Noah Feldman: Cracks in the Constitution
January 6th, 2021 put our founding document to the test. And constitutional scholar Noah Feldman says, that although we survived our stress test, "our EKG went up and down a lot more than you would like it to do in what is supposed to be a 21st century democracy." What we've learned about the strength of our Constitution--and where its cracks show--ahead of our presidential election this fall.
- Plus: Axios' Alex Thompson on the piece of the Trump ballot story many of us may be missing.
Guests: Noah Feldman, Harvard Law professor and constitutional studies scholar, Bloomberg Opinion columnist, and author of the forthcoming book, "To Be a Jew: a New Guide to God, Israel and the Jewish People"; Alex Thompson, Axios national political correspondent.
Credits: 1 big thing is produced by Niala Boodhoo, Alexandra Botti, and Jay Cowit. Music is composed by Alex Sugiura. You can reach us at [email protected]. You can send questions, comments and story ideas as a text or voice memo to Niala at 202-918-4893.
NIALA BOODHOO: January 6th, 2021 put our founding document to the test.
NOAH FELDMAN: Although we survived our stress test, our EKG went up and down a lot more than you would like it to do in what is supposed to be a 21st century democracy.
NIALA: One leading scholar on the strength of our Constitution, and where its cracks show, ahead of our presidential election this fall.
Plus: the piece of the Trump-ballot story many of us may be missing.
I'm Niala Boodhoo. And from Axios, this is one big thing.
More than three years later, we're still untangling the aftermath of the Capitol insurrection…including what it revealed about the power and shortcomings of the U.S. Constitution. Harvard professor and constitutional studies scholar Noah Feldman says: that conflict is inherent in the document itself.
NOAH: Our constitution is kind of built on by experience and by practice, and that can be a virtue, but it can also really be a risk.
Of course January 6th is just one of the new challenges our founding document has faced in recent years, and with each we've learned more about how to protect it…and why it still matters. I asked Noah Feldman for his 1 big thing on the constitution today.
Noah Feldman is a professor of law at Harvard University, where he specializes in constitutional studies. He's also a columnist for Bloomberg Opinion. Hi, Noah. Welcome to One Big Thing.
NOAH: Hi, Niala. It's a pleasure to be here with you.
NIALA: Can we step back to the big picture for people who do not spend as much time as you do thinking about the Constitution, how would you describe how it holds American democracy together?
NOAH: Let me give you both the most positive version of the Constitution I can give you, and then let me give you a slightly more skeptical or cynical version of it. The positive version is: our constitution stands as the common ground that holds us together as a country.
And the constitutional principles are the ones that everybody in this very polarized country can nevertheless still get behind even if we might disagree about the details. We believe that we're living in a constitutional republic where elections are supposed to choose who comes next. We believe that we have basic rights: to get a trial if we're arrested, not to just be thrown in prison. We believe that we have free speech rights. Those are the kinds of core commitments that hold us together as a country.
And I would add to that, because this turned out to be relevant, we believe that the military is not an independent power. But is subordinate to the civilian power and is subject to the rule of law, which is, you know, it's kind of shocking that in the United States in 2024, we would have to even say that because we've always taken it for granted. We think of that as a problem that other countries deal with, but we almost had to deal with it around January 6th. So it turns out that's really important too.
So the best version of the Constitution is that we have an ongoing series of agreements over time, and we remain committed to those agreements, and they hold us together even in the moments when we deeply disagree. And even if you're one of those people who believes that we should be originalists and interpret the constitution based on what it meant in 1791, even those folks agree that the courts have to interpret that in an ongoing way, and so in that way we're all committed to the idea of an evolving Constitution.
That's the positive spin. The more skeptical spin says, imagine a bridge that was built in 1787 for a horse and buggy to go over. And then come trains, and we have to, you know, strengthen the bridge and enable it to carry this huge monster of a locomotive. And then come cars, and we improve it a little bit. And then planes, and maybe tanks. And we still have the same bridge. We're trying to add bits and pieces to it, we're trying to make it stronger. But almost uniquely in the world, we haven't gone back to square one and said maybe we should build something from scratch.
And so if you have someone who becomes president who openly flouts the Constitution and challenges constitutional norms, who says things that no president has ever said before, like, I didn't actually lose the election. And I'm supporting people who are going to try to go to Congress and block them from certifying the results, then that old bridge may look as though it's not really capable of doing the job that it always did before. And that's the scary aspect of our Constitution: that although we survived our stress test, our EKG went up and down a lot more than you would like it to do in what is supposed to be a 21st century democracy.
NIALA: So let me stay with your bridge analogy here, because how much of the bridge is actually things that are written in the Constitution versus norms and sort of like what we expect is going to be there to support us?
NOAH: I would say it's about 50 50, the reason I think it's 50 50 is that the bright line rules are fairly clear and are pretty well understood by the courts. Even where people on the courts come from different ideological perspectives. And one really good proof of that is that, you know, Trump appointed three justices to the current Supreme Court.
But then when he went to the courts and asked them to basically overturn the election, the Supreme Court, including all three of the justices that he appointed, flatly rejected those claims. Similarly, all over the country, really heroic, ordinary local people who were counting the votes, many of them Republicans, refused pressure to claim that Trump had won the election when he manifestly had not.
And we saw this in Georgia, most clearly, which was a Republican controlled state, with, at the time, a Republican governor, a Republican secretary of state, and we can hear the calls, the phone calls, where the president's basically telling them, find me some votes, and they basically tell him what you would hope they would say: No, sir.
So, that's the bright line rules working the way they're supposed to work. But the other half is the clever stuff that you can do if you're willing to break traditional practices. We saw that in the Department of Justice, which works for the president, and in which the president has the power to fire anyone he wants.
And if the president wants to initiate an investigation, a criminal investigation of somebody, he can. And even though there was a regulation in place appointing a special counsel, we had an attorney general in Bill Barr who felt no worries about going out publicly and defanging the special counsel's report before it came out.
Was that unlawful? No. It was within the rules breaking of our expectations. And so those expectations are kind of unwritten customs or practices or norms. That regulate a lot of what happens on a daily basis. And I would just add to that, there's no written rule that says the President can't claim to have won when he lost. There's no written rule saying that elected officials can't. We were supposed to be able to rely on common sense to avoid that.
And so, you may have criminal trials, like the one that the President is, you know, is under in the, in the D. C. District Court now, charging him with various crimes. Those are kind of an attempt to put rules on something that really isn't rule based. What's really rule based is, he lost the election, he can't continue to be president.
Pretending he didn't? No clear rule against it. And so those are the things that can really distort our politics.
NIALA: In a moment, we'll have more with Harvard's Noah Feldman on the U. S. Constitution, turning to the issue of free speech.
Welcome back to Axios' One Big Thing. I'm Niala Boodhoo, and I'm talking to constitutional law scholar and Harvard professor Noah Feldman.
Noah, you wrote last year that, quote, most people seem to think that free speech means saying whatever you want without consequences, but that's never been true. At least legally speaking, the First Amendment stops the government from punishing you for your opinions. Beyond that, you're on your own. Can you explain that and how you think we've come to misunderstand how the Constitution defines free speech in the U.S.?
NOAH: Thank you for that question, Niala. It's such a basic one and we tend to forget about it. The First Amendment says Congress shall make no law abridging your freedom of speech. And we've extended that to other government actors, too. But it doesn't say that if I say something outrageous on your podcast that people can't criticize me.
My students could say, we hate Feldman and we're not going to sign up for his class anymore. you know, people who, uh, otherwise might have hired me to give them advice about some business matter could say, no way, we don't want to touch Feldman with a ten foot pole. even my employer, which is a university which stands for principles of academic freedom, could decide that it doesn't care about academic freedom, and it wants me out the door.
I mean, I have a contract with them, they promised me that I have tenure, so we might have some legal dispute, but basically, they're a private actor, not the government, and they don't have to respect my free speech, unless they choose to. So that's the first most important point. There are consequences when you speak. The tricky part is that there are lots of areas of our lives where we think it's valuable for us to be able to speak our minds, but the courts won't protect that value. Um, universities are one good example of that. I believe you can't actually pursue truth, which is the goal of universities, if you're going to silence some points of view on the basis of their political content.
At the same time, we also belong to a university setting, that means we have to be civil to each other. Because screaming and yelling are not conducive to the pursuit of truth. And then there's some hard questions about where do you cross the line from screaming and yelling, and breaking of civility into free academic discourse.
And, look, that was one of the issues in the horrific hearing that took place in Congress with three university presidents, two of whom don't have their jobs today. so, you know, I think It's really important to be able to speak your mind in a lot of different contexts, but that's not the same thing as having a genuine constitutional free speech right in those contexts.
NIALA: I was reading an article last week about how free speech culture changes and goes through different phases in American history. And we spent a time not so long ago when flag burning was like the biggest test of free speech. How do you think we're interpreting free speech and the First Amendment to your point about college campuses, which we've been hearing so much about, in regards to the most recent Israel Hamas war?
NOAH: The biggest change that's happened, and it's really happened over the course of, say, the last roughly 20 years, is that people have come to realize, and it happened first on the left, and now it's happening on the right, that words aren't just words.
Words affect people. They do things. The old free speech theory was sort of sticks and stones can break my bones, but words can never hurt me, so go out and say whatever you want. And so if you want to burn the flag, sure, some people are offended by it, but who cares if they're offended by it?
But first in settings like workplaces, and now eventually in settings like universities, people began to notice that there's such a thing as harassment that could be achieved through words. You know, if someone comes into a workplace every day and says to the person who works next to them, You know, you're a woman and women aren't qualified for this job.
I mean, those are words, but if you say it to a specific person every day in the workplace, that rises to the level of hostile workplace environment sex harassment. So once we recognize that, we get a little more sophisticated about what words do to people, and we realize that words can undermine people's sense of equality and dignity.
That's a great and important recognition, but it raises a key question. Where do you draw the line? Where does speech cross over, which is protected speech, cross over into discriminatory conduct, which would not be protected?
I mean, in the case of the congressional hearing, it was a hypothetical statement that no one was actually saying on campus, to be clear.
But, you know, the thought that someone could stand on a campus and call for a genocide was shocking to a lot of people. And they thought, of course you can't do that. Even though everyone agrees, I think, that you could lawfully say that. And so there's genuine hard work to be done in figuring out where that line between speech and conduct comes in.
And now we all get that. And so the hard work that's gonna have to be done in the coming months and years by all of us is to figure out where we want that line to be and to notice that it's a little different, perhaps, in a workplace than it is on the street corner. And the university is in certain ways like a workplace.
People live there. You know, they're there for a purpose, and in other ways it's like the street corner because people come to university to learn and to express points of view and a certain amount of freedom of expression is really important there.
NIALA: Noah, as you're talking, I'm just thinking about the partisan lens of how people approach this. And circling back to where we started, I wonder if you think that's the biggest test on the horizon for the Constitution in this coming year? how seemingly drastically different our views are on the Constitution, depending on whether you're on the left or the right?
NOAH: Our polarization in our country is a test. It's a test for our democracy. But in principle, our constitution is set up to handle very, very polarized politics, provided nobody turns to violence and everybody follows the basic rules. They're not perfect. In the Civil War, our constitution broke. You know, I wrote a book called The Broken Constitution because the constitution really did break.
And that led to a war. We're not there right now. But on January 6th, the people who were at the Capitol and stormed the Capitol were not following the rules. Of, we have signs and we're speaking. They crossed over, very much crossed over, into violent conduct. I don't think we're going back to that place. I pray that we're not going back to that place.
But that's the first line that is crucial and important. The second line is, when we dispute what the Constitution means, do we trust that when the Supreme Court answers what the Constitution means, that its word is final? Right now, even the members of the Supreme Court are so mad at each other that they're using language that implies the illegitimacy of the decisions on the other side.
And very moderate, reasonable justices are even talking in that language because they're so mad about the things that the court has done in the last couple of years on guns and abortion rights and so forth. And that's really worrisome. Because if the Supreme Court decides something and the public says, who cares what the Supreme Court said?
We're going to the streets and we're going to use violence. That's how democracies start to really crumble. And I think we can see that the current Supreme Court justices are going to work very hard to issue decisions that will be as acceptable as they can be to the general public.
But that's the thing to watch. The thing to watch is when we disagree about the Constitution and the Supreme Court weighs in, does the public accept, not that the Supreme Court is correct, but that its word is final because there's no one else to do it.
NIALA: When you talk about the public, what do you think the average American's responsibility is in all of this?
NOAH: What the average American has to do is ask what outcome is best for the country that I want my grandchildren to inherit? Not, am I right or am I wrong now, but what will keep the system going? And it's my hope that people will look when they vote, for their local officials, and for their national officials, and when they go to protests, and when they speak at city council meetings and school board meetings, remember that you can't run a country if the people on the other side are bad people.
And so, and I think this is our responsibility. Morality is important. There's right and there's wrong. And you should stand for what's right and what's wrong. But if you think that everyone who disagrees with you is fundamentally a bad person, then why are you in a country with them?
It's not gonna work. We have to be able to say about the people we most disagree with, I disagree with you, you're wrong, your views might even be bad, but you're not a bad person, you're someone who I respect at the level of the fact that you in conscience care. And that I think is the responsibility that we genuinely can all exercise and we can exercise it at every level.
NIALA: Noah Feldman is a Harvard Law professor and constitutional Author of the forthcoming book, To Be a Jew, A New Guide to God, Israel and the Jewish People. Noah, thank you so much, and I want you to come back and talk about that book.
NOAH: Thank you, Niala. That's a yes, I'd love to.
And one final thing before we go: there's been a lot of talk about former president Trump and the 14th amendment, lately. That's because the Colorado Supreme Court kicked Trump off the GOP primary ballot, declaring that he had violated the 14th amendment. Now it's headed to the Supreme Court. Axios national political correspondent Alex Thompson explains what's to come…and what we may be missing in all the chaos.
ALEX THOMPSON: There are two specific things within the 14th Amendment One is whether or not Donald Trump committed an insurrection against the United States, which according to the amendment would bar him from office. The second part is whether or not the amendment was meant to apply to the president at all, because it does not specifically reference the oath of office the president takes or the president himself.
So, in this case, you have to think about the context in which the 14th Amendment was added to the Constitution, which is in the immediate aftermath of the Civil War. The point of the amendment was to bar former Confederates from future office.
And since then, it really hasn't been used, right? For this purpose. The 14th Amendment is used for a lot of other legal cases, but this part about an insurrection has not really been used since. It has then since been revived in the aftermath of January 6th, which itself was unprecedented as well. And given that a lot of the coverage of it used that word insurrection, eventually a lot of lawyers started mainly from the left, the process of to see is Donald Trump even eligible on the ballot.
The Supreme Court has indicated they're going to hear arguments on the case on February 8th. Colorado has said that they would like for the Supreme Court to rule before March 5th, which is when the GOP primary is. So it's going to be crunch time. And this is the thing that I think is underappreciated, about this current case, is that If the Supreme Court rules against Trump, or even if they don't rule against Trump, but offer sort of, maybe they try to take a middle ground and there's still some ambiguity, Republican led states have already indicated they're going to try to do the same thing with Joe Biden, and they're going to claim that because he has a condoned what they call an invasion on the southern border, that he is an insurrectionist. And You're gonna see some Republican led states try to take Joe Biden off the ballot. or at least make noise about it. We are at the beginning here, not the end, and this could get very messy.
NIALA: Alex Thompson is Axios' National Political Correspondent.
And that's all for this week's edition of 1 Big Thing. Our team includes Supervising Producer Alexandra Botti and Sound Engineer Jay Cowit. Alex Suigura composed our theme music. Aja Whitaker-Moore is Axios' Executive Editor, and Sara Keuhalani Goo is Axios' Editor in Chief.
Remember to text me feedback or ideas at 202 918 4893, or email [email protected].
I'm Niala Boodhoo. Thanks for listening, stay safe, and we'll see you back here next Thursday, where I'll be coming to you from the World Economic Forum in Davos, Switzerland.