Constitutional Politics in the New United States Lecture PDF

CONSTITUTIONAL POLITICS IN THE NEW UNITED STATES -- LECTURE CAPTIONS - Hey, it\'s Austin Allen and this is a video post for history. 0:01 - 1305 and what we are going or not? 0:05 - History 1305 jeez. Um, history 3332 American constitutional history, history 1305 is U.S history two 18...

CONSTITUTIONAL POLITICS IN THE NEW UNITED STATES -- LECTURE CAPTIONS - Hey, it\'s Austin Allen and this is a video post for history. 0:01 - 1305 and what we are going or not? 0:05 - History 1305 jeez. Um, history 3332 American constitutional history, history 1305 is U.S history two 1877 which is not this class. 0:09 - You\'ve already had that class, um, or um, some equivalent of it. 0:21 - So I apologize for that. 0:26 - Anyway, um, what we\'re going to be talking about today and this was going to be right, is, um, constitutional politics in the new United States. 0:27 - And I, I\'m going to slow down a little bit because I\'ve been powering through background for the, 0:35 - I guess, the last like three lectures doing, uh, you know, 0:41 - like colonial stuff and revolutionary stuff and getting the Constitution ratified 0:46 - and going through the constitutional convention and just kind of just driving, 0:51 - um, and this one, uh, we\'re going to go a bit slower. 0:55 - Uh, and, uh, mainly I want the my main goal here is to lay out some conceptual stuff. 0:59 - I\'ll talk about, um, some kind of developments. 1:04 - We\'re not going to get past really like 1794 or so. 1:08 - So it is going to kind of. Slow down in the sense that we\'re not covering spans of years. 1:12 - But really, 1:19 - what I want to do is kind of lay out how we\'re going to talk about the concept or how I\'m going to talk about the Constitution in this class, 1:21 - how I\'m going to encourage you to think about the Constitution, um, in this class. 1:28 - Um, and, um, and so the reading, um, fair, uh, what is her name? 1:34 - Farah Peterson. I keep thinking Farah is the last name. Farah Peterson\'s essay. 1:43 - It\'s a little long. Um, and it\'s got a lot. 1:48 - It\'s a it\'s. 1:52 - Constitutional history and legal history is interdisciplinary in that um, historians, um, are working with, uh, with people in the legal academy. 1:55 - Uh, many of those guys are also people with PhD, um, um, PhDs in history. 2:06 - And I\'m using guys in a gender neutral, gender neutral sense. 2:13 - Many of those people, male scholars, are um, uh, um, they have PhDs in history, uh, and, um, that kind of thing. 2:16 - Or they were maybe they don\'t have PhDs in history, but they were undergraduate history majors. 2:25 - The legal academy is kind of unique because they pull they pull people from all kinds of different disciplines. 2:29 - So maybe you are an accounting and you want to be a lawyer. Maybe you\'re a historian or a philosopher or something like that. 2:37 - You want to be a lawyer, you go into law school so you can have your undergraduate degree in any kinds of things. 2:41 - Uh, it doesn\'t just have to be a legal studies or anything like that. 2:47 - Um, and then they bring the ones that go on to become scholars, which is a minority of people that go to law school. 2:50 - But the ones that do go on to become, um, scholars, uh, and, you know, war professors, 2:57 - uh, a lot of times they bring those interests into their, um, writing. 3:03 - Uh, and, you know, a lot of times they go on and get advanced degrees and the those, those things, uh, as, as well. 3:09 - And so we\'re going to, um, read occasionally things from, um, law reviews. 3:15 - I don\'t think it\'s most stuff because law reviews are one. They\'re kind of long. 3:21 - And then two, um, legal scholars have different sets of concerns oftentimes, which are, um, not particularly useful in teaching this, this class. 3:25 - So a lot of times they\'re, they\'re interested in kind of methods of constitutional interpretation, 3:37 - or they\'re interested in understanding contemporary, um, policy questions. 3:41 - And the history that they do. Um, is, is, is turns out not to be particularly useful or limited in some ways, but that\'s not all of it. 3:46 - And occasionally there\'s good stuff. And this one is good. Uh, and I really liked Phares. 3:55 - Uh, um, Peterson\'s piece, um, and, um. 4:00 - And I think I think there\'s too much of it. I think it could have been 20 pages in that 50 pages. 4:07 - But that\'s another thing about war reviewed articles there really, really long. 4:12 - Um, and they have these enormous footnotes where they\'re also writing all kinds of stuff in the footnotes and things like that. 4:16 - Um, which you could probably just kind of not pay any attention to, uh, um, in that or, 4:23 - you know, you might see what sources they\'re citing or something like that, 4:31 - but they\'ll a lot of times in there, they\'ll talk about kind of debates with other legal scholars and things like that. 4:33 - And um, and a lot of that stuff would be all Greek to you because you don\'t know those debates and things like that if you need to know them. 4:40 - And I think it\'s important. I will tell you about them. I\'m going to do one of those, um, this time. 4:49 - But, um, mainly you just kind of want to follow the big the big argument and her argument is, is that, um, 4:55 - there is constitutional interpretation going on outside of elite centers of politics among debtors and other people. 5:03 - And the way that manifests itself is, um, you know, crowd activity with white men dressing up as Native Americans. 5:13 - Uh, and they are enforcing a particular set of constitutional values, 5:21 - which is kind of at variance with the understandings of people like George Washington and Alexander Hamilton and things like that. 5:28 - And so, um, all I really want you to see from this article is that the that like the production of constitutional meaning and the, 5:35 - the process of constitutional interpretation is not just the province of the courts, um, or of, um, 5:47 - political elites, uh, that there\'s also a lot of popular, uh, under understanding, you know, and, um, 5:58 - and some of that stuff you might be comfortable with and some of that stuff you might be uncomfortable with, 6:05 - because some of the expressions of, uh, um, 6:11 - popular constitutionalism as I kind of use it in the, in this class, uh, sometimes the people that are forwarding that are, 6:14 - you know, associated with the Ku Klux Klan, uh, and, and stuff like that. 6:21 - It doesn\'t have any inherent political content or anything like that. 6:24 - It\'s just that, um. The understanding of the Constitution is much broader than what is articulated by people holding government office and, 6:28 - you know, in the courts and things like that, 6:44 - although those people are important and we\'re going to talk about them, um, and um, and uh, so anyway, let me go ahead and get to this first slide. 6:46 - Um, and um, and what we\'re going to do here is I\'m just going to kind of, sort of, 6:56 - kind of try to lay out how I think about the Constitution, how it\'s going to inform me teaching going forward. 7:00 - Um, and, uh, and then also, uh, about the upcoming paper, which is going to kind of introduce you to that in a, in a relatively simplified way. 7:09 - Um, uh, and I\'ll explain that in a second. 7:21 - Um, and also using a topic which is one is my go to topic. 7:25 - And so if you\'ve had me before, um, I probably had you write something about, uh, um, slavery. 7:30 - Um, and what that is, is because it\'s in my comfort zone. 7:37 - Because that\'s where I do my research and writing. 7:40 - Uh, the other one, especially in Constitution class, it makes thinking about constitutional interpretation, um, relatively easy to do. 7:42 - Um, uh, because there\'s a. Different options, so I\'ll talk about that in a second. 7:50 - Teams thinks I need to do something and it is. Butting in on my. 7:59 - Um. All right. So. Let\'s talk a little bit about theories of constitutional interpretation. 8:04 - And then we\'re really here. I\'m kind of talking about, um, theories that emerge in the 20th century to explain what judges are doing. 8:15 - Um, uh, and it\'s not something that\'s like unique to the 20th century, however, 8:26 - it becomes more elaborate and more systematized, more explicitly theorized than writers were doing before. 8:30 - Um, uh, and, um, and basically the problem that, that they\'re trying to deal with is, um, how do you have an off judicial discretion? 8:38 - That is, how do you know a judge, when they are interpreting the Constitution, are actually being faithful to the meaning of the Constitution? 8:50 - Um, or at least not just following their own policy preference. 8:59 - Um, and reducing law to just, you know, whatever a judge happens to say it is. 9:04 - Is there a principled way that you can do that? 9:09 - And this becomes really important in the 20th century. And we\'ll get to this later, because in the 20th century, um, 9:14 - there comes a lot of doubt around the idea that I can just read a text and figure out what it means, 9:21 - and I can articulate that meaning, and that meaning is independent of me. 9:31 - You know, I\'m seeing like, um, kind of absolute truth. 9:37 - And if I work hard at it, I can see it, or at least I can see the truth enough for this and, 9:40 - um, that I can be objective and my ideas are, um, free from my, um, political concerns. 9:45 - Um, for the most part, people in the 20th century did not believe that. 9:51 - Um, and, um. Then we\'ll talk about why that is later. 9:57 - But if you. 10:04 - Kind of throw out the idea that war or knowledge in general is, um, not grounded in, um, any sort of absolute truth or anything, um, like that. 10:07 - Uh, as many people kind of came to conclude in the 20th century. 10:20 - For good reasons. For bad reasons. 10:27 - Uh, there\'s all kinds of debates about this sort of stuff, and, you know, whether it\'s desirable thing, um, or or not. 10:29 - Um, I kind of wish it weren\'t the fact, but it seems to be the fact. 10:36 - Uh, um, but if that\'s true, and if you accept that, uh, then how do you, um, like, discipline yourself? 10:41 - So you\'re not just doing what, you know, like, just kind of enforcing your own political preferences and things like that, 10:49 - which is a real concern for judges because you want to be consistent with, uh, with what you\'ve ruled before. 10:55 - If you\'re changing, you want to be able to clearly articulate that you want to do it in some sort of principled way. 11:01 - Um, and, um, and lots of people believe that, you know, if you have the right theory, 11:07 - it\'s possible, uh, and then other people will think, but your theory won\'t work. 11:11 - Um, and so we\'ll just think about to, um, uh, and there\'s lots more, but we\'re gonna, we\'re going to keep it simple. 11:16 - So we\'re going to do, um, two by the end of the day. 11:24 - Uh, today, uh, we\'ll probably have three because we\'ll throw in the popular constitutionalism one. 11:28 - Um, but, um, in modern constitutional debates, uh, one of the big schools of thought is originalism. 11:33 - That is, um, what judges need to do. 11:43 - Um, and I\'m being deliberately here, very court centered, because this argument is generally like, 11:46 - how do judges and lawyers argue about cases and rule in cases? 11:53 - Um, and, and, um, and usually I\'m going to be careful not to be court centered, but right now I am just for the purposes of this. 11:58 - But anyway, uh, what judges should do is they should go back and figure out, um, what the founding documents actually met. 12:07 - And over the years, the way they talk about this, um, change it. 12:17 - So originally, it was like, original intent, that is. What were the, uh, founders, um, intentions. 12:21 - Except that the problem with intent is, you know, they\'ve written these documents, 12:28 - but you don\'t really know what exactly they meant by that, um, intent. 12:32 - Because the intent means you\'ve got to kind of peer inside their minds. 12:39 - And as, um, historians and scholars, we can\'t do that. 12:44 - We only know what they wrote and things like that. So kind of modern variants of originalism focus on original public meaning. 12:48 - And that is what did the words mean to an educated person, um, that would be familiar with this stuff. 12:58 - And they go and they look in dictionaries and they say, oh, what did contract me or property mean? 13:05 - Or, you know, freedom of speech mean and um, and go um, and, and try to have original, um, you know, 13:10 - kind of originalist arguments and figure out, you know, what the framers thought about TikTok or whatever. 13:20 - They actually use an originalist thing in a TikTok decision. Um, but, you know, uh, what did they think about corporations spending money? 13:25 - Uh, um, in, in, you know, modern political elections and answer nothing, but, you know, like, uh, um, 13:34 - but that the idea here and here\'s the big point about it, the idea here is that constitutional meaning is fixed at particular moments. 13:41 - And so in the case of the Constitution, it\'s fixed in 1787. 13:50 - So what the words meant in 18, uh, in 1787 is what the word should mean in 1987 or, um, 2000, 17. 13:54 - Uh, um, and and um. And what the Bill of rights should mean. 14:03 - What do those words mean in 1791? What did the 14th amendment mean in, um, 1868 when it was and your, uh, um, uh, 14:11 - and that meaning is fixed and later generations are bound to follow those, 14:19 - uh, meanings, uh, the same today as it was when it was handed down by the framers, which is how framers, uh, 14:27 - is kind of how a Supreme Court justice in the 1850s said that, um, in uh, Dred Scott case, uh, which is actually a very originalist case, uh, 14:34 - although originalists like to disclaim it, we\'ll talk about Dred Scott down the way, 14:45 - but it\'s one of the more infamous, uh, Supreme Court cases in American history. 14:49 - Now, the alternative, um, to, um, living constitution or to originalism. 14:55 - And in our case, um, there are others, but we\'re just going to focus on these two is living constitutional, living constitutional. 15:01 - Um, is the idea that, um, the Constitution and the understanding the Constitution, 15:07 - the meaning of constitutional language needs to be updated for modern concerns. 15:12 - Now, advocates of living constitutionalism would not argue that they can just do whatever the \[INAUDIBLE\] they want. 15:18 - Uh, and, um, you know, and make things constitutional. 15:26 - Um, that\'s, uh, you know, clearly aren\'t. 15:30 - Um, but they do argue that what the Constitution really is, is a, uh, um, a document that is a, you know, 15:35 - kind of key signatory in a history of, uh, liberty and liberation generally in the way that they would say it. 15:45 - Uh, um, uh, and this is kind of a, you know, small l liberal interpretation, 15:54 - uh, of things, you know, people on the right and left would disagree of that. 15:59 - That is, you know, people like on the Marxist socialist left, people, you know, conservative. 16:03 - Um, and further. Right. Uh, um, we\'ll think this is dubious, uh, but generally what that means is you need to read the Constitution and, um, you know, 16:08 - understand its rights guarantees in a way that kind of what\'s more, people in so, 16:18 - um, you know, more rights for women, more rights for, um, people of color. 16:22 - Um, and you need to connect those in various ways to, um, constitutional amendments. 16:27 - Usually the amendment of choice is the 14th amendment, for reasons that we\'ll, we\'ll talk to, um, later. 16:32 - But, um, the meaning of the Constitution is, um, is not, you know, fixed in time. 16:37 - It is something that develops over time and encompasses rights that the framers may well not have envisioned. 16:45 - However, uh, the framers, uh, believed that now, both of these interpretations are largely elite affairs. 16:52 - Um, you know, you are, uh, kind of judges and law clerks that are going down there figuring out defining what\'s in the tradition, 17:02 - what\'s out of the tradition case of living constitutionalism, uh, or they\'re going in and, uh, you know, picking their historical sources. 17:09 - Um, and in trying to, uh, make a case that their arguments are historically defensible, 17:16 - which originalist arguments often times are, are not, mainly because they\'re. 17:23 - Uh, they\'re thinking like lawyers and lawyers. Um, really think that, um, what theories and evidence should lead is, uh, um, you know, uh, kind of. 17:30 - Direct answers. Uh, that, uh, explain the question to historians. 17:43 - Don\'t really do that. 17:50 - Historical study is kind of about ambiguity, like, oh, well, you know, there\'s this interpretation, but there\'s also these interpretations. 17:52 - Um, and, um, and, you know, there\'s lots of kinds of things coming into them. 17:59 - Um, whereas, um, lawyers generally want their evidence to give them, you know, like a certain definite kind of answer in historical sources. 18:04 - If you\'re serious about that, generally don\'t do that. Uh um uh. 18:16 - Certainly not reliably and in any way. 18:22 - So. So these are kind of really elite affairs about how to read the Constitution. 18:25 - Uh, there\'s also kind of theories about judicial review. 18:33 - Who should decide what the Constitution means, should it be court, should it be other branches? 18:36 - And this is where this theory that I\'m kind of borrowing from, uh, this theory of popular constitutionalism, 18:40 - which is generally originated in the legal academy in the early 2000s. 18:47 - Uh, mainly to push back against claims that the U.S. Supreme Court was tending to make, that it was the only. 18:54 - Official. Ex founder of constitutional meaning. 19:04 - That is. Um, if the Supreme Court said the Constitution meant that, then the Constitution meant that and that is it, um, 19:09 - which is, um, a very kind of late 20th century sort of development that is not something that would have been given. 19:16 - Certainly not the period that we\'re talking about today, and really not in the period that we are talking about for, um, weeks. 19:23 - Um. But it\'s a very, uh, um, very popular sort of opinion, um, these days. 19:31 - And so the idea behind popular constitutionalism, which was, uh, 19:39 - the title of a book that a legal scholar who\'s also doing history works named Larry Kramer, uh, um, was arguing, 19:44 - is that the understanding of the Constitution should be more expansive and that, uh, 19:51 - the court was not the only person, uh, or the only body expanding the meaning of the meaning of the Constitution. 19:57 - There were other branches, which is well known. There\'s a whole kind of theory in poly sci about the part mentalism. 20:04 - And the part mentalism is basically the argument that, um, 20:11 - each branch of the government expounds the meaning and meaning of the Constitution, and these may be in conflict and things like that. 20:14 - That was all very well established. 20:21 - Kramer was talking more about more than just about that, because of course, those guys are playing roles, um, uh, as well, 20:22 - and certainly more, more in previous periods in the later 20th century, although they still do in the 20th century. 20:30 - But what Kramer was talking about is that there was a lot of, um, kind of popular involvement, um, 20:37 - where people were kind of setting the boundaries of what the Constitution could mean by organizing, by voting, by signing petitions. 20:42 - Um, and what I like about popular constitutionalism and why I kind of draw on and I sort of draw it loosely. 20:50 - I\'m not, like, particularly interested in, uh, the idea of popular constitutionalism because, 20:57 - um, I have an interest in popular, uh, and constitutional theory, 21:03 - actually, uh, what I have concluded over, uh, my years of studying, um, constitutional theory is that I actually have very little patience. 21:08 - Patience for it. Um, and I don\'t find it particularly fun or, um. 21:17 - All that interesting in the abstract. 21:25 - There\'s all kinds of stuff, and the people who do it I really admire because, um, I\'m not particularly good at theory. 21:26 - Whatever it is in your mind that that works for theory. I just don\'t have. 21:33 - But that\'s okay, because what I have is I can, um, sit down and do all kinds of tedious stuff and write, uh, um, write out kind of, um, what it means. 21:40 - And I will do work that nobody else wants to do because it interests me and it doesn\'t really interest anybody else. 21:50 - Um, and, uh, and they find that when I do that, that that stuff is useful for them and that\'s, you know, they can knock themselves out. 21:55 - And so I can kind of help those people do their stuff. 22:03 - Um, whereas I can just, you know, do my, my historical stuff, write on narrow historical questions and not have to worry about, 22:06 - um, like, whether my interpretation is going to influence Supreme Court or, um, not which, um, uh. 22:14 - I guess would be kind of cool because I could show it to people that actually happened, 22:24 - but it\'s certainly not one of my, um, goals or interests, um, in there. 22:28 - Um. Although I like to work with legal scholars enough because their conventions are fun. 22:34 - So you go and you meet them. They they\'re, uh, you meet kind of more a variety of, of people than you do at historical, um, conventions. 22:42 - And the food is better and the accommodations are up and better because law schools have more money. 22:51 - And so like, I like that. So, um. 22:54 - So. What I mean by popular constitutionalism, um, is, is kind of what, um, Ferguson is talking about in her. 23:01 - Ah, Peterson. Huh? I\'m just going to mess up her name. 23:12 - What Peterson is talking about in her article, 23:16 - that there are popular understandings of the Constitution that may not be accepted by legal elites at all, 23:19 - but they\'re moving people to action and also forcing, um, you know, people actually in government having to, um, respond. 23:25 - And so there, um, is a variety of actors in constitutional interpretation. 23:34 - Some of them are in the Supreme Court, some of them are in Congress, 23:41 - some of them are outside and political parties maybe holding various offices, maybe not. 23:44 - Some of them are just in the public and they\'re not holding any office at all. 23:48 - But they have these understandings of the Constitution. 23:52 - Um, and. Now, along with this, um, comes, uh, another assumption that I will generally make. 23:56 - And that is, um. My understanding about the nature of the Constitution. 24:05 - The nature of constitutional meaning is that there is no real actual meaning. 24:12 - Certain meaning inside the Constitution or any document actually, that the meaning comes from um readers imposing their understandings into the text. 24:18 - Now, this I think this is limited. I don\'t think you can make words mean anything. 24:32 - So like, you know, if you read Lewis Carroll and Alice in Wonderland and all that, 24:36 - she meets Humpty Dumpty, um, and they have this really weird exchange about, uh, the meaning of words. 24:40 - And Humpty Dumpty was trying to, uh, make the word impenetrable mean something that it clearly didn\'t. 24:47 - Um, uh, and, you know, I, I do think that, like. It\'s not like a boundless field. 24:55 - You know, there there are areas where things are really clear. 25:01 - Cintas served six year terms. Right. And that\'s not particularly ambiguous. 25:06 - Um, House members serve two year terms, not particularly in an ambiguous, you know, and you have elections regularly, you know, that kind of stuff. 25:11 - That mean? You know, that sort of meaning is kind of there. 25:20 - That\'s all also sort of trivial stuff. But the things are are bigger. 25:24 - And the one that I will use for you to think about this is whether the Constitution was pro-slavery or anti-slavery, 25:30 - because there are provisions in the Constitution that support slavery, but it\'s not clear exactly how much support they give. 25:36 - Um, and, uh, whether they strengthen slavery, whether they weaken slavery. 25:43 - Um, and I think that the kind of. Meaning from that. 25:50 - Um, it is, or the meanings that are resulting from that is important because actually what you have 25:58 - coming out of that document are two separate understandings of what the Constitution means, 26:04 - or two constitutions. Um, and you see this a lot. 26:09 - I read a lot of conservative stuff. I\'m actually reading right now. 26:12 - Um, a book or audio book in it, I guess. Uh, um, uh, I don\'t know who who wrote it, I can\'t remember. 26:16 - I want to look it up. It\'s a book about BLM, uh, black, the Black Lives Matter movement. 26:22 - Uh, and, uh, the guy is arguing that it\'s essentially a Marxist revolutionary movement, and, and, 26:27 - you know, it is, you know, all bad and and rotten and all that, that sort of stuff, which is like. 26:33 - Fine. Whatever. I don\'t believe it, but I\'m going to read it because I\'m kind of interested in this sort of stuff. 26:40 - But in making that case, um, he takes out he takes on an argument that, um, is, um, 26:47 - popular among Black Lives Matter activists and scholars that are aligned with it. 26:55 - At least he says that the United States is, um, systematically, um, racist. 27:00 - Uh, and he argues that that is wrong and then argues that the only way that you can actually understand the Constitution is that it is a, 27:07 - an anti-slavery document. Um, and he notes there\'s some concessions that they make for slaveholders, of course, but somehow, um, 27:15 - the slave holders and getting those concessions were crushed by the anti-slavery meaning of the Constitution, which is obvious. 27:23 - To, you know, everyone except those that are actually living in the time implementing the Constitution. 27:31 - I suppose he doesn\'t say it that way. Now. Now I\'m being mean. Um. 27:36 - But, um, but basically what he argues is that there\'s an anti slavery constitution, 27:41 - and then there is a pro-slavery constitution in the anti-slavery Constitution, 27:46 - the self-evidently right, the correct understandings of the founders and the um, pro-slavery constitution is a, um, complete lie, maybe. 27:50 - Right. So there\'s two. One is right and one is wrong. 28:00 - Um and, um. The way that I would come in. 28:05 - Difference. Differently than that is that, um, I would say that the, the Constitution, um, had the potential. 28:09 - There\'s, you know, there\'s the potential for the Constitution to be either anti-slavery or anti anti or pro-slavery 28:17 - because the terms of the contract were ambiguous or the terms of the Constitution were ambiguous. 28:26 - Um, they would mean what they mean based on the way that they get implemented by Congress. 28:33 - Um and the president and interpreted by other people, and that the meaning is something that comes out of, uh, you know, people living their lives. 28:44 - You know, like, it\'s really a product of of history. 28:54 - It\'s not inherently pro-slavery. It\'s not inherently anti-slavery. 28:58 - And neither one of the arguments, as you know, like a basic notation of meaning, is necessarily wrong. 29:02 - Now, one is morally wrong and one is morally correct. 29:09 - But that doesn\'t mean that like, uh, um, the Constitution, unless you start with the assumption that the Constitution is automatically admirable. 29:12 - Um, and and and and. Right. 29:20 - Um, and saying otherwise is, you know, to disperse the country and, and set it up so you can tear it down, which is kind of what this guy is arguing. 29:23 - Um. But I don\'t buy into that. 29:31 - Right. So, um, so, yeah, these two interpretations argued by different groups that are contending for power in American society. 29:35 - And um, and one wins out sometimes in another one\'s going to win out later. 29:46 - And so um. And so that\'s the dynamic that I want you to see. 29:51 - So, um, basically what you. What I\'m arguing is that the United States, uh, when we\'re talking about the Constitution, there are generally, 30:01 - um, multiple constitutions in play or multiple understandings of the Constitution in play. 30:10 - Um, and that generally these are competing against one another. 30:17 - Um, and, um, and they\'re not necessarily right or wrong. 30:21 - Now, some we could make a case make more sense given the available evidence, um, that than others. 30:25 - Um, and but again, that\'s an argument that needs to be made. 30:33 - People have to marshal that evidence. They have to convince people. And really, 30:39 - the thing that matters in establishing constitutional meaning in constitutional history 30:43 - is you have to convince people to agree with you and to act on that interpretation. 30:49 - And if you get enough people to act on that interpretation and, you know, vote people in office, 30:54 - enforce the Constitution a certain way, then for all practical purposes, that\'s what the Constitution means. 31:00 - Um, you know. And that\'s very different than saying that the meaning is fixed in time, right? 31:06 - It is a product of, uh, democratic, uh, process and, um, struggle, for lack of a better word. 31:14 - And generally, there\'s more than two versions of the Constitution in, uh, um, in competition, like, uh, um. 31:22 - I. Generally when I talk about the 18th century, which is the area that I know most, um, 31:31 - and I would say that there\'s basically three there is a, you know, states rights version popular in the North. 31:36 - There\'s a relatively more nationalist interpretation, um, or states rights version popular in the South. 31:43 - Excuse me, uh, a uh, more nationalist version, um, that is popular in at least elite circles in the North. 31:49 - Um, and then there\'s the Supreme Court\'s interpretation, which is kind of neither one of those, 31:57 - uh, really, um, it\'s less nationally inclined than the northern stuff and far less, 32:02 - uh, state sovereignty oriented, uh, than what you would see in the writings of kind of southern partizans of secession and things like that. 32:09 - And then if you add in the kind of popular interpretations that that, um, Ferguson was talking about, um, did it again, 32:17 - Peterson was talking about, uh, then, you know, we have at least four, although I imagine there\'s all kinds of variants, um, in there. 32:24 - If we started, uh, chasing, you know, ferreting out all the people who are dressing like Native Americans and having them, 32:32 - you know, if we could explain what they\'re doing. Um, there\'s probably a lot of variety among those people as well. 32:38 - So you have all these sorts of, of constitutions, um, that are in competition that people are, you know, kind of using and, and, um, 32:43 - kind of organizing around to make their political claims inside, uh, you know, 32:53 - the, the kind of Republican governments forming after the American Revolution. 32:59 - And I think that\'s really the interesting thing about American constitutional history. 33:03 - Also, these interpretations change over time. Right? And so, um. 33:08 - And so you have to kind of keep and track kind of what are the Constitution or keep track of what the Constitution mean to this group of people. 33:13 - And then how is that changing? Or was it mean to us today? 33:21 - And, you know, how are people reading that stuff back to justify what they\'re doing today? 33:25 - So there\'s all kinds of, you know, kind of all sorts of kind of interpretive. 33:29 - Dynamics going on in here. 33:36 - And so. Another thing that I need to point out is that, um, 33:40 - some of these interpretations will carry more clout than others because some of these will be taken up by, um, institutions. 33:46 - And so, for example, um. Thomas Jefferson in 18 of 1798 1800 or so develops the a version of States rights constitutionalism, 33:53 - which argues that the federal government is basically derived from the state governments that it is subordinate to the state governments. 34:08 - This is something known as compact theory. 34:14 - Um, people came to the Supreme Court, made those arguments in 1819, and the court dismissed them like, just just they\'re wrong. 34:16 - Um, and you could not win a court case. 34:26 - Um, the arguing compact theory, um, at any point before the Civil War, I\'m not sure you could do it now, but maybe, um. 34:29 - But, um, and, uh, it was out there, it had all kinds credibility. 34:40 - Actually, its credibility and influence is increasing across the 19th century, just not with the Supreme Court. 34:44 - Even when the Supreme Court is moving in, uh, kind of pro-slavery directions, they don\'t embrace that kind of, um, argument. 34:48 - Uh, and so, um, certain institutions favor certain, um, constitutional interpretations, 34:58 - and they have a lot of weight in some places, um, they don\'t carry much weight in, um, other places. 35:05 - That\'s what I mean. Kind of like boundaries of of of meaning. 35:11 - Um, the fact that the Supreme Court prefers one doesn\'t make, you know, other variants any kind of less important or less persuasive. 35:15 - It\'s just, you know, um, if you\'re arguing in a court case, you wouldn\'t use those arguments unless you wanted to lose. 35:22 - Um, um, but or maybe you did argue it because you wanted to get the message out there and knew you were going to lose. 35:29 - We\'ll see that when we\'re talking about kind of, uh, people arguing for an antislavery constitution. 35:37 - And so, um, we\'re going to be talking a lot about these kind of contrasting, uh, um, things. 35:43 - And just keep in mind that I will almost never say, um, that, um, I think the Constitution means this and only this at all times throughout history. 35:49 - Um, now, I do believe as a caveat that people in the past especially did believe that that is, 36:01 - I believe that 19th century judges believed that the meaning of the law was floating out there in the sky, 36:09 - and that they could access it and they could interpret it, um, and, and try to follow it. 36:17 - And I believe that they believe they were doing that, if that makes sense. 36:23 - Um, I don\'t think they were actually doing that. But I do believe that they convinced themselves that they were doing that. 36:26 - Um, and. Um. 36:32 - Uh, and so and, and and I kind of write like, I think I believe that since I wrote my first book, uh, um, um, I, um, have become less certain, um. 36:35 - About. Whether there\'s a universal correctness to any, uh, legal interpretation. 36:50 - Um, I think I may have moved away from that during my time. But anyway, let\'s talk about the paper. 36:58 - Uh, so I haven\'t put the paper up yet. I did notice that it should have posted on, uh, midnight. 37:03 - Now, I had this dream that I was going to get everything done on Monday and everything like that. 37:10 - Uh. It\'s Tuesday. It\'s Tuesday, 1130, um, right now. 37:13 - So I\'m going to get everything posted. But one of the things that I didn\'t count on is that we\'re two weeks in, 37:18 - and I don\'t I\'m really just kind of learning what my work schedule was because I came in on Tuesday. 37:23 - Uh, when or like or actually I did on Monday when school was starting and everything like that. 37:29 - I made my videos for the week on that day. 37:35 - Uh, then I left town, then I came back, we had a snow day and I started stuff, and I was making videos on Wednesday, and, um, 37:38 - and then I came in and actually taught a normal day, and I was going to come home and I thought I would make a video for that. 37:45 - And it turns out that, oh, yeah, after I speak in front of, um, classes for two hours, 37:50 - I\'m kind of white and I do other stuff, and then I kind of shut down. 37:55 - Um, so I\'m not exactly sure that I\'d be able to, like, get stuff up and posted on Monday. 37:59 - Maybe I\'ll figure it out at some point. Um, but it\'s going to take me a while to, like, adjust to my schedule. 38:05 - Probably would have already kind of happened by now normally, but since the last two weeks were sort of weird. 38:11 - Um. Calendar wise. Um. I don\'t quite know yet, but anyway. 38:17 - I will get that. So I worked because I was like, we have the test. Um, I think it\'s going to come available soon. 38:23 - And that I looked and said, oh, it\'s supposed to be available. So I do know what I\'m going to do. 38:28 - So, um, and I have all the documents, um, up and ready to go. 38:31 - Um, they\'re in perusal right now, which is something I used to use a lot. 38:36 - I\'ll probably just leave them in perusal because they\'re all there and there\'s nothing wrong with it. 38:41 - Um, and then I will write up the the question, but basically what I\'m going to have you do is, um. 38:45 - Ponder whether the Constitution was a pro-slavery document or an anti-slavery document, or whether it was ambiguous. 38:55 - And I\'m going to give you a selection of sources. 39:05 - I\'m going to give you three secondary sources. I\'m going to give you, um, an argument from, um, a chapter from Sean Willetts, uh, 39:09 - who wrote a recent book arguing that the Constitution was anti-slavery because it didn\'t recognize the concept of people, uh, property and men. 39:17 - Uh, I am going to give you, um, the what I think is the best heart account of the pro-slavery constitution, 39:26 - uh, by a scholar named Paul Finkelman that he wrote. I think it\'s from 1987 or something like that. 39:33 - Lots of people make both these arguments. 39:38 - Um, but I\'m giving you either what is, um, the the best, most recent in the case of Willis or just what I think is, 39:40 - uh, um, probably the best expression of that, which is Finkelman. 39:49 - And then, uh, there\'s a piece by a guy named Howard Olean, um, that that\'s arguing kind of my position. 39:54 - The Constitution\'s kind of ambiguous. Uh, and what makes it pro-slavery and anti-slavery is really how it is implemented. 40:01 - So I\'m going to give you those sources. Um, and then I\'m going to give you, uh, 40:08 - documents from the Constitutional Convention in from the ratifying ratification 40:13 - convention about the three major slavery provisions in the Constitution, 40:18 - the 3/5 clause, the um, slave importation clause. 40:21 - Um, and I\'m not going to kind of break down today what these will do. 40:28 - I\'ll do that on Thursday or next Tuesday. Uh, I\'ll kind of formally walk through all this stuff. 40:31 - I\'m just going to tell you what I\'m doing right now. Uh, and then the fugitive slave clause. 40:36 - So I\'m going to give you, um, those. 40:40 - Uh, and then I\'m going to give you, um, a debate on slavery in Congress from 1790, which is like the first debate in Congress on slavery, um, 40:43 - where they\'re talking about the implementation of the fugitive, uh, of of the slave importation clause and what the Constitution might mean. 40:52 - Um, and this is important because one, um, the people that are arguing for this are petitioning. 41:01 - They\'re sending a petition to Congress saying, we have these grievances, these issues with the slave trade and how the cause is being interpreted. 41:07 - We\'re coming to Congress. Uh, and we want you to, uh, um, fix this problem for us. 41:15 - And then Congress reacts in a way that I would say, um, how they react makes the Constitution, 41:21 - um, you know, either functionally pro-slavery or functionally anti-slavery. 41:29 - It\'s at that point the Constitution becomes what it is. Um, that can tell you right now what I think that is what I probably will when we get to it. 41:33 - So I\'m going to have so you basically have four things. 41:40 - You\'ve got two things that are dealing with slave trade. But there\'s enough on either one of those that those could be separate things. 41:43 - Um, and then you\'ve got, uh, the Fugitive Slave clause. 41:49 - You\'ve got 3/5 clause. I\'m going to ask you to pick two of those and make your case. 41:52 - Was the Constitution pro-slavery or anti-slavery or was it not? 41:56 - Uh, and I\'ll kind of walk you through the, the primary sources and, um, uh, all of that. 42:01 - So that\'s generally what I am going to, um, ask and what I want you to see through this document is one. 42:07 - Why so much ambiguity? 42:20 - And what are we going to make of that ambiguity? And how do we resolve or can we even resolve that ambiguity. 42:24 - So I\'m going to have you think about that. And then I\'m also going to want you to pay attention to, um, especially with, um, willingness. 42:32 - And, um, Finkelman, where does the evidence that they are using come from to establish whether the Constitution is pro-slavery or anti-slavery? 42:39 - Does it come from the Constitution convention, or does it come from somewhere else, or does it come from the Constitution itself? 42:53 - Where does it come from? And this probably sounds harder than it is. 42:57 - It\'s not really harder, but it\'s a it\'s this is a really good exercise in thinking about the Constitution and what it might mean. 43:01 - What are the bounds that it could possibly mean? Because all of this room for interpretation is that there\'s probably some sort of boundary. 43:09 - Right? I\'ll give you an example from the 19th century. 43:16 - Um, uh, one of the things that presidents really wanted to do, and they talked about a lot in their annual addresses, 43:20 - is like, we need National University still don\'t have a national university. 43:26 - Um, and, uh, we need internal improvements. 43:31 - Um, and what they all agreed on is the Constitution didn\'t give them power to create a national university, 43:34 - and it didn\'t give them the power to create, um, internal improvements. 43:39 - This is like funding for roads and bridges and canals and that that that that sort of stuff. 43:43 - The, um, the Constitution did not give them that. 43:48 - And basically everyone agreed at this point, that is what the Constitution, uh, met. 43:53 - So that\'s what I mean, that there\'s a boundary, but within those boundaries, there\'s all sorts of other areas that you can make, um, 44:00 - arguments somewhere that some people found reasonable, some people that thought were outlandish, 44:11 - some that people thought were ethical, some people thought were clearly unethical. 44:15 - Um, uh, and it\'s in there that you have, um, all of these different constitutions in, um, in comparison, um, in competition. 44:19 - And a lot of times these are incompatible readings, but they\'re both kind of grounded in, in the Constitution. 44:29 - Um, it could actually mean that if you got enough people to, you know, sort of voted in and enact it. 44:35 - Um. And so that\'s how we\'re going to be kind of thinking about the Constitution that is, uh. 44:41 - Um, and that is a process that gives room to, uh, political elites and also gives room to, 44:47 - um, uh, um, you know, like common people, voters and even like, uh, 44:56 - protesters in the street that are setting up may polls and disguising themselves as, 45:01 - uh, Native Americans and that whole bit as, uh, as we see in the Ferguson take. 45:07 - So it\'s like it\'s a really broad world, um, uh, of, um, in interpretation. 45:13 - Um, uh, and, and some have more weight than others, but sometimes, uh, the, the stuff out there, um, that seems really extreme. 45:20 - Um, you know, the, the people in the institutions have to take notes and respond to it in some way or another. 45:29 - So, um, I\'m going to, uh, take a quick break here and get a drink of water. 45:37 - Mhm. 45:42 - And actually, I think I gotta, um, uh, drive my daughter to school, so I\'m going to break this, and I\'m going to come back, uh, in a different video. 45:44 - I think I\'ll do it that way. So let me in this, and then I\'ll be right back to do the rest. 45:52 - Stop. Share. In meeting. See you in a minute.