Ep. 397: Federalist Papers LIVE (Citizen Edition)

0:00 Mark: Hey folks, what you're about to hear is a live show. We haven't done live shows in a while, but if you'd like us to do one in your area and have an idea for an appropriate venue for it, reach out to us. Peltiallyexaminedlife.com this was captured on video. If you'd like to experience it on video, check the partially examined life YouTube page. It may or may not be ready by the time this goes up. Finally, I'll be teaching an online class, key Ideas in the Philosophy of Mind this fall. Please look to partiallyexaminelife.com class. Welcome to the Partially Examined Life.

It's a podcast by some guys who are at one point set on doing philosophy for a living, but then thought better of it. This is a very special episode as we are live in the Madison, Wisconsin area at Middleton's Craftsman table and tap in front of a highly attractive and intelligent audience. Our question on this occasion is something like is the American experiment with working out as planned? And we read several of the Federalist Papers written by James Madison and or Alexander Hamilton in 1787, 1788, as our Constitution was being ratified, specifically Federalist Papers number 10, 39, 54, 70 and 78.

We also read a couple of the anti Federalist papers, took a look at the Declaration of Independence and Frederick Douglass Fourth of July Speech from 1852. This is Mark Linsemeyer, your Unitary executive order for this afternoon's proceedings.

1:25 Seth: This is Seth Paskin, unchecked and unbalanced in Madison, Wisconsin.

1:32 Wes: This is Wes Allwin, worried about the dangers of the plural executive in. Where are we? Madison, Wisconsin.

1:38 Mark: It's close enough.

1:40 Dylan: And this is Dylan Casey reflecting on the times when strengths become weaknesses and that communities, organizations and institutions are made of individuals who are the animating virtues and vices of those collective entities in Madison, Wisconsin.

1:55 Mark: All right, All right. Now we're going to go around and have all of you. That might take a little while afterward. We will have a Q and A in the last half hour of us. So we're going to talk for maybe an hour and a half here. Maybe we'll take a break.

2:18 Unknown speaker: Maybe.

2:18 Mark: We'll see.

2:18 Wes: We'll see.

2:19 Mark: We'll see. This is, we're advertising. This is the 400th episode. It is. I think this is a technically 397, but you know, it's pretty arbitrary. We've done a lot of random recordings, sometimes calling the episodes, sometimes not. Sometimes It's a part three, but it's a separate day. Anyway. We're well past 400, but we got this far. We were here over a decade ago at this very restaurant doing our very first live show, and here we are

2:42 Dylan: back here for episode 100. Was here.

2:44 Wes: Yep.

2:46 Mark: Crazy.

2:48 Wes: Yeah.

2:48 Unknown speaker: Any.

2:48 Mark: Any initial reflections before we get into

2:50 Wes: it on the fact that this is.

2:54 Mark: This is the part where we improv.

2:57 Wes: Last time was 100. Well, I'll say 400 is four times 100. Yeah.

3:03 Seth: Whenever I tell somebody that I do a podcast with some guys I went to graduate school with, and I say, yeah, we've been doing it for 17 years, that's when it hits me like, I. That seems like a really long time to do anything, but particularly this. And also, are you saying that with

3:24 Wes: pride or with shame? I can't tell.

3:26 Seth: No, no. I mean, something like this was, you know, it was kind of like Mark said, you want to get together and do something? And we were like, sure. There was no plan. There wasn't. You know, we weren't trying to. We weren't trying to do anything. We were just doing. And 17 years later, we're still doing. So I find that to be really. And at that time, podcasting was kind of nascent. So we've seen the whole. We haven't changed, but the industry has changed quite a bit, and the whole concept of podcasting has changed. And now that we have AI, I think in the Q and A, there's an opportunity to have some really interesting conversations about where all this is going, because you might not need the four of us anymore.

4:06 Wes: That's true.

4:08 Unknown speaker: Yeah.

4:09 Mark: There. There is an AI Seth that has been launched, and I'm not joking, he did this. And we haven't actually talked to you about how we feel about that.

4:20 Wes: Clones your voice. And you also uploaded all your notes that you ever took, or you.

4:25 Seth: I. I did transcriptions of all of our episodes, and I uploaded it and had a tag, which one was my part, so it can see in context how I respond. And I have all of yours tagged as well, so I can make versions of you guys if you want.

4:40 Wes: No, I've been chatting with you now for, you know, several weeks.

4:43 Seth: Yeah. And the feedback I'm getting is, is that it says things that I would say, but it doesn't sound like me. It sounds like every other AI out there. So personality, I guess, is the next step.

4:55 Dylan: Just like you can tell if you're in a dream or not, you can tell what is the actual stuff.

4:59 Seth: That is correct, yes. All right.

5:01 Mark: So this was a get together, not actually for the 400 I mean, that was coincidence, but for the 250th birth of our nation. And so we've done. Actually, yes, a long time ago. We did some of these federals papers before, but we're not. We don't care. We didn't re. Listen to any of that. We're starting fresh. This seemed like a good, you know, if maybe some of you who. Who doesn't listen to the show. All right, so there's a good percentage, and that's fine. We're not going to talk about the weird Hegel stuff that we've been doing. This is stuff that everybody's done with that for a little while, maybe should have done in school at some point. I don't know that I had to actually read these directly. I don't even remember.

5:41 Dylan: This is part of the foundational, part of my philosophy education. This is in the first set of books that I read when I was doing Justice, Morality and Constitutional Democracy at Michigan State University. So this has a. It's close to my heart.

5:56 Wes: And then it's. They do them at St. John's right?

5:58 Dylan: They do.

5:58 Wes: We do them at St. John's

6:01 Mark: so we were. We sort of each assigned ourselves one to introduce. I got the first one, which is about the unitary executive. So Federalist 70, the title of it is the same view continued in relation to the unity of the executive with an examination of the project, an executive council. So. Right. Hamilton asks us in federal 70, is a vigorous executive inconsistent with the genius of Republican government?

6:29 Wes: And I think he talked like that, genius being spirit.

6:34 Mark: So nobody wanted a king. Right. So why have a president at all? Why not just have a Congress? Well, or why not have two presidents or an executive council making the decisions?

6:42 Unknown speaker: Right.

6:42 Mark: You wouldn't get a king abusing his power. Then we have the presidential cabinet. Of course, we've got the vice president, We've got the heads of the many executive agencies. But the question Alexander Hamilton was asking was, do we want these other executive officials to have real power against the president? Today, given who our president is, we probably want that. But no president can be an expert in everything. And we'd maybe like the wisest, most expert opinion in any given area to win the day. Hamilton argues no. Of course, we want advisors with expertise.

But the president is elected to be, as George W. Bush told us, the decider. Right. So the Senate has to approve any appointments, but really the President is in charge of choosing who to listen to and making all the decisions. So even if he delegates a decision, the buck stops with him. Or her. Because he chose that delegation. Right. Hamilton sees collaboration as necessary. When it comes to actual lawmaking, people will disagree. It'll be difficult to pass legislation or amend the Constitution. That's actually good because according to Hamilton, it tempers the whims of the majority.

But when we need to execute the law, we need that done decisively, swiftly, and importantly. If only one person is making those decisions, we have a clear person to blame. The president can't just say, I'm just doing what my advisors told me. JD he said that the president is responsible to the people. He can be removed upon bad behavior. In theory, he can actually make decisions and get things done. If you have more than one executive, you get factionalism, you get deadlock, you get resentment from whoever opinions are overruled. For a country like England with an unaccountable king, you do want a powerful executive council to help keep such a person in check.

But for America, we've got an elected president, and, and you know, as of the 22nd Amendment in 1951, we have term limits on that president. Of course, we have impeachment, so nothing to worry about. I throw it to you.

8:42 Seth: So I think what Hamilton is trying to balance here a little bit is the idea of a king, which would be a very, very strong executive power, right? Maybe absolute in some sense, and saying we don't want to go too far the opposite direction. Because there's a quote here from this part. A feeble executive implies a feeble execution of government. A feeble execution is but another phrase for a bad execution. And a government ill executed, whatever it may be, in theory, must be in practice a bad government. So thinking about literally taking the term executive as execution of the law, like prosecution of the things that need to get done, wartime, wartime powers, Right, Commerce, these kinds of things. So he wants to make sure that we're not stripping the executive branch of the ability to actually effectively run the government in that sense. So we have to kind of keep that in mind.

9:39 Dylan: One of the things I like 70 is, I guess, like the other ones, they illustrate these tensions about things that are actually genuinely good, that you have to still balance with their excesses. And so Hamilton goes hard on the idea that you really need to have a vibrant executive in order to be effective. Good government means having things get done. And having a plurality, a plural executive, is going to temper that and make it difficult for there to be actual effective execution. And as Mark said, that tempering in his mind was coming from the rest of the government.

The challenge, of course, with effective execution is the control of the execution. And this theme is throughout all of these. Every branch of government. Well, there's a virtue of this branch of government. This is a thing that's going to do well, and we want to enable it to do it well. But there's things that are going to screw it up. And if it does these things wrong or improperly or not effectively, then it's going to be a problem. And so you get this kind of classic thing that most of us learned in civics class, like the branches of government were designed to sort of distribute power and work against one another and in concert with one another to sort of balance out their powers, the checks and balances argument.

And I think you get that illustrated here. And I think you also get illustrated a certain kind of hopefulness about where those ultimate checks and balances are going to be come from this one. I think you particularly see that the way in which your government runs ultimately is going to depend upon the individual people that are in the government. There are actual checks and balances. Some of those process things happen, but it's all always made up of people. And so when you have something like we're going to get people out for and they're only going to serve as long as they're on good behavior, well, somebody has to hold them accountable for good behavior.

Other people have to hold them accountable. And the people who are being held accountable for good behavior, the whole point is that they're doing their job well. And that part, I think is also throughout this whole thing. It's not clear how you deal with people just either incompetently or purposefully doing a terrible job.

12:02 Wes: Yeah. So I think it's important to point out that he wants an energetic and unitary executive, but that is in part because it's easier to be checked that way. Right. Because we can attribute responsibility and blame and potentially do something about it when we have a corrupt executive. So I think it can be misleading to hear this and think, ooh, we must have a super strong executive, because he's going to argue also who's giving the summary on the judiciary?

12:33 Seth: Me.

12:34 Wes: So, yeah, Seth will tell us how he also wants a very strong judiciary. And one other point to make here is that in each branch the same property could be beneficial or hurtful. So we'll see with Madison that in a way, dissension is a good check on the possibility of a tyranny of the majority. You have different interests, different factions, and we want dissent in a way. We want the legislative process to be slowed down by that. But if that happens in the executive, then the laws that have already are already on the books might never be enforced because there's dissension within the executive. So I don't know. It seems to. It makes sense to me. Do we have any dissents here about whether this makes sense?

13:22 Seth: I don't have any problem with the idea that the executive function should be unitary, meaning one person. But I think there is a tension here when this might be something familiar to those of you who have job jobs. When they say, oh, we're bringing in a new leader for your department, and then you meet this person and you're like, manager, right? Not a leader. There's a difference between somebody who leads and who inspires and who drives and who takes action and somebody who is just making sure the trains are running on time, so to speak. And I think that tension is that Hamilton's.

It's. It's easy to argue for a single person. It's harder to argue that that person should be that energetic figure because of the risk associated, you know, like, because you think about a lot of European countries that have federations, like, you don't even know the names of the presidents because they just. That's not the type of function that they're looking for out of their executive. Right. And so it's a possibility that that could have been something we had, but it's not what we do, in fact, have.

14:29 Mark: So we should see also. So this, this against, of course, the background of. It's a federal system. So it's not like the only executive is the president. It's the executive in charge of the federal stuff, which was a fairly limited amount of stuff. The governors and the states can sort of give however, you know, structure their governorships and their internal parliament bodies however they want. So it's okay. Right. Even Hamilton says here in some. He points to some historical examples. And if it's really like they have a definite different. Okay, so this is the guy who's in charge of the city, and this is the one who's in charge of international relations. Like, you can divide executive powers as long as it's really clear who is doing.

15:09 Seth: What are you saying? Sorry, I thought you were going to imply that at the time he was writing this, that separation was much more clear and the sphere of control of the states was much larger and that over time this executive function has gained

15:25 Unknown speaker: that much more power. Was that right?

15:27 Mark: Well, I mean, that's kind of one of the things that we would be arguing Right. With actual amendments to the Constitution and just with the march of history that states are sort of less important, you know, in some way. Obviously they still do a lot. But in terms of those strict separation and seeing.

15:44 Seth: Right.

15:45 Mark: This is one of the things that the, you know, ultra conservatives want to go back to is having, hey, you know, we wouldn't have such a powerful executive if you had kept the federal government in its little lane, doing only what the federal government is supposed to do and not doing potentially everything.

16:00 Wes: So we, we have two systems of checks and balances, Mark, which I think is what you're pointing to. One is between the branches of the federal government and one is between federal power and state power. And this is the. One of the things I don't. I don't know if you remember this from Tocqueville, which I think we also did a live show for Tokyo. But he was very impressed by that. It gave him great hope for America's future. Because it is very different in European governments. There isn't a lot of local power. Government is very centralized. And even now, if you're worried about election tampering at the federal level, let's say just bringing that up randomly has nothing to do with what's going on.

It kind of read a bit about this. It hardens me that it is actually very hard to control state and local governments which are responsible for running the elections. And I'm not saying that that can't be overcome, but I think it's much more difficult than in many other countries. So the balance between states and federal power is, I think, extremely important.

17:06 Mark: And as a possible transition to our talking about the courts, the executive is somebody that is supposed to be. Actually, maybe we should just get going on that. And the executive is not supposed to be making laws was the thing that I was having in mind, the thing that we object to now, which some people. Executive orders. This is just not something that would have been pictured here. But I think we're getting into the difference between legislators, right. The laws. The judges supposedly interpret the laws, but if you're going to execute the laws, you also have to interpret the laws.

17:43 Wes: Right.

17:43 Mark: It's just that the. Maybe the judges will tell you if you're doing it wrongly. So, you know, they're all supposed to work together.

17:50 Unknown speaker: Right.

17:50 Seth: Okay. So I guess that's our transition to Federalist and antifederalist number 78. So we'll start. This is exposition and I will have editorial I will clearly label which part is my opinion versus so Federalist Paper 78 is entitled A View of the Constitution of the Judicial Department in Relation to the Tenure of Good Behavior. Now, a tenure of good behavior here, this is not about conduct. It's the equivalent of saying a lifetime or permanent appointment. So Hamilton's argument is that for the American judiciary to function effectively, particularly with respect to the Constitution, judges must be independent.

And nothing contributes to this more than permanent tenure. Now, this may seem obvious to you here in Wisconsin, but I'm from Texas, and in Texas, we elect our judges on partisan party lines and for limited terms. So you'll humor me if I walk a little bit through his argument. So he says the judiciary is the weakest of the three branches. It has neither sword nor purse. In other words, it's not the executive and it's not the legislative. It can never attack either of the other two branches, and in fact, it needs to be protected from both of them.

The judiciary can also, even though it may occasionally oppress individuals, cannot threaten the general liberty of the people, which ultimately means that liberty has nothing to fear from the judiciary alone, but everything to fear from its union with either one or both of the other two branches. Now, a union of the judiciary with another branch would come through the overpowerment, awe, or influence of the judge, not the other way around, because the judiciary is weaker. So they need independence and protection, and that is best provided through tenure of good behavior.

Now, in anti federalist number 78, Brutus argues that the only reason for permanent appointment of judges is to counteract the influence of an executive that also has a permanent appointment. In other words, a king. Monarchs have a strong incentive to perpetuate and expand their power because they live, they have it as long as they live, and they pass it to their children. So you want to make judges who can check that power immune from their influence. Right. It's a real danger. But for elected officials and people that don't have lifetime appointments, you don't need to have permanent appointment of judges.

And since our president isn't that way, we don't need permanent appointment of judges. So even though the Federalist and Anti Federalist are arguing across purposes here, both are concerned about the same thing, which is the union of the judiciary with one of the two other branches. That was exposition. You may now disregard the following. I think there's a lot implied and also hinted at and sometimes addressed in some of the other parts of the text that I didn't bring up. But I think there's an assumption here that the type of people who become judges are different than those who become legislators and executives.

Now, that could be by temperament, by education, or it could be the role itself. But there are parts where they explicitly say, oh, judges have to learn the law. And that's why they're different than legislators, which is a very strange thing to say. I think there's also an assumption that judges will tend to be unbiased or objective unless they are influenced from the outside. Now, the antifederalist paper admits of the possibility of corruption and ill intent on the part of the judges, but the Federalist paper does not, however, neither actually names or addresses it explicitly.

So structurally, the Constitution acknowledges the possibility or the possible venality of legislators and executives. And that's why you have checks and balances, which includes a judiciary. But venality on the part of the judiciary is not considered. There is no check in the Constitution if you have a horrible person as

22:08 Wes: a judge, except for impeachment.

22:10 Dylan: Impeachment.

22:10 Seth: Wait, wait, wait. I'm getting there. If there were, the only body that could check the power of the courts would be the people from whom the authority is derived. Right now, that authority is indirect through the executive or the legislature, which can do impeachment, which declares that the president, the vice president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors, which is a very, very, very narrow and limited scope from which to be able to bring charges.

There is no possibility for the people from whose will all of these organizations to directly address or impeach a judge, particularly on a federal judge, anyway, in the same way. So my question is that are there these implied assumptions about the judiciary, the role of the judiciary, and about the type of person that would inhabit that role? That created a blind spot and that structurally, the way the Constitution was set up with this checks and balances, ultimately just missed it.

23:23 Wes: What would you do if you were a founding father to. I mean, we can't ensure that all the branches don't go bad and according to the same party. So you do your best on checks and balances. But yeah, for the. And you know, right. We're talking about the federal judiciary. Right.

23:38 Seth: Just you can limit it to the Supreme Court. I think about this in the same way that I think about states that have referendums. It's a highly unwieldy process to be able to referendum like a law or a statute or something like that. And so you see that, for example, in California, it's just complete chaos when you Have a thousand measures on the ballot where all the people are voting on a referendum on whether or not parking signs should be here or there.

24:05 Mark: Weirdly phrased, you shall not have the parking sign, but unless it's next to the other parking sign. And if you don't, if you disagree, you're bad.

24:14 Seth: Right?

24:14 Mark: Yes or no?

24:15 Unknown speaker: Yes.

24:17 Wes: This is. This is precisely what the founders do not want. Right. They do not want referendums, direct democracy, on these things. To change the Constitution.

24:26 Unknown speaker: Exactly.

24:27 Wes: Or to get rid of a Supreme Court justice that they don't like or something like that.

24:31 Seth: That's exactly right. And I think part of that is because the founding Fathers had a very dim view of the majority of voters.

24:39 Wes: And I think they're right.

24:40 Seth: I'm not. I'm just saying the whole point is this system has a whole set of assumptions about the amount of responsibility that should be given to citizens. And part of that limit is that even though power is derived directly from them, we don't actually want to give them the power to take action in certain spheres. We want to devolve that to their representatives.

25:03 Unknown speaker: Right.

25:03 Seth: I think that's why we're a representative democracy. But I think it creates. It's created this wall.

25:10 Wes: I think it's really about trying to give power to a system or a process that is above any particular person. So because people are corruptible and because they're generally unwise and maybe they're wise and they're just unwise in the moment, so they're intemperate and they want to pass a certain piece of legislation that violates the rights of a minority or something like that, you have to put a check on that. And the best way to do that is to take power out of the hands of everyone. Right. It's in the Constitution. It's in this piece of paper. It's in the system. It's in the institutions and the roles themselves. Now, of course, that works very, very imperfectly, but I think that's the goal. People can't be trusted. We need a system that, in a way, almost functions on its own. It's bigger than people, particularly people.

26:04 Dylan: So you're making me think of a quote, so this is a little unfair. I did send it to you guys. We didn't really read Federal.

26:14 Wes: He's pulling a mark here. I'm pulling a mark about what's not in the reading. Okay, but it's a good quote.

26:22 Dylan: We didn't read Federalist 51. Federalist 51 often goes with Federalist 10. And the reason we didn't read is. I forgot to suggest it. That's my problem. But it has a quote in it which I think really applies as a kind of synopsis, I feel like, to the whole standpoint of the Federalist Papers. And the Federalist51 is from Madison. And. And it's mostly about sort of faction and how government would work. But here's the quote. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

In framing a government which is to be administered by men over men, the great difficulty lies in this. You must first enable the government to control the governed and in the next place oblige it to control itself. A dependence on the people is no doubt the primary control of the government. But experience has taught mankind the necessity of auxiliary precautions. To me, that's basically the whole point of what they're trying to do is figure out, argue for the claim is that the Constitution is going to do that. And they're arguing that the Constitution is accomplishing that goal.

And I think, for me, again, I see illustrated already the question of whether or not in each of these arguments for the executive or the judiciary or the legislature, if there's sufficient checks on their power or sufficient control over them. So, Seth, when you were talking, I thought you were going to follow. I was thinking you were just playing a Brutus. I thought you were going to argue Brutus.

27:55 Wes: Well, he kind of. He kind of did.

27:56 Unknown speaker: Yeah.

27:57 Dylan: I was wondering. Yeah, yeah. But you were focusing on the removal from power question. Okay. As opposed to that. I guess it's that version of having too much power. The other point of Brutus was that there should never be this concept of judiciary judging what is constitutional.

28:16 Wes: The judicial activism objection is what Brutus gives us.

28:19 Dylan: Yes. Which was embodied in Marbury vs Madison later. This question of whether or not the Supreme Court really ought to be able to judge constitutionality was a live question for a long time.

28:31 Seth: Yeah.

28:32 Dylan: Well, and still is, actually.

28:34 Seth: Yeah. And I was told my thing had to be less than seven minutes or four minutes or something.

28:41 Dylan: Two minutes for two minutes.

28:43 Seth: But yes. No, you're right. There's the question of the removal of the judges, and then there's the question of should we even have a court? Because strictly speaking, the purpose of the judiciary, when it comes to this particular function, is to determine whether or not the legislature is violating the terms of the Constitution, understanding the Constitution as the embodied will of the people. So the purpose of the judiciary is literally to protect the people from the legislature, whom they elected. That's the part I don't understand.

29:21 Wes: Protect the people from themselves. The will of the people in the broader sense of what was enshrined in the Constitution versus the will of people who happen to be living today and in power and about to do something rash. Right, right.

29:35 Seth: And so there's two ways in which that functions. The first of it has to do with the fact that we have what Hamilton calls a limited Constitution, which is basically a constitution that proscribes, doesn't prescribe. So it says Congress shall not X, Y and Z, but anything that's not listed in X, Y and Z, Congress can do. So the purpose of the judiciary is to say, like, oh, you passed a law and that seems like an X or a Y, so you're not allowed to do that. Right. But then the other part of it is, which gets into the idea of judicial restraint. Judicial activism is.

Brutus, I think, rightfully points out that the Constitution is just words written on a paper. And those words have common meanings. Like, okay, I think I know what an army is, or I think I know what a militia is. At least I thought I knew what a militia was. But that words have meanings that need to be interpreted and when combination with each other, phrases and sentences ironically need to be understood and interpreted and the meaning just doesn't spring full grown off the page into your head unambiguously. And so he says there's no way that a judge can be doing anything other than interpreting.

Already you've set up a system where the judge has to put their own personality, their own interpretation on the Constitution. So what's going to happen is the courts are ultimately going to shape what the laws actually are, what the country actually is. And over time that's going to result in more power for the courts because people just accrue power to themselves naturally when they have it, but also it will expand the powers of government. So it's kind of like an anti Federalist argument as well.

31:14 Mark: I wonder. I looked up who. Who Brutus was. Right. So these were published. Even the Federalist Papers were published anonymously. Right? They were Pluribus was Hamilton and Madison, but of course we just know them as by Hamilton, Madison. It was actually took a little like, well, who's, who's Bris? Well, they think that it is Robert Yates, a New York Supreme Court judge, a delegate to the Constitutional Convention. He walked out of the convention in protest with his friend who wrote some of the other ones. Generally they wanted more liberty.

31:44 Unknown speaker: Right.

31:44 Mark: You would think the People resisting the union would be people who, you know, want the Southern states to be more independent or something like that. But no, it was, it was. I don't know that we want to. We New Yorkers want to make these compromises, certainly regarding judgeships and what the role of the judge. This guy knew what he was talking about. He actually was a judge.

32:02 Wes: I think, you know, Hamilton's point is we want judges that are not. We want people with lifetime appointments unless there's bad behavior, because they're going to be insulated from the politics of the time. And if you look at the way legislators act and behave today and the kinds of intemperate things that they say, imagine if the Supreme Court judges were just like that. Now, I'm sure we all feel very critical of Supreme Court justices, but they do have a certain amount of insulation from that pressure. And even some of Trump's appointments, they've gone against him, which they might not have done if it were just an elected body. So I think there is a point to what Hamilton is saying. Yeah.

32:45 Dylan: For me, in thinking about also what Seth was saying is the question of the check is I often wonder if it was just having it be a really long time as opposed to being forever.

33:02 Wes: 20 years, mandatory retirement age. Is that what you.

33:06 Dylan: Yeah, that kind of thing. Or the Supreme Court, you're appointed for up to 20 years. That's the kind of tweak that I think about.

33:13 Wes: And then there's like a review.

33:16 Mark: No, no, no, no, no review.

33:18 Wes: Let's have a one on one.

33:19 Dylan: You just have a new. Just have a one on one. Well, we'll put you on a piff.

33:25 Wes: That's right. That's right. Yeah.

33:27 Mark: Brutus, our anti federalist is arguing that there is no check on the Supreme Court, but there is. It's future Supreme Courts.

33:33 Unknown speaker: Right.

33:33 Mark: You just get different people in there, largely in reaction because the people might say, wow, that those activist judges in the 70s, they were going crazy. They were just interpreting left and right and creating new rights and, oh, we need to rise up through democratic processes and get presidents and Senate people.

33:51 Wes: The checks are there can be constitutional amendments to the Constitution or just different laws, and then there's impeachment. But then there's also the weakness, as Hamilton calls it, of the judiciary, which is to say that the executive may not enforce.

34:08 Unknown speaker: Right.

34:09 Wes: And the legislature has the purse. So if you can't fund it, you can't do it. So there is, in a way, a natural check on the Supreme Court. It's more like an Oracle. Right. It's an interpreting function. And then the judgment comes, and then are people going to do something with it or not?

34:28 Seth: That's true. And in defense also of the Supreme Court and of the interpretive function, there are other places where they acknowledge. They're like, look, the Constitution is very short, and it just talks about a few specific things that are bound at this time. And world is going to change and America is going to change, and you're going to have to do some creative interpretation to try to understand how what was written is going to apply to new circumstances. And it put me in mind. Are there any other Jews in the house? Probably not. This is.

Okay, we got one. All right. So this is a process that is very familiar to Jews because we have this concept of, like a rabbinic council that interprets the Bible. The Bible is the. For us is the Torah. It's the first five books. That's the primary source of law. And it's very clear, Right. The Torah doesn't cover whether using a spark lighter to light a cigarette constitutes work that you can or cannot do on the Sabbath because they didn't have cigarettes in. Whatever it was. 2300.

35:33 Dylan: Was that a real discussion?

35:34 Unknown speaker: Yes.

35:35 Dylan: Okay. Just. Just checking.

35:37 Seth: So, yeah, the discussion about what is work when you're not allowed to work on the Sabbath, like you're not allowed to flip a light switch. Right. So these were real live discussions. How do we interpret the law? But the rabbis, in some sense, are all on the same page. So even if they have differing opinions. Right. All opinions are good. All interpretations are good. We vote. We're gonna go with this one, and that's how it works. But it's because of the unitary nature of their faith and so forth that it makes it possible to. And I see the Supreme Court as being a very similar structure.

Right. Like you're going to have a bunch of interpretations. Now, in this case, it's a majority, as opposed to, like a strict majority, as opposed to what you might have in a rabbinic council. But I understand. I totally understand the need, and I think it's valid. I just wonder. We keep coming back to this notion of personality and of motivations and the will of the people that are in these roles. That's hard to pin down.

36:31 Mark: Well, that sounds like a segue, right? The thing that is polluting the Supreme Court, you might have thought, like, right, they just need to pick competent people. And I do remember, like, when George W. Bush nominated his. His. His buddy or something, you know, somebody who's just not you know, had never been a judge before. So there's these questions like, can Trump nominate just people from Fox News? And hopefully there would be some. No, no. We want. Fine. We conservatives want strict constructionists, we want originalists. But they at least have to be, like, good judges with.

With experience judging. So that's what, you know, that was the main thing that Brutus was worried about, is what about just pure incompetence? Which, of course, you've raised the issue of, like, well, what, when they were appointed, they were competent. Now that they're 90, are they still competent? Should there be some additional. But, yeah, the thing that seems to pollute everything is factionalism.

37:18 Seth: Me.

37:19 Dylan: So Federalist 10. Federalist 10 was written by Madison, and he begins with a problem that he's really concerned about. He considers the chronic disease of popular government. That's faction.

37:34 Unknown speaker: He.

37:34 Dylan: And he describes it like this. A group of citizens, whether a majority or minority, united by a common passion or interest that runs contrary to the rights of others or to the good of the whole community. He's worried. He's not. It's not an abstract worry. He's thinking about what majorities might seize the lever of the power of government and use them against a minority. He lays out the two ways in which we can deal with faction. We can remove its causes or we can control its effects. So removing the causes, he says, is going to be impossible or intolerable.

So you could abolish liberty, and that ends up being, in his opinion, a cure worse than the disease. Or you could get everybody identical opinions and interests, but that's simply not how people are made. You're not going to be able to do that. So in the end, the causes of faction are sown into the nature of man, and that the most durable of all is the inequal distribution of property. So those causes can't be removed, and it leaves us only with controlling the effects. So to control the effects, he makes this move that in a pure democracy, a small direct entity where everyone is voting on everything, offers no cure for this problem, because a passionate majority can act immediately and without any check.

It's in a republic, by contrast, that you get two remedies. First, you get representation, where you have elected delegates that refine and enlarge the public's view, filtering popular passion through deliberation. So it's a tempering effect. And second, you have scale. So in Madison's day, the conventional wisdom was drawn from another political theorist named Montesquieu, and that held that free governments had to be small, you had to be like a Greek polis in order for it to work. And Madison says, no, that's not the case. In fact, what you want to do is you want to extend the Republic over a very large territory, and you want to have a great multiplicity of interests.

And that makes it much harder for any single oppressive majority to form, and it makes it harder still for them to act in concert. Size becomes a safeguard. So just to put it together, he says that faction is going to be inevitable, and it's rooted in our human nature, and that you manage the effects rather than eliminate the causes, and that a large, representative republic is better than a small direct democracy. And it's the very diversity of a big nation that will be its protection against tyranny.

40:06 Wes: So in a way, it's faction that's the solution to faction.

40:09 Dylan: Faction that's the solution to faction. You just need to have so many

40:12 Wes: that they'll just balance each other out and prevent each other from doing anything. So the complaint that we often get about the legislature, why aren't they doing anything? Is really part of how it's designed. It should be difficult. It should be difficult to pass new laws because there's always the potential that the new law could be despotic or it could violate the rights of a minority or something like that.

40:34 Dylan: Yeah. I think also there's an implicit idea that the things that are actually good for the most of the community will be the ones that people agree on. So that there's a kind. I mean, that filtering effect that's more likely for the good things to align and the bad things to be at odds with one another. I think that's kind of an assumption.

40:57 Seth: Yeah.

40:59 Wes: And now for the pessimistic point of view.

41:02 Seth: Well, no, I think that's right. And the kind of thing that I think he has in mind here is like, if the Northern states could impose an import tax, that would hurt the Southern states or an export tax that would help them because it would protect them, their products, and hurt the agricultural products of the South. You want to make sure that they can't come together and do that. But two other things come out of this. The idea that factionalism, the idea that people are so diverse and they're geographically diverse and their interests are diverse, and you'll create friction for them to come together in a united cause.

And he says explicitly, they're so far apart, it'd just be too hard. All that changes now when you have modern communes of technology and communication. Also, you're talking about a time when the vast majority of the electorate does not go to school or is uneducated. There's a lot of things that have changed. But the other thing is that whole concept that diversity is a protection can be demonstrated quite clearly and explicitly to work fantastically in a country like Italy where you have 17 parties and no party ever gets them, you know, they have an election, it's almost impossible to form a coalition government.

Right. It drives everybody to their own special interest. It drives lawmaking into the form of compromise, which we like, I think. Right. But it is completely violated and nullified by the fact that we have this institutionalized two party system that has essentially just destroyed. It negates the entirety the entire discussion of this.

42:42 Mark: Right. He's not worried about minority factions, but what we have with the two party system is if you've got the majority of the majority, so in other words, Republicans could be 51% or whatever. And then if only 51% of Republicans are, well, that becomes now, you know what a 25% interest now becomes the thing that is imposed upon the country.

43:06 Dylan: Well, and so part of this problem is his idea of faction is going to assume that everybody's acting only in their self interest. And that's going to be true a lot of the time. But there is such a thing as community interest or group interest.

43:23 Unknown speaker: Right.

43:23 Dylan: That people act in. And I think that you see that problem particularly in like the extremes of the two party system. Once in a while you get people who are leaders of the individual parties who also are protectors of the institutions that they're part of, that people will talk about the things that we need to be doing together for the sake of this whole. But if you have people only acting for the sake of their individual faction or point of view, I think that in the end you're not going to have enough of the uniting factor. Madison in this doesn't seem to agree with that.

He seems to think that's going to sort of self organize because it's going to all sort of balance out into a balance of individual particles that are bouncing off one another and it'll come to an equilibrium that's satisfactory rather than there being something that all of them are effectively directed towards. I'm not sure he's right about that.

44:17 Seth: Makes me think of. I don't know that we're going to touch on this anymore in the textual readings, but I look in the audience and I see most of you are of my age, so I'm assuming you learned in school. Something similar to what I learned in school. We had this very pretty narrative about the revolution and our rights and founding of the country against this violation and injustice of the king. And that's why we threw the tea in the Boston harbor, because no taxation without representation. And look, this march of progress, it was just white men and then we liberated the slaves and then women got the vote and we're just moving towards this.

Ever America is about liberty and freedom. Right. Well, you can go back and reread that whole story and you can just substitute all those fancy words with the word property, because many, many things in here and all of these founding documents are about establishing and securing property for the purposes of wealth. So the uniting factor, I think, that underlies much of this thought is the idea that we all want to own things and make wealth because they are the landowners, the slave owners, they're the capitalists of the time. So that's going to be the common interest that we align on.

Not we all really want everybody to have the freedom to marry who they want to marry or, you know, express themselves in whatever way they want. That's not the liberty that you read.

45:47 Dylan: Life, liberty and the pursuit of happiness is. I want to keep my stuff and get more of it.

45:53 Seth: I'm saying I can't help. I can't help but read it that way.

45:57 Wes: Well, it's true. And in Locke and. Yeah, that's explicit here, liberty in part means that others can't just come and take your property willy nilly, including the mother country, England and the government. Right. So, yeah, when they say liberty, they do mean also property.

46:16 Seth: Yeah.

46:16 Mark: Well, this sounds like a segue. Just to get our fourth idea on the table, Wes, do you want to tell us about Federalist54?

46:25 Wes: No, I'm doing Douglas.

46:27 Mark: Oh, okay. Well, we could use Federalist 54 as the. I thought it was the same topic.

46:32 Wes: Right, it is, but it's not. So Federalist54. I mean, I can do that as well if you want, but it's about the Three Fifths Compromise and Madison defends

46:42 Dylan: it in a weird way.

46:44 Wes: Right. So it's this. The compromise is that for the purposes of representation and taxation, slaves in Southern states will count as three fifths of a person. Madison was actually very anti slavery, so he.

46:57 Dylan: Even though he had slaves.

46:59 Wes: Yep. And what he does is he invents a Southern interlocutor who argues the case for the Three Fifths compromise and makes the argument that basically slaves are in part, people. And I'm not going to go into the details of that partly because they're punished and so therefore they're responsible. But in saying that, Madison introduces a kind of poison pill. So it's a very subtle, interesting argument because he's introducing something into that argument which will work against the concept of slavery, which is that slaves are actually persons and if they're persons, they have rights.

And Madison even puts into this Southerner's mouth the idea that slaves have rights. Right. Because we can't just do violence to them. Willy nilly, they have some rights. They're partly people. And then I think Madison, they're held accountable for crime. So I think that's what Madison is doing. I think the Douglass is much more interesting.

47:55 Mark: Well, and Douglass covers some of the same points in the beginning of that speech.

47:59 Unknown speaker: Right.

47:59 Mark: If slaves were considered animals, then you wouldn't prohibit them learning to read and write.

48:05 Wes: Yeah, why don't I just. Why don't I just do it? The Douglas.

48:08 Mark: Yeah, go ahead.

48:09 Wes: Yeah, so, yeah, he gave this speech at the Rochester Ladies Anti Slavery Society in New York in 1852. He begins, he does a sort of feedback sandwich. He says some nice things. He gives some very strong criticisms, as you might imagine, of slavery. And then he comes back to a little bit more of an optimistic tone.

48:31 Dylan: So I never thought of it, but you're right, it is a feedback sandwich. Yeah, it totally is.

48:37 Wes: So he's having a one on one with the American people. So. So he begins by praising a revolution that's a shadow.

48:48 Unknown speaker: Go ahead.

48:49 Wes: It's a great speech. I mean, everyone really ought to read it. And I actually read it on the 4th of July. Instead of going out to see fireworks, I just sat and read this. And I was very happy that I was doing that.

48:58 Dylan: And there are some good recordings, honestly, you should listen because it is a speech. You should listen to it being given as a speech.

49:04 Unknown speaker: Anyway.

49:05 Wes: Yeah, so he begins by praising the revolution and its principles, praising the principles that are in the Declaration, Liberty and all that. But he also makes this really interesting pivot to the idea that, well, if we're thinking about the Declaration, we're thinking about the beginning of our nation. We're thinking about the formative principles that have created our nation. And that should make us think, well, the nation is still young, it's 76 years old at the time, and so it's impressionable, it's still capable of change. He says it can still be educated into something new.

And isn't that great? That's what we should be thinking about on the 4th of July is how we might still change and do something about the things that still are problems for us, so we can become something better. And so one might have thought that rebellion and independence from Britain and a well designed government, well, that puts us in our final form and then we can just move on from there. And if we celebrate the 4th of July, it's look at us, we have a great government. But what Douglas is saying is I think he wants us to celebrate the principles as something that can lead to change because we're not living up to those principles.

And then he asks us to imagine the Great Britain of the time of 1776 as something like an abusive parent. And I think he thought that the genius of the founding fathers was to say we don't have to put up with the abuse, even if that means resorting to violence. There's an undertone in here. It's almost prophetic. He's drawing this parallel between what might have to be done to end slavery and what had to be done to separate from England. He's making a parallel. And this is nine years before the beginning of the Civil War, I think. And it's very clear to him from other writings that he thinks violence might be necessary.

So the declaration is really, for him, it's a declaration of the right to disallegiance. We don't owe our allegiance to abusive parents. We don't owe them to the status quo. We don't owe them tradition. We don't owe them to bad laws or bad inheritance, inherited norms that turn out to be vicious. We can overthrow them. So, you know, he's worried that, on the other hand, that celebrating July 4th can be a cover right for our current ills and the current evils that are going on in the country. And he gives a very extended portrayal of the cruelties of slavery, many of which, you know, he was a slave, I think, until he was 20 and escaped to freedom in the North.

But he also saw many of the cruelties of the slave trade. And he goes into that. But the speech is not just a condemnation of slavery or the hypocrisy of the nation that prides itself on liberty but still has slaves. What he's saying is that the evil of slavery can't be compartmentalized. It can actually corrupt the government. It can even corrupt a well designed government with good institutions and good checks and balances. And the case in point was the 1850 Slave Fugitive act, which it allowed people to essentially kidnap free northern black people and bring them to slavery in the South.

And there was no Due process. They couldn't defend themselves in court. They couldn't bring witnesses. It was just an excuse. And that's. I don't know if you've seen the movie 12 Years a Slave or read that book. I recommend reading it. That's what happened to him. Someone basically just kidnapped him and made him a slave. And that's what the 1850 Fugitive Slave Law allowed them to do. So the attack there is on due process, on the judiciary. Judges were getting $10 for every slave that they returned to slavery if the person really had been a slave.

And that's corruption. And it's corruption of the justice system. It's corruption of the system of justice and due process and liberty and all the things that we hold dear. It also, in the end, he says, corrupts not just the government, but culture. Right. It affects the way people are educated. It affects their values. It affects religion. He has a section where he really excoriates the church for not helping get rid of, you know, for supporting slavery. And contrast that to England, where the church played a big role in getting rid of slavery.

So it really affects the possibility of moral political progress. So I think it's a very interesting idea that is directly related to what's going on in the Federalist Papers, because the form of government can be compromised and corrupted by its content. Right. It's not just, well, there's this thing going on, slavery. And yes, it's against our principles, but we'll get rid of it one day. No. He calls it a reptile coiled in the bosom of the nation. It can destroy the country, and it almost did with the Civil War.

53:40 Seth: Cess

53:43 Wes: just looking at your face, I know you want to make a comment on this.

53:45 Seth: It's such a powerful speech. I mean, I can't. If you haven't read it, it's worth reading. I'm dying to hear one of the recordings, but, I mean, I want to just start reading quotes from this and I have to restrain myself, but I'm going to squeeze. Well, let me get one in. At one point he says, did you ask me here to argue against slavery? It's like, is that an argument? And that's when he says. He starts talking about all the injustices. And he's like, am I supposed to argue that it's wrong to take children from their mothers and sell people? And, you know, like, he's like, no.

He's like, at a time like this, scorching irony, not convincing argument is needed. And he says, let it be thundered around the world. He's talking here about judges that in tyrant killing, king hating people loving democratic Christian America, the seats of justice are filled with judges who hold their offices under an open and palpable bribes and are bound in deciding the case of a man's liberty to hear only his accusers. That's just a taste. When he goes on to the church.

54:45 Wes: When I said feedback sandwich, I forgot to mention, yeah, the middle of the sandwich is really harsh. Really, really harsh.

54:53 Seth: Yes. I mean, he says, he says, for my part, I would say I welcome infidelity, welcome atheism, welcome anything in preference to the gospel as preached by those divines. They convert the very name of religion into an engine of tyranny and barbarous cruelty and serve to confirm more infidels in this age than all the infidel writings of Thomas Paine, Voltaire and Bolingbroke. Together these ministers make religion a cold and flinty hearted thing. Having neither principles of right action nor bowels of compassion. They strip the love of God of its beauty and leave the throne of religion a huge, horrible, repulsive form.

It is a religion for oppressors, tyrants, man stealers and thugs. Maybe that affects me because that's my opinion as well. Maybe, but, but I mean you just don't, you don't see writing like this frequently. You get it from mlk, you get it from Frederick Douglass, you get it from a few other inspired people. And it's pages of this. It's just, it's exhausting.

55:58 Wes: He's giving the speech on the fourth of July and he understands, well, if I just stand up here and give only criticism, some might say, well, why can't we just use this day to celebrate? And they might also say, well, why don't you make an argument instead of just railing against us? People would listen more. This is the thing that imagines an interlocutor saying, but I think the speech does celebrate the country and his criticisms are intimately related to that celebration. He is celebrating the principles of the Declaration. And he has a lot of good things to say about the Constitution and says that there's nowhere slavery is mentioned.

It doesn't support slavery, it's hostile to slavery despite the Three Fifths compromise. And then the founders very meticulously try to avoid as much as possible endorsing slavery in the Constitution or even using the word slave. So I think he gets to be a firebrand without doing something alienating. You can be happy about the Fourth and Proud and all that stuff and sit there and be reading the Middle of the speech and be going, preach, you know, preach. You're right about all that. It's not dis. Allegiance to those principles. Again, he's trying to conjure up in us the feeling that we might have had if we were rebelling against the British government.

We should feel the same way about slavery. We should be ready to rebel totally.

57:17 Seth: I mean, if the principles weren't there, there would be nothing to call the other people to account on. Right. I mean, if it was just like, yeah, no, slavery is in the Constitution, he wouldn't be able to appeal to anybody's consciences. This is prophetic writing. So if you study, you know, and you look at what prophets are in the Bible anyway, and a prophet is essentially somebody who comes at a time when things are bad and says the reason things are bad is because you're not doing what you're supposed to be doing. So turn your eyes back towards God or the law and do what you're supposed to be doing.

And that's exactly what Douglas is doing here. The difference is, from the perspective of the listener, times aren't bad. Right. Because they're in the position of privilege. And so they're, you know, they're like, oh. And he's saying, no, no, listen, if you really adhere to your principles, don't put on the blinders. And I think that type of prophecy is much more relevant than we think of the. You know, some people have the experience right now that this time we're in is destitute. Right. You know that it's just like the darkest times. It's never been this bad in America, you know, with what I assure you it has been this bad and much worse over and over and over and over and over and over again in history.

But it's the fact that we have money and entertainment and diversions that we're not experiencing destitution directly. Where it would be much easier to hear a message of you're falling away from the principles of the country, or you're not promoting liberty and freedom and human flourishing because you're at a bar listening to some white guys, old white guys, talk about philosophy. Or you're watching a soccer match.

58:56 Wes: Old.

58:57 Seth: Right. Or you're checking out what the latest release is. Are on Netflix or whatever.

59:02 Mark: And I'm sorry, all of those at the same time.

59:04 Seth: Yes. It's not a condemnation. I think it's like having the debate between, are we in 1984, brave new world. Right. Are we oppressed by totalitarianism or are we distracted? Right. And I think, like, put the phones down. Like, try not to be distracted. The message is out there. Right. And we can learn from Douglas, because this is a perfect example of it. But the call to conscience exists whether you're suffering or not. If there's suffering in the world, the call to conscience has power.

59:35 Mark: So it seems like. Right. If this is not just a history podcast, if we're talking about, what is the relevance today? Well, how do we talk about. How do we consider what the founders did, given that there was this design flaw that was being recognized here 70 some years later, whatever, by Douglas? Okay, well, that's been fixed. Right. So. So we can acknowledge that. So there's that. You know, how do we think about the founders now, given that they did have this problem at the time? And relatedly, is there something going on now, say, some class of people living among us, human beings that don't have legal rights that could just be snatched up and sent to El Salvador?

1:00:15 Wes: Yeah, there's a direct.

1:00:16 Dylan: What do you speak of, Mark?

1:00:18 Wes: So the. Yeah. What's going on with immigration courts and the suspension of habeas corpus? I mean, there's a very direct parallel between that in the 1850 Fugitive Slave Act. Yeah. They're immigrants, so we can, you know, we can do what we want to them. Sorry, I thought I was teeing you up again.

1:00:36 Mark: No, I. I was trying to get it. Yes, a discussion going on. What now? We've sort of thrown out a few things. It seems like when they were designing this, the Federalist Papers, arguing for it, the people putting the Constitution together, they were balancing competing interests. They were dealing with an imperfect human nature. They were trying to.

1:00:56 Seth: Right.

1:00:56 Mark: There's a lot of mentions in the Federalist Papers, like, yeah, of course, if people have power, they will tend to want to get more power. How do we construct a system to lessen that? But as the quote that Dylan read.

1:01:07 Unknown speaker: Right.

1:01:08 Mark: If there's rottenness all the way down, whether through criminality, human nature, or as Wes has brought up, these structures, these things that are happening such that you thought that the courts should be checking the legislature and should be checking the executive, but there is some sort of common conspiracy to. Well, if we don't get rid of all these people, we don't have a country, then that will make it so that they're not having the checks on each other is supposed to.

1:01:38 Dylan: So this exact kind of way of framing it is why I think it's really good to end our review on Douglas because, I mean, I can't think of a Better example of saying, look, things can be really just bad. But there is a idea, a core idea, that is the unifying, in fact infusing and motivating notion about what it means to be in America and means to be an American that Douglass is holding onto. And to say that for someone who is not a citizen, who is subject to arguably some of the most egregious oversight in the founding of America, to say that there's still the notion, the idea that is something to be grown into, and that arguably the country is strong enough to endure that.

And I think, Wes, you're right that in the end, he thought that it wasn't going to endure it except through violence in that case. But that, I think, for me, is the salient question. Right. The notion that it's corrupt all the way down is just not true. If that's true, then everything just has to get thrown away. And Douglas is completely wrong.

1:02:53 Wes: Okay, well, corrupt, yeah. I mean, there's the institutions and the way the government is set up and the principles, but then there's the character of people. There's the character of the. And the norms by which they're functioning. They don't have to observe any of these rules or principles or comply with the institutions. And if everyone conspires to do that, that becomes a big problem. So it's the character of people who are in the courts and the legislature and the executive, and it's also the character of the people, of the nation as a whole.

And that's something that Douglass again points to at the end. And it's an old philosophical problem. People were worried, like Schiller was worried about this with respect to the French Revolution. You can have all these great principles, but then human nature takes over, and suddenly you have a terror. Are the people ready for this? How do we educate them for this? Do we need people to be educated in a certain way before this government can even function? That's a very serious problem. Lincoln, we did an episode on his Lyceum speech, which is in 18.

So a bit before this, and that was the year when there were the most lynchings in the country. That was the peak. And Lincoln says, this is a mobocracy right now. This is lawlessness. And people have fallen in love with lawlessness. And people. What is the solution? They have to be educated to love the law more than they love these particular passions that they might have at any given time. And you're left with it kind of. Or I was left with mixed feelings that it's a Great. It's another great speech. But really, are we going to really be able to do that?

Can we really depend on making people love lawfulness when it's obvious that for the most part, they don't? And then the other thought I had is like, well, Lincoln is such a great example. His character. It's a lawful, ordered character. It's someone who's thoughtful and cares about the laws and cares about the principles and. And it's an education just to be in contact with a person like that, even if it's just through the written word. That's another way of saying we might need role models.

1:05:02 Mark: Well, and there is something inherently elitist in the way that the system was set up. Right. That we've got the Electoral College. And some of this was having to do with just. We're talking about the state of literacy at the time, the state of communications at the time. The idea with the Electoral College, hey, you. You know that wise person in your society, in your local community, you can. You know their name. You don't know anything about the president who's way off there. We're going to just elect the elector, the elector you can trust, and they will make the wise choice.

Okay, well, we know how that particular thing turned out. I don't even know the names of the electors. I. Do you know the names of any electors? And they, you know, they're supposed to be faithful electors. There's still some. I don't know, is it legal right now for them to. I think they can still be unfaithful. Right. That they were. I voted for Trump via these people, but.

1:05:48 Dylan: These people.

1:05:49 Unknown speaker: Yeah.

1:05:50 Wes: Okay.

1:05:50 Mark: So it depends on the state, but that was definitely built into, like, if they found. Right. Somebody was. Was duly nominated and all the votes happened and the electors are there at the convention, and you found out, hey, actually, somebody said some. This person you've elected said some really nasty stuff on this videotape that maybe the electors will want to consider. Maybe they need to swap in somebody at the last minute. This would seem savage to us at this time. That's violating representative government. At least the vote should lead to the person that was. The objection to. Kamala is like, well, whoever nominated her, whoever voted for her for the nomination, it was some sort of machination in substituting her.

1:06:32 Wes: Well, yeah, yeah, it's a violation of direct democracy, but it is how representative government works. But it's. You have to understand the motivations at the time, which is the balance between state and federal power. So the whole electoral college thing was about and various other measures in the Constitution was about preserving a federal system in which there is still a certain amount of power for the states as well, beyond the whole layer of representation between the people and the president being elected.

1:07:04 Mark: Yes. The other Federalist paper that we read 39 was on this federal versus the national system and arguing hey, you know, right. Direct democracy. You inevitably get a majority faction that says let's beat up on the minorities. Like you're just always going to get that whoever, whatever the majority religion is is going to persecute the other one. So we need the Bill of Rights, we need other things like this. And one of them is this breakdown between states. And as Dylan was saying about factionalism. Right. If you have the states have separate powers. Well, probably the mania that is going through Virginia is not going to be the same as the mania that's going through New York. So they're going to cancel each other out or at least neither of them is going to be able to take hold and screw everything up.

1:07:46 Seth: Yep. So are we. Where are we at?

1:07:50 Mark: Well, I, I was still just asking this general question of we still feel like, I think whatever political party you're part, whatever that there are some people whose vote should count for let like you hope they don't vote. Right. The UN Is it the uneducated or the brainwashed or you know, there's some, do we not still retain some sense of elitism that you would like that, you know, people who know about climate science should make decisions about climate science as opposed to the mania, you know, saying the, oh those university trained elites, they're trying to hold us down. And so we're going to just decide things based on, you know, the whim of somebody who doesn't know anything. That, that's, that's, that's straight up majoritarian democracy. This is exactly what the founders were worried about.

1:08:37 Wes: So aristocracy.

1:08:38 Mark: So. Well, it seems like we need, this is part of checks and balances and maybe against going back to unitary executive. Right. That specifically we said, the Supreme Court just said like well you can't just replace the Fed for no reason because we really want somebody who knows what they're doing with the money. You know, not just do what you

1:08:56 Wes: want with all the other ones, but don't mess with the interest rates. All right.

1:09:03 Seth: It's funny because what I'm hearing Mark say is the country was founded on the principle of elitism. Thank God.

1:09:12 Mark: Because if you buy every single philosopher that could criticize straight up majoritarian democracy.

1:09:18 Seth: Yeah. Because people haven't changed. They're the same today as they were they then. And we need to. So that's not the problem. The problem, whatever's gone wrong with the country, it isn't because we have a Senate and a House of Representatives and an electoral college and all that. Because we got to continue to keep power out of people's hands. I, on the other hand. I, on the other hand, was arguing about putting in a popular referendum to be able to get rid of Supreme Court justices. Right. Or something like that. So I must be on the other side of the coin.

1:09:48 Dylan: You were arguing for that? I thought you were arguing against it.

1:09:51 Seth: I was saying that would be the only remedy as structured by the way that the anti federalist was positioning it. I don't know whether that would be a good idea or not, to be honest with you.

1:10:00 Mark: At the expense of a national reparation.

1:10:02 Seth: It would be just terribly expensive.

1:10:04 Mark: Thomas, who's going to die within the decade anyway?

1:10:08 Seth: Well, it's also totally arbitrary. Whoever happens to be the president at the time. Time is the one who gets to nominate whoever happens to die. That seems pretty arbitrary to me, but whatever. So from my perspective, like anybody, those of you who haven't listened to the podcast. Wes called me a pessimist.

1:10:27 Wes: You call yourself a pessimist?

1:10:30 Dylan: He's only quoting.

1:10:31 Seth: I consider myself a realist as far as.

1:10:34 Dylan: Of course you do.

1:10:36 Seth: Every pessimist.

1:10:37 Dylan: Every pessimist considers himself a realist as

1:10:39 Seth: far as human history and human behavior is concerned. So I don't think people have changed. Like whatever the motivations were at the founding of this country, we're no different as human beings. And if those things were the structures they put in place were designed to try to control those impulses or bulwark against them or whatever, I think great. However, I do think that technology has changed. And one of the things that really aggravates me about readings for particularly Supreme Court decisions is when court decisions are based on the status of technology at the time, they're not.

You know, it's like, well, the fetus is only viable at this number of weeks, so that's the cutoff. Well, as soon as it's viable at another time, you just change the law. Right. And with respect to the way in which communication happens in the country and with respect to the way commerce happens in the country, with respect to the way at this time we were in this mercantile economic system, the manufacturing wasn't taking place overseas, people weren't on the phones doing tech support in the Philippines and Panama, right? That they had to worry about.

And so I think taking a look at how those sorts of things have impacted the principles that drive the structure and the founding would be very beneficial because I think that we might change a number of the ways we think about the structure of the government. And you see this running up now when it comes against, like, crypto, like, I mean, yes, there's going to be a debate in the late 19th century about the gold standard, whether, you know, we should have specie and do all that kind of thing, but the idea that a currency would not be tied to a nation.

I mean, look, the fact that I'm assuming everybody here is an American, if not, I apologize. The fact that you are an American is just total accident. You happen to be born to two people who happen to be in a particular physical place on this planet at a particular time. Nationality, government, nationhood. It's totally random and arbitrary. And the idea that somehow we can perfect that so that we can have, you know, like, this is what Hegel. We weren't supposed to talk about Hegel. But, I mean, I can't. I can't help it.

1:13:06 Wes: And you're the idealist.

1:13:08 Dylan: We left the buzzer.

1:13:09 Seth: I can't help it. You know, Hegel talked about these changes in evolution, and he thought that we were evolving towards a perfect society, if you will. Like, you know, they're all going to be realized together in absolute spirit, which, if everybody on the planet doesn't have mushrooms, might actually happen. But the idea that a nation is supposed to persist, why, it's just an accident, folks. We might be done.

1:13:35 Wes: Well, what else?

1:13:36 Seth: Our time might be over. It might be time, maybe, if it's based on how we are as human beings and what we believe and the kind of conviction we have. Maybe you need the upheaval, maybe you need the revolutions to change the. The conviction so that we can lay a foundation for the next thing. There's nothing that says that America is supposed to go on for another 250 years. They tried to build a structure that would last and adapt, and so is this. Maybe that's not possible.

1:14:03 Wes: Do you prefer something else?

1:14:05 Seth: Do I prefer something else?

1:14:06 Wes: Is this you coming out as an anarchist? No.

1:14:08 Seth: You know, that's the thing. When I was. I grew up in the. My dad was in the military and I grew up on Air Force bases. So when I was a kid, there was nobody more patriotic than I was. And I lived this idealized childhood of growing up on air Force bases where everything was structured, everybody had a rank right and we were there defending the country and playing golf.

1:14:30 Mark: Did they call you Little Sarge?

1:14:32 Seth: They didn't call me Little Sarge, no. No. And I really bought into it. I have bought into it for a long time. And then, you know, I visited Europe and I was like, wow, people here just seem to live life a lot better. There's a lot less.

1:14:45 Dylan: Just.

1:14:46 Seth: They seem chiller, like everything's. The food's better, like lots of things are better. So I was like, maybe the American thing isn't quite. And I got into love it or leave it, Seth. Well, yeah, and then I got caught up in that. I mean, you know, there's Reagan years and all that, but ultimately, what I came to understand is what I said a little bit earlier is that the narrative I really bought into, the freedom and liberty narrative. And I'm an ideal, you know, Like, I like big ideals and I like that kind of stuff. And then you find out that that's just the story that somebody's telling you. And there's lots of other stories and they're not as pleasant.

1:15:23 Wes: And, well, you can love the principles without, you know, deluding yourself into thinking that the country perfectly exemplifies them and.

1:15:31 Seth: No, exactly. But the problem is this is where the rubber hits the road as you realize if you love the principles and you're not going to take action, then you're just. Me. You got to organize. So it puts a. It's put a big burden on my conscience.

1:15:46 Mark: So I think Seth has started us on some sort of conclusions before we. Before we pull out the. The audience mic and invite you all that you have been holding in these thoughts that you can't. I mean, there are a couple thrown tomatoes and things. I don't know if people remotely can see that, but for the most part, you've been very attentive. Attentive and quiet. Do we have anything in terms of where we're at right now, Wes Dillon, before we pull that mic out?

1:16:15 Wes: I don't think so.

1:16:16 Mark: You don't want to give your anarchist screed right now.

1:16:21 Wes: No, I will say, since Seth said he grew up on Air Force bases, I mean, I grew up. I was born here, but I spent my childhood in England and Ireland. And so I came here when I was nine. Right. Nine or eight. And I remember first time in an American classroom and having to do the pledge of Allegiance. And I'm like, this is a weird place that I've come to. What is this? I mean, I was, you know, Ireland is no different in a way, you Just like your classes are about how great Ireland is in Irish culture and history, and they make you learn Gaelic and all this stuff.

But I'm just like, pledge of Allegiance to the flag. I thought that's the. This is weird. But I don't know why I'm telling that story, except to say that my. Yeah, I never. Right. I was never in love, so I never had a falling out. And I was more interested in these principles, I guess, than in the failings of the. I mean, I was always. I was very interested in the failings of the country per se, too. Man. I started watching, like, the party conventions as soon as I came. I started having opinions as soon as I came here about what America should be.

So, I don't know, maybe I'm saying that your fall from patriotism is what makes you a realist.

1:17:35 Mark: A realist.

1:17:36 Wes: Not a pessimist, but a realist.

1:17:37 Seth: A convert is always more strident.

1:17:38 Dylan: Yeah, well, I guess I just feel like, with all. I guess, due respect to the notion that there are real challenges, the notion to me that nothing is meant to be permanent, so maybe we should just burn it all to the ground is just so far away from a sensible reaction. And maybe I'll just put it this way that I guess I'll just say I am a true believer and I don't have to believe as hard as Douglas did, but I'm a true believer. That way that we have the pieces in the founding ideas that still animate our country and animate the very notion of it. And I think that, contrary to some that are talking about this question now, I think America is quite unique in this way of being found on an idea.

And that makes it really powerful and also really accessible to everyone. And it also means that we, individually and as a community and group, have the power to shape and revise that idea. And that it also means that if it's built well enough, and I happen to think that overall it has the pieces that make it robust enough doesn't mean it doesn't get strained. It doesn't mean that there aren't things that have to. There isn't real work involved, particularly by the individuals along the way. That was what I said at the beginning, is that it's one of the.

Has the most power for being the most enlivening place you can be.

1:19:14 Wes: At a minimum, reading the Federalist Papers, I always do get the feeling, like, isn't it really cool that a bunch of people with these kinds of philosophical chops thought about, how should the country be arranged. And they're influenced by Locke and Montesquieu and other people. So someone actually put thought into how it should all work. And then they did it. And these are people. I don't know. How old was Hamilton when he wrote the ones we read? He was 13 or something. Young guy. Yeah. And, you know, this is just what he's doing in his. You know, he took a short time. When he's not dueling or something. He took the shot. There you go. He had to go get himself killed at 49 by the Vice president.

1:19:55 Mark: Think about this.

1:19:55 Wes: Murdered by the vice president. Yeah.

1:19:57 Dylan: I'm not saying that things aren't for me. I think there are all kinds of things that are really problematic. And I also think there's some things we have to think about where our laws work. And there are real vulnerabilities that have been revealed, in my opinion, about what is necessary in our institutions. But it's also not. It's also the case we don't have Secretary of Treasury or Secretary of State. What was Hamilton?

1:20:23 Wes: Treasury.

1:20:24 Dylan: Yeah. Having a duel with the Vice President and shooting him or getting shot by him.

1:20:29 Wes: Getting shot by him. He fired into the air, apparently. And. Yeah,

1:20:35 Mark: yeah, I saw the musical I got for my last thing. I'm always struck when I read these political philosophers how precious they regarded government to be because, you know, we could collapse in anarchy and war at any point. And it's only sort of a spoiled, peaceful society like ours where. Where young people could be. Burn it all down, you know, on the left or right.

1:21:00 Unknown speaker: It's just.

1:21:01 Seth: So I agree with. Are you saying I'm a young person,

1:21:04 Mark: that it is ridiculous to think that way. So the, The. The system was designed to be flexible, to give expression to the steam before it explodes into something. But clearly with the case of slavery and the Civil War, it didn't work. So right now, like, I feel like there. There's things in the Constitution in. In our past. Right. The fact that amendments used to be a thing and now it just seems like, oh, you're never going to. Factualism is so set in that we're never gonna get any new amendments passed. We're never gonna even just getting an age limit on elderly. We sort of. It seems like it's a majority view that if you're 90, maybe you shouldn't be in the com or, you know, have to. Have to.

1:21:47 Wes: Okay. I thought that was going like a Logan's Run direction, the cognitive test or something. Yeah.

1:21:53 Mark: So how can things that people actually agree on. So I'M very open to rank choice voting and just whatever we need to do to make sure that, you know, after Trump someone says never again. What can we do to reconstruct, to keep the very little bit of elitism that is harmless, that keeps us from the passions, the passions of the people. Right. It's in there in the system. If we just were to apply the system consistently, I have a lot of faith that we would not have another civil war, that we don't have something as serious and flawed and overpowering as slavery. Still, you know, whatever's lingering is pales in comparison to that.

1:22:36 Dylan: I do want to make a comment about elitism, which is it is never ceases to amaze me for a country overall that so much like sport and so much values the notion of somebody being really, really good at something that there would be any argument at all about somebody being really good at, I don't know, running a government. That's a solution. The solution is for something that matters as much as running a government. Well, is that what we want to do is have people who know nothing about such a thing or know nothing about doing anything that that's the reason why you'd want them.

1:23:17 Seth: We should have an NFL combine for the president and.

1:23:21 Dylan: Yeah, what's your 40 yard dash? That's what I want to know.

1:23:26 Seth: Hear ye, hear ye.

1:23:28 Mark: We are starting the Q and A portion of the program. All right, who wants to start?

1:23:35 Unknown speaker: You had mentioned earlier, please correct me if I'm wrong, that the uniting factor between the factions was the assumption that everybody wanted to accumulate wealth and property and that liberty in part is defined as ownership of private property. My question is, could you talk a little bit about the Reconstruction amendments as the abolition of private property and the wiping out of the Southern aristocracy and what we can learn from that to wipe out the Confederate esque aristocracy.

1:24:03 Wes: Sounds like a Seth question.

1:24:07 Mark: Seth, you're the one who made the

1:24:09 Dylan: claim that none of this is about liberty, it's all about money and property.

1:24:12 Seth: I didn't see.

1:24:15 Wes: I think it is more than property, but.

1:24:17 Seth: No, no, no, it includes property. Part of the bane of being a realist is that optimists like Dylan always give the most extreme interpretation to everything you say. I mean, we can rewind the tape. I never said burn it all down.

1:24:34 Wes: But you implied it.

1:24:36 Seth: Nor did I say implied it.

1:24:37 Dylan: We can rewind it later.

1:24:40 Seth: Think about it in terms of like scientific paradigms. Right. My perspective is that as long as you cling to that idea, you're narrowing the frame of reference and the tool set and the way in which you want to approach a question. And I'm saying, what if you open that up? If you are pessimistic about things, you will take a look at assumptions and foundations and not just the mechanism. You're not going to keep trying to squeeze the Constitution to make it work if it's fundamentally flawed. You're not going to try to make America perfect. If the concept of America is fundamentally flawed, you're going to come up with a new concept. Right.

1:25:16 Dylan: Well, so what about Ben's question about.

1:25:18 Seth: That's what I'm trying to.

1:25:19 Dylan: You're going to talk about the activity of the amendments and the Reconstruction amendments as a way of revising the Constitution so as to move it towards a more authentic version of the vision for America. That's what you're going to say?

1:25:41 Seth: No, what I was going to say is that I thought Wes should say more about the three fifths, you know, and talk a little bit more about the concept of person and property in the slavehood, because that's kind of the origins, and then we could get further on that. But that was what I was going to ask Wes to do.

1:25:57 Wes: Okay, you want me to give a little bit of a summary of this?

1:26:00 Seth: Yeah. About why slaves were property and people at the same time and.

1:26:04 Unknown speaker: Because that's.

1:26:04 Wes: Okay. So I'll just try to do this very quickly. But we begin with the fact that for the purposes of both representation and taxes, we count the number of people in the state. And then slaves represent a special problem because in a way, the south wants more power. It says if you count the slaves. But then. Right. There's a danger to that because it would give the south extra power for people who can't even vote and aren't represented. So the compromise is really about giving into the South a little bit so they'll enter into the Union, but also setting the stage for admitting the personhood of people who are slaves.

So, yeah, he puts this in the voice of a slaveholder, and the slaveholder, he makes the slaveholder say, well, why should we count these slaves if they're only property? Well, they're not just property. Yes, they are property. There's forced labor. They can be sold. We can tell them to do what we want them to do, but they are protected against violence. They're punishable for their own violence. So there is a mixed character. And this is the thing that I thought Madison was insightful to do. I called it a poison pill, but all right, you want to count your slaves.

We'll let you do that. But by doing that, you're admitting that they are not just property, but they're also people. So I think that's the sum and substance of this.

1:27:33 Dylan: Yes, I agree with that. But I take Ben's question to be really about commenting on how one of the most dramatic changes we have, the set of amendments that come after the Civil War, the Reconstruction Amendments, as being at least an example of. Of something about the dynamic or the plastic character of the Constitution and the ability to revise it and how that plays into the question of whether or not the whole question is about property and the protection of property as opposed to liberty and the protection of liberty in individuals. And I guess my own thought on it is that part of liberty is underpinned by the.

The possession of property. There is also the part of liberty, I think, that maybe we most naturally think of first, which is being able to pursue our own happiness and our own flourishing in our own ways and our own terms, with the caveats regarding sort of us being together in a community and so forth. And I think that you do see that with the Reconstruction Amendments because you have the individuals who were excluded from the rights of the Constitution being explicitly brought into that. And so there's an acknowledgement of their liberty and what it means to be a person and a citizen that is underpinned even more than in some ways in the Bill of Rights.

I mean, the Bill of Rights you have that the Bill of Rights are amendments. Actually, it's a good thing to remember that the Bill of Rights aren't part of the Constitution. Well, aren't part of the original drafting of the Constitution. They are amendments that are added in that are about individual, often individual liberties and individual protections against the reach of the government. But I think you have that underlined with the Reconstruction Amendments.

1:29:26 Wes: And I want to just add one thing about factionalism. Madison doesn't say that it's just caused by class divisions and unequal division of wealth. He does say that that's one of the principal causes. But he also says it's just really part of human nature, tribalism, basically. He calls it self love and vanity and all of that. And he looks at like the difference in people's ownership of property. He looks at this in terms of people having different abilities and right. There are social hierarchies in society. There are hierarchies of prestige. And I don't think he thinks you.

You can do anything about that. And that's a real problem. Even if there were a purely socialist or communist society, which he kind of evokes here. And he says this is one of the things he wants to avoid. Paper money is evil, Communism is evil. But even if that were the case, we'd have to deal with the problem of hierarchy and social hierarchy and the right narcissism of minor differences that. That can create. It creates a lot of conflict, it creates a lot of faction. You know, this is the kind of thing that Jonathan Swift parodies in Gulliver's Travels, is the big Endians and the little Endians.

People crack their eggs on different sides. If we ran out of big issues to fight about, we could certainly fight about trivial nonsense, which we do. So it's quote unquote sewn into the nature of man. And then there's also cults of personality, zeals for different leaders, even zeals for celebrities. He thinks there's all sorts of causes within a society for factionalism. And so that's a prime problem for a constitution or for a system of government to solve. But sorry, I got us a little off track from the idea, you know, you were onto the idea of the plasticity and the ability for reform.

1:31:15 Seth: The way I would characterize it is that the ability for reform. Plasticity is there, but that's not the drive. No, it's the opportunity. Rights aren't given, they're taken.

1:31:30 Wes: Where's your Che Guevara T shirt?

1:31:33 Seth: Hey, this is.

1:31:34 Wes: He's wearing felt.

1:31:37 Seth: I had many, many T shirt options I could have worn today. But you know, they always say, like, well behaved women rarely make history. Right. Nobody's gonna give the vote to women or, or to black men or whatever. Like all this stuff has to be taken. So credit to the structure of the constitution that we're set up in such a way where there's a pathway for that to happen. But it's a struggle. It's a fight. And to struggle and fight and revolt and put your life at risk, you have to have the motivation like I was talking about. Maybe you need a revolution to get the motivation to go.

So Mark said we haven't had an amendment in however many years or whatever. Right? Well, what's the motivating factor? What's driving us? What would drive us? I think the mechanism is still there. You think as a society we aren't in a place where we could come together to make an amendment. But maybe that's not the issue. Structurally, we still have the ability to do that, but we haven't. We're not faced with a crisis, an existential kind of crisis that would drive that kind of behavior. And after the war, we were so. There were all these. There was this flurry of activity and then it dies down because they were taking advantage of it.

1:32:42 Wes: You're pointing to an important point that I think Frederick Douglass was making, which is that there's always violence, the potential for violence on the horizon, and we want to avoid that, but we can't avoid it at all costs, which is what the Declaration is basically saying. You know, we tried to negotiate with you, King, but you scorned us and we have no other choice. And it was the same thing for slavery. But we do want to not just tear it all down now. We do want to avoid it as much as possible, but that doesn't mean that in principle we have to avoid it at all costs, at the cost of liberty.

1:33:18 Unknown speaker: So my name is Russell. It sort of builds on a bit of what you're talking about here. But one of the things that I wonder about, we talk about property and private property and stuff. But what about in the context of today where we have a lot of corporate power and when do we get to the point where the Constitution is such that it can no longer function because of these other power bases that were never conceived of or understood when they first wrote the papers? Like, is that something that I guess maybe goes to Seth's point, gets to the point where it can no longer function?

1:33:51 Mark: That was actually my thought with Ben's question, is that when we have a fundamental philosophical change in the nature of personhood, say, that should cause some problems, right? These people were property and now they're people. Well, okay, so I guess we got to take them from the people that own. Like it's just unavoidable. We could, you know, okay, maybe we need some reparations. We need some soft thing. We need to do something to keep from civil war. But when the Supreme Court said that for the purposes of speech, corporations are people, no adjustment seemed to be have been required. It sort of just happened without us noticing it. But that seems like just as significant a ontological event.

1:34:27 Dylan: Well, but Russell's talking about not the problem of corporations being understood as people for the sake of speech. He's talking about the problem of corporations have. I'm just putting words in your mouth. But the problem of corporations having power outsize of individuals or even individual communities, and that there's something unbalanced and maybe unforeseen about the level of power influence where you have some corporations that can be individually some enormous percentage of the gdp or something like that. And that kind of imbalance doesn't seem to be explicitly have a check on it necessarily.

My answer to that would be I think that that observation is basically right, but that means that we have to have a revision. So in that sense, again, I think it's pretty obvious I'm a plastic Constitution person. And so I think that that means that in the event that we have changing circumstances such that we have to adapt to them and they're real, we need to be making revisions to law first and then if necessary, to Constitution to account for them. And this is something that. I don't know.

1:35:39 Wes: It's just.

1:35:39 Dylan: It's not American government. I think just government in general. It is a problem that our technology, and I think our technology feeds our economics goes faster than our ability to address it. And I don't know exactly what to do about that problem. One thing might be to just decrease the average age of the Senate to something besides 80.

1:36:03 Wes: It's worth saying that the Founders are thinking about this. And this I think is in the Madison Federals paper where he says it's him and Hamilton. But we want to prevent the powerful people, you know, rich people from having all the power and how we do that. So right. They represent the election of legislators is one way to do that. Other checks and balances. Of course, it's imperfect. And maybe we could think of corporations as especially powerful factions, but also factions that have a unified interest. Right. If they all have the same interest, they can make government operate in a way that. Right. Favors the wealthy or favors the powerful or something like that. And they're doing that not just through lobbying, but essentially through the use of money and if not outright bribery, something akin to it.

1:36:49 Dylan: You're reminding me and Russell's questions remind me of this too, that it's not explicit in, certainly in what we read. And I just don't remember if it's explicit more in the Federalist Papers. But there is a capitalist founding of the country as well. It's not just the Constitution. There's an enablement. And Hamilton was a partisan of this. There was the generation of the treasury and the bank and stuff like that. Things that were the economic engine that was to be America went right along with the federal constitutional engine that was to be America.

And part of the Declaration was saying we want to be our own engine. And part of that was economic as well as, I'll call it political. I do think that the terms of how that economic engine works is in a kind of strain of influence. I'M not enough of a historian to know the parallels exactly. And the distinctions between the late 1800s and the robber baron age and stuff like that. But there's something like that that's going on, and I don't know exactly what it is, but we have not figured out what the laws were. I mean, the response to that was to break up Standard Oil and to break.

Break up monopolies and stuff like that. We have individuals that have more money than those companies ever did right now, and we haven't figured out how to deal with it.

1:38:09 Unknown speaker: Hi. I'm kind of interested in the question about the national idea. Right. And how to keep people bought in to that idea, I guess. I'm a high school history teacher.

1:38:23 Wes: Right.

1:38:23 Unknown speaker: So that's my job. Yeah. And I've been listening a lot to people who are arguing that the Enlightenment, it's inherently. I want to say Judeo Christian, not just Christian, but it is like an inherently religiously motivated belief system. Right. All men are created equal. There's this idea of a creator right there. And I know you weren't supposed to talk about Halo, so I'm sleeping.

1:38:49 Seth: Your bed.

1:38:50 Unknown speaker: There is this idea we've lost that belief. I'm curious what you guys think about the loss of that belief. Meaning that the thing that underpins these very secular ideas is losing its power as well. Just sort of that thought.

1:39:09 Wes: Yeah. I think the notion of equality is very relevant here because part of the function of a creator or a God is to confer some sort of recognition that is not recognition for wealth or accomplishment or ambition. It's something that we all possess by virtue of being human beings. And so the conception of rights and liberty and recognizing those rights, that's sort of the secular version of that. So your question is, how do we do one without the other, without the religious underpinning? Yeah.

1:39:41 Unknown speaker: There seems to be this new argument that the reason that we're losing that idea is because we're losing because we are no longer a religious. I'm not religious, so I don't buy into that. But it's an interesting.

1:39:55 Mark: I feel like we're pretty good at taking things for granted. Right. My initial thought of how we should open the show was let's read the beginning of the Declaration of Independence there and just look how problematic philosophically some of these things. Right. We're endowed, even putting aside the creator part. But we have that there are natural rights. That is something that John Stuart Mill called nonsense on stilts. That there are legal rights. That is things that we've gotten together to agree. We don't want people to fall below this level. But to say, oh, it's just natural, but it's a pretty handy. Or to say that there's this natural equality but like Per Nietzsche

1:40:34 Wes: is no such thing as morality. Right. Because it's tricky to try to ground it and.

1:40:39 Mark: Right. So I, I think we do actually very well to talk about rights and good and evil and things like that without thinking so much about the meta ethical foundations. And we're okay with that. You know, it could at least last centuries before it is seriously toppled. So I think you could, you know, have people of different faiths or no faith at all arguing about should this be a natural right. What they're really arguing is should this be a legal right? Right. I'm now going to name draft Rorty. Right. Who is. All morality is just sort of what we end up agreeing on, but with the idea that this can continually improve and it's an ongoing conversation. And if you think you can. Well, but what is, what's the real. What does God really think about like that? That's just sort of childish thinking.

1:41:25 Wes: But if you ask whether something should be a legal right, you, you have to appeal to some extralegal standard or the question of what it should be doesn't make any sense. So the fact that it's philosophically very difficult to say how do we derive that standard?

1:41:42 Mark: All right, we're going to get into a meta.

1:41:44 Dylan: That's only.

1:41:45 Wes: No, you got us into it. I warned you again. I said don't do it.

1:41:50 Dylan: But that's only if you think that should depends upon something extralegal.

1:41:56 Wes: It requires some external standard.

1:41:58 Dylan: The rules of the game don't require an external standard to say that we were given the rules of the game from something outside of human beings.

1:42:06 Wes: We can't say what should the laws be by appealing to other positive law, human made laws. Right. We have to.

1:42:14 Dylan: You can appeal to what you want the game to be like. Right?

1:42:19 Mark: Right. So there's an ethical view called non cognitivism which says when you say this thing is good, you're not actually raising it to a standard. You're not like saying your shoe is a size 10. You are saying yay, that thing. Yay, voting Yay, no suffering. And you know, objectivists about morality don't like that. They don't want it just to be reduced to. I'm arguing one thing and you're arguing another. But folks like Rorty have argued that. Well, that's kind of where we're at. It's just, you can say some people have thought about things more than. It's not that everybody's opinion is equal. And so if somebody who's thought deeply about human nature and experienced all sorts of suffering and observed says yay to no suffering, and some ignoramus says, boo, you know, maybe you should listen to the. The one who. Who knows more.

1:43:06 Dylan: In the context of the question of is there a way to talk about what we want to be as a country that is outside of a specific religious founding? My answer would be is that yes, it is. And that's because there may be lots of ways into that, and there's certainly, I think, a Judeo Christian way into that, But I think there are also lots of other ways into it, and that's part of what makes it powerful.

1:43:32 Wes: Yeah. Like when I say external standard. It could be religion, but it could be Kant. Right. We produce our own laws. It could be version of Kant. Like people should listen to our Coorsgard episode. But the question is, yeah, how do you ground normativity if it can be grounded? And Mark's bringing up an important objection, which is maybe it can't be grounded, but we need. If we think there is such a thing, we do need a grounding. And there's lots of clever different ways to try to do that without religion. But you could also try to do it with religion.

1:44:07 Dylan: I guess I would say that there's the part where you say, well, what is it that we want to have? What is a.

1:44:15 Wes: Well, I'm a serial killer, so I know what I want. How do you tell me that I can't?

1:44:20 Mark: Well, good thing. Serial killers will remain a minority faction and will not cause any. We got one more. One more last comment from somebody. Question.

1:44:33 Unknown speaker: Maybe if you could talk a bit more about the future. We've talked a lot about history and based on where you see now, the challenges of today, how do you think in a few years time, how are we going to be talking about the Constitution?

1:44:45 Wes: Wow. Yeah. Hard. And I feel like we've really interesting.

1:44:49 Mark: We could line ourselves up in terms of. Wes, I'm not sure about you. In terms of your pessimism versus optimism versus, you know, this is a flexible system and that we could do something with. And so I'm going to be part of the solution.

1:45:02 Wes: I never said I'd try to be part of the. I'm just.

1:45:05 Mark: I'm asking you where you lie, not fall in this line.

1:45:08 Wes: Pessimism versus optimism. I don't really know, we have to try to do our best. I'm not optimistic about human nature. I used to want to write about politics, for instance, and try to make these fine grained philosophical. I'm like, this is absolutely pointless because it just ends up with someone in the comment section calling me a bigot. So I'm not going to do that anymore. I still want to write, but I don't fool myself into thinking that I'm going to persuade some large group of people. I think, like the comment I made about Lincoln, that's kind of the way I feel.

We just, we have to try to exemplify it and do it and be thoughtful about that and cultivate a certain type of character in ourselves in the hope that it will affect other people and do things that help others, like whether it's being a teacher, which is what I think we try to do with the podcast, or being a therapist, or doing something at that level. Now I'm glad that there are people out there who engage in the political fighting and for the right cause and the arguments and all that stuff. I just don't personally want to be part of that anymore because it's not consistent with my well being.

So I don't know when you're saying, Seth, you're just not active and you feel guilty about it. I'm not active and I don't feel guilty. I have the idea that I'm at least like, even the podcast, I think is a helpful thing to be putting into the ether. Right?

1:46:36 Seth: Yeah. I used to think that

1:46:41 Wes: realism, not pessimism, realism.

1:46:43 Seth: No, no, no. I bought the model of there's the movement and the intellectuals behind the movement and whatever. It's like, I think politics is about organization and that's just not who I am. This is what I do. This is who I am. This is what I do. And if it helps contribute, great. But I'm no longer deluding myself by saying that I fill this niche of the Trotsky to the whatever. But on the subject, the way the

1:47:09 Wes: podcast is organized, we have the delusion being balanced out by not being. Yeah, it's our checks and balances.

1:47:16 Seth: We do have checks and balances. We certainly have personal personalities. We're all factions.

1:47:19 Wes: That's true.

1:47:20 Seth: There's four factions on this stage. You know, I think to be optimistic or pessimistic about the future and the way you ask the question, Russell, you have to believe that there's such a thing as a trend and have a strong belief in that kind of causality that I don't so, like I said, I'm Hegelian, but without the end goal, it's just the constant shift and change. I mean, I'm old enough, you know, I saw the 200 when the country was 200 years old, and now I'm seeing it at 250. Pre Internet, post Internet, pre AI, pre phones, post, post, et cetera.

There's been a long burn, long, slow burn from my perspective, and I feel like we're at an inflection point. So I think there's going to be some pretty tumultuous change. You know, it's like waiting for the earthquake. Like, they're like, the pressure's building. We don't know. It could be this year. It could be 10 years from now. We don't know. But something's gonna happen. And what's the outcome gonna be? I think it could be tremendous. There could be a real awakening. Like, people could be like, man, we've just been doing this whole thing wrong, and we really need to, like, reset.

Or it could descend into tyranny and despotism and all that sort of thing. I just don't know what the answer to it is, but I think the opportunity is there. And that's why when I go back to talking about the United States, I used to buy into the story. I don't buy into the story anymore. But it doesn't mean that I think this is a terrible place or that the Constitution isn't a great function. Do you remember what we used to call it in school? The great experiment. This is an experiment in democracy. The. There's never been a country like the United States before.

We're going to try it out. Let's see what flies, right? But then you get a hold of a thing and you think that it's, you know, it's perfect and you can't let it go. It's like if this was a scientific experiment and we were still testing the hypothesis and we thought about it that way, we'd have a very different attitude about what's going on.

1:49:28 Wes: And it is true. It wasn't just propaganda at the time. There really wasn't a country like this. It's a worthy experiment, but, yeah, it's fragile.

1:49:37 Mark: Well, as Hegel said, history is the butcher's block of nations. That's the real Hegel quote. Here's the fake Hegel quote. As Hegel also said, when a certain podcast reaches episode 400, then the gospel will go out and permeate every part of society, and all the subtleties will be picked up on everyone because education will be so good at that point that that all political problems will be solved. You're welcome.

1:50:10 Seth: Thanks for coming.

1:50:11 Mark: Thank you.

1:50:12 Wes: Thank you.

1:50:12 Seth: Thanks a lot.

1:50:14 Mark: Thanks for Josh, thanks for Glenn L. Austin for doing video. I want to meet all of you individually.

1:50:26 Unknown speaker: It.