Ep. 397: Federalist Papers LIVE (Part One)

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 Linsenmayer, 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 Alwan, 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.

2:17 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

2:41 Dylan: back here for episode 100. Was here.

2:44 Wes: Yep.

2:46 Mark: Crazy.

2:47 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.

2:56 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.

4:08 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.

4:42 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.

4:54 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.

6:33 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?

6:41 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.

12:01 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.

15:44 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 Tocqueville. 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.

17:05 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

22:07 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.

25:09 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 Federalist 51 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.

27:56 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.

28:15 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.

29:20 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 Publius, 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 Brutus? 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.

33:32 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.

34:08 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?

34:27 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.

35:34 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.

40:33 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 means 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.

43:22 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.

45:52 Seth: I'm saying I can't help. I can't help but read it that way.

45:56 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.

46:15 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 Federalist 54?

46:24 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 Federalist 54. 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.

47:58 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.

49:04 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 Fugitive Slave 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: Seth

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 bribe 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.