, and that's the core meaning of the 14th Amendment, but it also means we're born equal whether we're born with two X chromosomes or an X and a Y, we're born equal male or female, we're born equal whether we're born in wedlock or out of wedlock, we're born equal whether we're firstborn in our family or sixth-born, the government shouldn't be favoring the firstborn with laws about primogeniture and entail.

  • 11:53:29

    AMARWe're born equal whether we're born Jew or gentile. Mr. Trump, we are born equal whether our parents were here legally or not, whether we are born to citizen parents or non-citizen parents. We're all birthright citizens, Mr. Trump, and he doesn't understand that, since you asked me about who understands the Constitution, and now here's the kicker. I believe, and this is my longstanding view, and the Supreme Court has now endorsed in a case called Obergefell, that we're born equal whether we're born gay or straight. Birth equality is a very profound enlightenment principle.

  • 11:53:58

    AMARNow, well, Professor, why didn't they, you know, then why did it take until 2015 for that to happen? In part because the framers of the 14th Amendment didn't know some of the things that we now do. They didn't necessarily know that people perceive themselves as being born gay, People being born that way. They thought, for example, that segregation might be okay not because they didn't believe in birth equality but because separation -- segregation might actually be equal, might be preferred by blacks and whites the same way that in sports we have separate sports teams for men and women, and we might think men and women both prefer that, women's gymnastics versus men's gymnastics.

  • 11:54:36

    AMARSo -- so they had certain assumptions about what really would be equal, and we don't necessarily have the same assumptions, just like the death penalty maybe was common then, and it's becoming unusual now. But here's the principle. The principle is birth equality. And now the question is are people born gay or straight.

  • 11:54:55

    MARTINEZWell, it sounds as if the text of the document, even though it is a few hundred years old, still is something that is open for that interpretation years and years later.

  • 11:55:03

    AMARIt has these deep, profound principles, radical principles, this enlightenment idea that you should -- we are all born equal. We're still actually working out all the radical implications of this radical, enlightenment, democratic, egalitarian, constitutional project. And so that's been my longstanding view. I'll do it a different way because the Constitution actually got amended to add the word sex in the 19th Amendment, and the framers of the 14th Amendment, actually I do believe, believed in sex equality, but there have been other amendments that have reinforced that.

  • 11:55:39

    AMARNow a woman can vote, women can vote, and -- and run for president. Here's another way of understanding same-sex marriage, that it's a form of sex discrimination to say that John can marry Pat, if Pat is Patricia, but John can't marry Pat if Pat is Patrick. And by the way, people today, and this wasn't true at the time of the 14th Amendment, people who are born male can become female, and people who are born female can become male. And that wasn't true in the founding era or even at the time of the 14th Amendment, is true for us today.

  • 11:56:17

    AMARSo these deep constitutional principles of liberty and equality have to be applied, just like they have to be applied to radio and the Internet and to new surveillance technology under the Fourth Amendment and all the rest, we have different understandings of human sexuality, of legal and medical gender.

  • 11:56:39

    MARTINEZI will still defer to you, Professor, when it comes to the Constitution, but reading the book, I felt myself getting closer and closer, if someday I could ever become a constitutional journalist.

  • 11:56:47

    AMARWell, that's what I want. This is a book saying -- it's actually -- I'm the stupid one of the kids in our family. I have a brother, he's a brain surgeon, you know, and he's always telling me, listen, my friend, constitutional law is not brain surgery, it's not rocket science. He is right about that. Too many scholars write only for scholars. The Constitution was written for ordinary people, and this book is designed to make it easier for journalists and your audience to actually join the constitutional conversation.

  • 11:57:20

    MARTINEZAkhil Reed Amar, his new book is called "The Constitution Today: Timeless Lessons for the Issues of Our Era." Thank you very much for joining us.

  • 11:57:25

    AMARThanks for having me, A.

  • 11:57:26

    AMARI'm A. Martinez of Take Two on KPCC, Southern California Public Radio. I'm sitting in for Diane Rehm. Thank you very much for listening.

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