Intro (00:02):

Welcome to The Future of Liberty, a project of Liberty Fund hosted by Mitch Daniels.

Mitch Daniels (00:18):

Today’s guest could not be better suited to help us explore these topics. He is Dr. Jeffrey Rosen, a legal scholar and author. With the imminence of our 250th anniversary, which we will discuss, he is simply an ideal person to consult on the themes at the center of this program. Dr. Rosen, Jeffrey, thank you for being with us. I would like to begin by asking you about a tremendous new book that many of us are reading, The Pursuit of Liberty, written by Jeffrey Rosen. It is fair to say that a central tenet of the book is that the debate between Hamilton and Jefferson has endured throughout our history, a thread one can trace across these 250 years. Would you say a word about that?

Jeffery Rosen (01:17):

Absolutely right. The debate between Hamilton and Jefferson about national power versus states’ rights, democracy versus rule by elites, executive power versus congressional power, and liberal versus strict construction of the Constitution has defined all of American history, including our political, constitutional, intellectual, and social development. The book begins with the dinner party that helped define America, where Hamilton blurts out that the greatest man who ever lived was Julius Caesar, and Jefferson decides to found the Democratic Republican Party in opposition to what he sees as the monarchical ambitions of Hamilton and the Federalists. That debate over the scope of executive and congressional power continues in their disagreement over the Bank of the United States and whether Congress has the authority to create a central bank. The question remains relevant, including in this week’s Supreme Court decision about the constitutionality of independent agencies. Hamilton and Jefferson also clash over the proper method of constitutional interpretation, debating liberal versus strict construction of the Constitution.

(02:21):

And that debate continues today as well. The book ends with a moving fact that after Hamilton dies in the duel, Jefferson places a bust of Hamilton across from his own in the central entrance hall of Monticello. And when he was old and would pass it, he would smile faintly and say, “Opposed in life as in death.” And for Jefferson, Hamilton was not a hated enemy to be destroyed, but a respected opponent to be engaged with. And that’s exactly the spirit of civil friendship and civil dialogue that we have to get back to today.

Mitch Daniels (02:55):

Say just another word about ways in which this long running enduring debate manifests itself today. Can you see other aspects? You mentioned, I think, the so- called Humphreys executor case, which is pending, but any other current issues on which if they were with us, they would lead the argument?

Jeffery Rosen (03:18):

Every major issue before the Supreme Court in history, traces back to the debate between Hamilton and Jefferson over the Bank. It resurfaces before the Civil War in the debate over Congress’s power to restrict slavery in the Missouri Compromise. It emerges again during Reconstruction in disputes over whether Congress can protect civil rights. It continues into the civil rights era of the 1960s. And consider the major issues before the Court today, including the constitutionality of health care reform, tariffs, the Voting Rights Act, and Congress’s authority to regulate the economy. All of these questions return to the same debate over liberal versus strict construction of the Constitution. Hamilton argued that Congress may pass any laws that are appropriate or conducive to carrying out its enumerated powers, while Jefferson insisted that federal power must be explicitly enumerated and strictly construed against any broad reading of implied authority.

(04:28):

Broadly, Jefferson thinks that all increases in power threaten liberty, and Hamilton thinks increases in state power can secure liberty. It’s the difference between conservatives and libertarians, really. And that is the oldest division in party politics. It goes back to the Whigs and the Tories and the federalists versus the anti-federalists. And it’s played out on the Supreme Court in this central way. But I was very struck by how many of those cases I just mentioned come down to the construction of what’s called the necessary and proper clause of the Constitution, and that was one where Hamilton wanted to construe it liberally and Jefferson strictly.

Mitch Daniels (05:07):

You have spoken and written about that central phrase in the document we will celebrate next year, the pursuit of happiness. Happiness may mean something different to people today than it did to those who wrote that sentence. As you have taught us, for them it implied the ability to pursue virtue, including the capacity for self control and self improvement. Virtue, however, can sound like a passé quality these days. Are we still the sort of people who are well suited to govern ourselves? And if not, what is missing?

Jeffery Rosen (05:59):

Well, you are absolutely right that for the founders, happiness did not mean feeling good or the pursuit of immediate pleasure. It meant the pursuit of long term virtue. As you note, the word may sound passé today, but the principle behind it is one of the most ancient of all. It means self improvement, character development, and self mastery. It means using the powers of reason to moderate unruly passions and emotions so that one can achieve self government on a personal level, which the founders believed was necessary for self government on a political level. If you had to sum it up in one phrase, as the filmmaker Ken Burns has observed, for the founders happiness meant being a lifelong learner. That is a wonderful aspiration, to use every moment of every day to read deeply, to learn, and to grow. Have we lost that virtue, that value? It is certainly true that in the 1960s the meaning of happiness was transformed.

(07:07):

It came to mean feeling good rather than being good, letting it all hang out and pursuing immediate gratification. The old fashioned virtues of self mastery, self improvement, and character development came to seem passé to many. On the other hand, as I travel around the country, I find a real hunger for a return to the central importance of self mastery as a personal and even spiritual quest. For the founders, the pursuit of self mastery was ultimately spiritual. It was both a right and a duty. All of us know that in an age when we are addicted to screens, browsing and surfing rather than learning, listening, and growing, it is essential to set aside time each day for deep reading, deep learning, and spiritual, personal, and intellectual growth. That is why this remains the most ancient and enduring understanding of happiness.

(08:10):

It prevailed for most of our history through the entire history of the West and the East, and it’s urgently important to recover it if we are going to keep the Republic.

Mitch Daniels (08:23):

Let me ask you about one related issue. Some of the founders, though not all, and some of our leaders at least until recent times, have argued that religion was an indispensable pillar of self government, that only a people animated by faith in a higher power could govern themselves effectively. Is that notion now obsolete? And if it is, what replaces it?

Jeffery Rosen (09:00):

It is a very important question, and it is certainly true that for the founders, faith was compatible with reason. A degree of faith was also necessary to cultivate the kind of spiritual self government they believed was essential to personal self government. That does not mean they agreed on every aspect of the relationship between church and state. Consider James Madison, who described freedom of conscience as the very purpose of government. He argued that the primary role of government is to protect freedom of conscience as an unalienable right. He called it unalienable because we do not have the authority to surrender control over our thoughts and opinions to the government or to anyone else. Our thoughts and opinions, he said, are shaped not by our will but by our reason, and we cannot hand over our reason to another power. That is why, in the Memorial and Remonstrance against Religious Assessments, written in opposition to a religious establishment in Virginia, he insisted that the opinions of individuals, being dependent on the evidence contemplated by their own minds, cannot be controlled by others.

(10:14):

From this, Madison concluded that the government should be religion blind. It should not take cognizance of religion, as he put it, and should neither support nor discourage it. Washington also believed in the compatibility of faith and reason, but he was more open to state support for nonsectarian religious expression. Jefferson, famously a deist, believed in an impersonal creator God, though not in the doctrines of any particular sect. What unites these founders is their belief that the quest for self mastery was not only a right but also a duty. All of this suggests that in an increasingly secular age, it remains possible to protect full religious freedom and maintain state neutrality among sects and between religion and nonreligion, while also recognizing that for the founders faith was deeply important and, for many of them, necessary to cultivate the virtuous self mastery required to sustain the republic.

Mitch Daniels (11:27):

Thank you. One of our guests on this program, Sir Niall Ferguson, is fond of saying that when someone describes an issue or phenomenon as unprecedented, it is often another way of saying, “I have not read enough history.” With that in mind, I would like to ask you about a couple of current matters that may seem without precedent. One is immigration. As we are taping this, the Supreme Court has announced that it will take up another case involving birthright citizenship and whether it may be limited in any way by the executive branch. What are your views on that? And if you are willing, would you venture a prediction, or would you prefer to reserve judgment?

Jeffery Rosen (12:18):

I long ago stepped away from the business of predicting Supreme Court decisions. I spent a good part of my career attempting to do so, with limited success. That said, I can share the consensus view of most legal scholars and observers, which is that the Court is likely to reaffirm the traditional understanding of birthright citizenship. The Fourteenth Amendment provides that all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside, and the expectation is that the Court will reject the Trump administration’s executive order purporting to end birthright citizenship for the children of undocumented immigrants. It will, of course, be an important decision, and there may be divisions among the justices. The traditional understanding dates back at least to the 1880s, when the Court in United States v. Wong Kim Ark unanimously recognized birthright citizenship. That ruling was rooted in the original understanding of the Fourteenth Amendment. Members of Congress at the time stated explicitly that the amendment would guarantee birthright citizenship and anticipated that the children of noncitizens would be included. The position is also supported by more than a century of precedent and widespread acceptance. The argument on the other side rests in part on the text of the amendment.

(13:44):

The claim is that the children of undocumented immigrants are not subject to the jurisdiction of the United States because their parents owe allegiance to a foreign sovereign. That argument also relies on a close reading of medieval English history and common law, which some justices may or may not find persuasive. All of this is to say that there are divisions of opinion on nearly every constitutional question. In this instance, however, it is fair to observe that the overwhelming weight of opinion among both conservative and liberal scholars is that this is not an especially close case. The traditional understanding of birthright citizenship is deeply rooted in constitutional text, history, and precedent, and many expect that the Supreme Court is likely to reaffirm it.

Mitch Daniels (14:28):

There are some today who would dispute this, but for most of our history the United States has been understood as a creedal nation, formed and sustained not by tribe, religion, or ethnicity, but by a shared commitment to core principles articulated in the Constitution. Does that understanding presuppose assimilation? Although we may welcome people of every background, do we also expect, and does the system require, that they relatively quickly adopt the principles we have been discussing? Am I overstating the case?

Jeffery Rosen (15:23):

I think it is absolutely right that we are a creedal nation, and that our creed is expressed most clearly in the Declaration of Independence. We hold these truths to be self evident, that all are created equal and endowed by their Creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness, and that whenever government threatens those rights, it is the right and duty of the people to alter or abolish it and to establish one more conducive to their safety and happiness. The three central ideas of the American creed, liberty, equality, and government by consent, are reflected in the three structural pillars of the Constitution: separation of powers, federalism, and the Bill of Rights. Since the founding, Americans of many different perspectives have embraced these principles while disagreeing about how they should be applied in practice. That is why the debate between Hamilton and Jefferson remains so central to our history.

(16:14):

Hamilton and Jefferson agreed on the core principles of liberty, equality, and government by consent, but they disagreed about how those principles should be applied in practice and how to balance liberty and power. Does government by consent mean pure democracy or republicanism? What does it mean to say that all are created equal, and what are the implications of that claim for slavery? On these questions, they could and did respectfully disagree. It was the productive tension between their competing visions that helped prevent American society from descending into violence, but that tension depended on a shared commitment to the American creed.

I would not necessarily use the word assimilation, because Madison and the other founders were deeply committed to pluralism. Still, citizenship does require a shared commitment to the principles of the American creed. There is no single orthodoxy about how those principles must be applied, but to be an American is to embrace liberty, equality, government by consent, limited government, and constitutionalism, and to engage in respectful, civil, and thoughtful dialogue about their meaning.

(17:26):

And that’s why there’s no place in America for violence as a substitute for civil dialogue and for separatism and a kind of identitarianism that rejects the idea of a common American creed, we are indeed the people united by our devotion to the creed, and that’s why it’s so urgently important to study the principles of the declaration and the constitution in order to sustain them.

Mitch Daniels (17:59):

Your answer anticipates my next question about another much discussed topic, namely the polarization in our society and the troubling indication that a surprising number of people believe violence is sometimes acceptable. Our history suggests that we have faced similar moments before. Do you take the view that we should not be overly alarmed, or are we confronting challenges that are uniquely serious in our time?

Jeffery Rosen (18:40):

I would not say we should ignore the problem, nor would I describe it as unprecedented. As Sir Niall Ferguson has observed, it is usually a mistake to assume that anything in history is entirely new. Still, political scientists tell us that we are more polarized today than at any time since the period just after the Civil War. These are serious times, and we are seeing episodes of insurrectionary rhetoric and even violence. Such episodes have appeared periodically throughout American history, although, as Richard Hofstadter noted, they have been relatively rare. Consider the history of the Insurrection Act. It was first passed, somewhat ironically, in 1807 at the request of Jefferson. Jefferson had generally favored pardoning insurrectionists and had supported pardons for participants in Shays’ Rebellion as well as for those involved in resistance to Hamilton’s whiskey tax. Yet once he became president, he changed his view and asked Madison to help secure authority to suppress a rebellion in Vermont against his embargo, at a moment when some in New England were even contemplating secession in response to economic hardship.

(19:50):

Since then, the Insurrection Act has been invoked to suppress secessionist violence before the Civil War, resistance to Reconstruction afterward, nativist unrest in the 1920s, and opposition to the civil rights movement in the 1960s. Most recently, it was invoked by President George H. W. Bush during the Rodney King riots. Today, we are again debating the use of federal troops in American cities. All of this reminds us that fears of insurrectionist violence are not unprecedented in our history. The larger question is whether such unrest could escalate into civil war, something that has happened only once before. So long as we remain short of open warfare, and that boundary continues to constrain our politics, it is fair to say that the constitutional system, however strained, is still holding.

Mitch Daniels (20:58):

In a recent book and in his appearance on this program, Yuval Levin has suggested that the Constitution itself can serve as the mechanism for navigating this discordant moment in our history. He argues that by studying the Constitution and recommitting ourselves to its structure and principles, we can relearn how to disagree constructively. What do you make of that contention, and do you believe it is realistic?

Jeffery Rosen (21:34):

Yuval Levin is absolutely right that the Constitution was designed for people with fundamentally differing points of view. As Justice Holmes observed, it was made for people who disagree. Since the founding, its purpose has been to structure those disagreements so they remain civil rather than violent, encouraging both sides to respect one another, to listen, and to remain open to compromise and even to changing their minds. Levin also identifies structural threats to the separation of powers that have made the Madisonian ideal of compromise increasingly difficult to achieve. These include the steady growth of executive power since the Progressive Era and, in his view most importantly, the weakening of Congress, which has too often become a compliant instrument of presidents from the same party rather than an independent and deliberative body. Levin acknowledges how difficult it would be to revive Congress as an effective check. He proposes reforms such as strengthening the committee system so that legislation cannot be driven solely by party leadership without broader consultation, along with other structural changes designed to encourage Congress to reclaim its constitutional role. He is right to emphasize that at the founding, the separation of powers was regarded as the primary safeguard of liberty, even more central than the Bill of Rights. If we hope to restore the Constitution as a productive framework for discussion and deliberation, we must also restore the vitality of that separation of powers.

Mitch Daniels (23:09):

I would like to turn to what may be a more encouraging development, namely a renewed interest in civic education, aimed, I hope, at addressing the clear lack of understanding among many Americans about our history and the principles we have been discussing. What are you seeing that gives you encouragement? In particular, I am curious about the new civic and constitutional centers opening on college campuses. Are they largely ornamental, or do they represent the beginning of a broader recommitment?

Jeffery Rosen (23:49):

It is encouraging that some campuses have established centers where conservatives can find an intellectual home. Professor Robbie George at Princeton was a leader in this effort with the James Madison Program, which has played that role for many years. It is also heartening to see other universities, including most recently Yale, create centers intended to promote intellectual diversity. At the same time, these centers should not become enclaves of separatism. It does not make sense to place conservatives in one corner and liberals in another, because the real goal is dialogue between differing perspectives. That exchange is what makes light and learning possible. As long as these centers foster genuine engagement rather than further fragmentation and polarization, they are developments to be welcomed.

Mitch Daniels (24:47):

The label progressive has returned to prominence. Whatever else it may mean, it has in some cases served as an effective rebranding of statist policies that had previously fallen out of favor. At its core, at least a century ago, progressivism was represented by figures such as Woodrow Wilson. It rested on the belief that the Constitution was becoming outdated and was no longer well suited to the demands of a modern industrial society. What should Americans today make of this renewed enthusiasm for that perspective?

Jeffery Rosen (25:39):

You are right that during the Progressive Era figures such as Woodrow Wilson and Theodore Roosevelt raised fundamental questions about the separation of powers and even about the principles of the Declaration of Independence. Wilson argued that the core of the Declaration, its second paragraph, which he dismissed as a preface, should be treated as largely irrelevant, and that the list of grievances was more significant. He favored a form of congressional government and looked to the German philosopher Hegel as an intellectual influence, emphasizing executive energy and administrative efficiency. Theodore Roosevelt, like Wilson, maintained that the president is a steward of the people who should directly channel the popular will, a view the founders themselves would likely have rejected. Both visions contributed to the growth of what has been called the imperial presidency and also an assault on the separation of powers that continues to concern observers today. As we discussed earlier, there are real dangers in consolidating executive authority without meaningful checks from Congress or the judiciary. The scope of the administrative state, which took shape during the Progressive Era through the creation of independent agencies, remains a central constitutional question and is once again before the Supreme Court.

(26:57):

And there are good arguments, as we discussed, about whether or not the founders would have allowed the creation of independent officers, although that’s a legitimate subject for debate. The idea of a populist presidency and a congressional or executive government, rather than one in which we, the people, are sovereign and our rule through the separation of powers is not one that the founders would have accepted. So for all these reasons, it is important for liberals, classical liberals, whether they consider themselves liberals or conservatives, to resist efforts by the progressive left and by a liberal right to consolidate power in the executive alone and to defend the American creed.

Mitch Daniels (27:46):

There are those who argue that in a world of instant communication and rapid, even overnight change, a system deliberately designed by Madison and the other founders to promote deliberation and compromise, processes that necessarily take time, is no longer suited to contemporary demands. Should we in effect demote Article One and elevate Article Two in order to meet modern challenges, or does the constitutional structure they created remain viable today?

Jeffery Rosen (28:26):

They are not only viable; they are more important than ever. Progressives such as Woodrow Wilson made a similar argument at the turn of the twentieth century, claiming that modern conditions and the pace of communication had rendered the separation of powers obsolete. The result of that misguided reasoning, some would argue, was the rise of a more demagogic presidency. Madison, by contrast, believed that the relatively slow pace of communication in his time would allow reason to spread gradually across the country. He placed great faith in emerging media technologies such as the broadside press, which enabled citizens to read complex arguments like those in the Federalist Papers, to deliberate with their representatives, and over time to align themselves with the common good rather than with narrow interests. For Madison, a faction was defined as a group driven by passion rather than reason and devoted to self interest rather than to the public good.

(29:21):

Madison hoped that the large size of the republic, which made it more difficult for mobs to organize, combined with a system of representation in which elected officials would refine and check popular passions, and reinforced by a relatively slow media environment that encouraged deep reading and deliberation, would allow the republic to endure. To the extent that the instantaneous speed of modern communication has eroded those safeguards, and to the extent that social media allows posts driven by passion to travel farther and faster than those grounded in reason, while also encouraging self segregation into filter bubbles and echo chambers, our current media environment begins to resemble Madison’s nightmare. The response to this new technology, however, is not to declare Madison obsolete. It is to recognize the continuing importance of his call for time and deliberation. The purpose of the constitutional system is to slow decision making so that reason can prevail over passion and the common good can triumph over the narrow interests of a faction.

(30:25):

We’ve got to recreate that slow deliberation rather than abandon the effort.

Mitch Daniels (30:32):

Those of us who are looking for encouragement about the future of freedom in this country can take a lot of it from your activities and from those we look forward to that you just described. And Dr. Jeffrey Rosen, thank you for being with us and thanks to you for your commitment to freedom and for joining us on this latest edition of The Future of Liberty. See you next time.

Outro (30:54):

The Future of Liberty has been brought to you by Liberty Fund, a private educational foundation dedicated to encouraging discussions of the ideal of a society of free and responsible individuals.