Firing Line

- When was the last time you read the Constitution?

This week on "Firing Line".

(stirring music) The US Constitution wasn't written only for judges and lawyers.

The founders expected every citizen to read it, debate it, and work to amend it.

- They need a citizenry that knows this document inside and out, understands the limits that it puts on government as a hedge against tyranny, and that is prepared to defend those limits.

And right now, I'm not sure that's the citizenry that we have.

- [Margaret] New York University law professor Melissa Murray's new book is a guide to help every American read and understand our founding document.

As the Supreme Court tackles voting rights, presidential power, and birthright citizenship, how well do you understand the document that informs their decisions?

What does Melissa Murray say now?

- [Announcer] "Firing Line" with Margaret Hoover is made possible in part by Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, The Tepper Foundation, Peter and Mary Kalikow, The Beth and Ravenel Curry Foundation, Pritzker Military Foundation, Cliff and Laurel Asness, The Margaret and Daniel Loeb Foundation.

And by the following.

(stirring music) - Melissa Murray, welcome back to "Firing Line".

- Thanks so much for having me back.

- You have a new book, "The US Constitution: A Comprehensive and Annotated Guide for the Modern Reader".

It debuted at number three on the New York Times Bestseller List.

- Yes!

- As we sit here, 250 years after the signing of the Declaration of Independence, why should the modern reader pay attention to this document, the US Constitution?

- It's such a great question, and I think to understand why we need this book right now, you have to think about why we needed a Constitution in the first place.

So, in 1787, when the framers went down to Philadelphia in that sweltering summer, they were dealing with trauma.

So, they had the trauma of the colonial period where the British Parliament had taxed them relentlessly.

The British Crown sent a standing army of Redcoats into their midst, and they were just living with it.

And they saw firsthand what a tyrannical government could look like.

Then, they had the trauma of the period following the Declaration of Independence, where, for 10 years, they were basically trying to fight a war against the greatest global superpower the world had ever known.

And they were doing it with a government that was made out of gum and friendship bracelets.

So, they have these twin traumas, one where they recognize the danger of a government that is too strong, but then they also have this trauma of recognizing how to deal with a government that's too weak.

So, they are trying to strike this balance in Philadelphia.

How do we make a government that works, that is effective, but not so strong that it slips into tyranny and runs roughshod over the rights of the people?

So, they do this structurally.

They divide power between the federal government and the states, and then they divide the federal government's power between the three coordinate branches, and they realize that that's still not quite enough.

So, there are those among them who argue for explicit protections for the rights of the people.

So, we get the Bill of Rights.

Almost as soon as the Constitution is ratified, it is amended with these 10 amendments that secure individual liberties to the people.

But then that begs the question, what is the point of rights if the people behave more like subjects and less like citizens?

They realize in that moment that it's not enough to have a new model of government.

They need a new model for the governed.

They need a citizenry that is engaged, that is discerning, that understands this document, understands the limits that it puts on government as a hedge against tyranny, and that is prepared to defend those limits, defend their rights, so that the government doesn't become tyrannical.

They need a citizenry that knows this document inside and out.

And right now, I'm not sure that's the citizenry that we have at this moment, where so many people are wondering if democratic institutions are going to survive.

I can say unequivocally, they're not going to survive if the people aren't engaged with the limits that we place on government in order to have a democracy.

- You point out early in the book that the word slave and the word slavery originally appear exactly nowhere.

- Nowhere.

- In the Constitution- - It's everywhere.

It's true that the term slavery, the term slave, does not appear in the Constitution, the original Constitution- - Until the Reconstruction Amendments, where they explicitly call it unconstitutional.

Slavery appears in order to define it as unconstitutional.

- Right, but it's everywhere in the original 1787 document.

So, it's in the compromises over how the House of Representatives will be composed.

It is there in Article IV in the requirement that non-slaveholding states render property that has somehow found its way into the non-slaveholding states.

And so, there are all of these different compromises that are made in order to maintain the institution of slavery, but also, perhaps, to facilitate its demise.

So, in Article I, one of the compromises that is made is that they will maintain their participation in the transatlantic slave trade until 1808.

Congress is prohibited from outlawing the transatlantic slave trade until 1808, basically 20 years later.

And at that point, they imagine that that will give the South 20 years to get itself together, maybe to wean itself off of slavery.

And then, they can have a law that Congress passes that gets the United States out of the business of the transatlantic slave trade.

1808 comes along.

They do pass a law outlawing the transatlantic slave trade.

This is under the presidency of Thomas Jefferson himself- - A slaveholder.

- A slave owner.

But he signs that into law.

But the South has figured out a different way.

They're just going to have a self-reproducing slave population.

So, we're not doing the slave trade anymore, but we're still doing slavery.

- Wait, hold on, so I actually hadn't heard you describe that.

So, you acknowledge that in the original document, despite the fact that it's blended with compromises on inequality and on slavery, it still also sows the seeds for the demise of slavery.

- Yeah, I mean, that's part of the compromise.

Okay, this isn't a book that's hagiographic at all.

It's an imperfect document.

They recognize it, but they're also trying.

I mean, they're really struggling, and they're trying to get to these compromises in much the same way we, a nation of divided interests in 2026, are trying to understand each other and maybe get to compromise.

- The Reconstruction Amendments, the 13th, 14th, and 15th Amendments, abolish slavery, they guarantee citizenship, they guarantee equal protection, they guarantee voting rights.

I've heard you say that the entire purpose of the Roberts Court is to rewrite our understanding of the Reconstruction Amendments.

- I think that's right, yeah.

We have more than one Constitution.

So, there's the 1787 original Constitution.

There's the Reconstruction Amendments, which fundamentally alter the document in a number of ways, shifting power from the states to the federal government, recognizing that the states, as much as the federal government, could impose upon the rights of the people.

That's a really important shift that happens with the Reconstruction Amendments.

- So, recently, the Supreme Court has eliminated protections for majority-minority congressional districts under the Voting Rights Act.

There are estimates that up to 1/3 of the Congressional Black Caucus could lose their seats because of partisan gerrymandering.

You have described this as a, quote, "Break glass emergency moment."

- [Melissa] Yes.

- How so?

- So, this particular court has had voting rights in its sights for some time.

So, this has been a multi-stage, multi-case, multi-year project to hobble the Voting Rights Act.

And the argument is that we have come so far.

Do we need the kind of prophylactic measures that the Voting Rights Act puts in place?

I think they believe that the work of Reconstruction is complete, that we live in a post-racial society, that racism in its most invidious and obvious forms are gone.

And that may be true.

No one is screaming racial epithets at someone in the street.

States aren't explicitly- - Sometimes they do.

- Sometimes they do.

But the government isn't specifically engaging in Jim Crow.

And to the Roberts Court, that suggests progress and suggests that we don't need anything more.

We are post-racial.

I think what that view belies is that there are all sorts of sub rosa ways that you can discriminate.

For example, one of the things that is talked about in this recent case that you mentioned, Louisiana v. Callais, Justice Alito wrote the majority opinion for a 6-3 court.

One of the things he talks about is that many of these states can legitimately draw their districts in ways that consolidate partisan advantage, incumbency advantage.

This is basically partisan gerrymandering, which the court, in an earlier case- - Which they have said is okay.

- Right, 2019 Rucho v. Common Cause.

They basically say the federal courts have no role to play in policing and enforcing restraints on partisan gerrymandering.

So, states are free to partisan gerrymander.

The problem with that argument is that this Roberts court cannot distinguish between a partisan gerrymander and a racial gerrymander.

Racial gerrymanders are prohibited under Section 2 of the Voting Rights Act.

This court has now made it even harder to establish one.

And one of the reasons why it was already hard to establish the fact of a racial gerrymander is because in places like the South, race and partisanship run together.

Which is to say that in places like Alabama or Louisiana- - Black Alabamans and Black Mississippians are overwhelmingly Democrats.

- Yes, and there are a lot of white Republicans.

So, when you draw to consolidate Republican advantage in the South, you're necessarily doing it in a way that disadvantages Black voters.

- So, I wanna get to the consequences, but let me ask you another high-level question about that.

If Reconstruction remains an unfinished project 160 years later, is there a limiting principle?

In other words, is there a point at which the country will be able to say that the promises of the Reconstruction Amendments have been substantially fulfilled?

Or is that project necessarily ongoing?

- It's a terrific question.

When you say that this court has been focused on rolling back the Reconstruction Amendments, I don't know that they're rolling them back entirely, but I think they're rolling back the idea that the Reconstruction Amendments were about race and about ensuring some measure of racial equality.

They read the three Reconstruction Amendments as entirely race-neutral.

And I think that is an absolutely ahistorical account.

There are all of these ways in which the Reconstruction Amendments are consciously thinking about, what does it require to live in a society that is not a slavocracy, that is not about racial hierarchy?

And for this court to say it's entirely race-neutral, it is entirely ahistorical.

- Wouldn't one look, then, also, if they're an originalist, at those debates around and the circumstances around the creation of those three amendments to understand better how to apply them and apply more historical context?

- So, to be clear, there is a way, I think, to do originalism faithfully and to do it with an account and consideration of the relevant history.

I think the problem with originalism as it is practiced by its current adherents is that it can often be selective and itinerant in its view of history.

- It's cherry-picking of history.

- Yes, I think that's right.

- So, then, in terms of consequences of the recent court's rulings on the Voting Rights Act, what makes this a break glass moment for democracy?

- The Voting Rights Act, which was enacted in 1965, is the reason we have a multiracial democracy in any form.

Because we had the 15th Amendment in the 1870s, and some people voted, not everyone voted.

And then, there obviously was a huge backlash to people of color voting, certainly in the South.

If you look at the composition of Congress, there is a huge uptick right after Reconstruction, and then there's a massive downshift.

And we don't have real Black representation in massive numbers, in any kind of numbers, until after the Voting Rights Act.

So, this question of who is represented, whose voices are heard in a democracy, if this is truly government of, by, and for the people, then everyone has to have an opportunity to have their voice heard.

And the way that this court has hobbled and dismantled the Voting Rights Act is a true threat to the prospect of democracy where all votes and all voices count.

- You're persuaded that fewer Black Americans will vote.

- I don't, so, I think- - Or fewer Black Americans will be elected.

- I think maybe both.

On the basis of this case, Louisiana v. Callais, I think we're going to see real shifts in not only how these districts are drawn, but who they elect going forward.

And it's a real question.

We already had a distorted electoral landscape because of suppressive voter laws, because of partisan gerrymandering.

That's only going to accelerate.

- Jason Riley of "The Wall Street Journal" defended the Callais decision, arguing that, quote, "Racial gerrymandering probably has done more to throttle Black political ambitions and deepen our political divisions."

The argument is that race-based districts have essentially segregated and marginalized Black voters.

I suspect you disagree with that.

- Yes.

- But take the argument at face value.

- Sure.

So, it is true that the Voting Rights Act, which enabled the creation of majority-minority districts, opportunity districts where minority voters have the opportunity to elect a representative of their choice, that is about consolidating particular groups so that their preferences can be registered and acted upon.

Now, I think, what we will have is districts that are drawn for the purpose of dispersing minority voters throughout the population, so that they- - Diluting it.

- Diluting it, and it's a classic vote dilution argument where they're going to be overwhelmed by the majority, and the majority that will not look like them.

And I think we're going to see a change in the composition of Congress, and that seems to be by design.

But to my mind, that is as much a problem for democracy as the problem of, perhaps, consolidating Black voters in a single place and assuming that they all think the same thing.

Which is, I think the point of Mr.

Riley's op-ed.

- In 1974, William F. Buckley, Jr.

had a conversation with Black civil rights leaders Julian Bond and John Lewis about Black political engagement and the impact of the Voting Rights Act of 1965.

Take a look at this clip.

- This electorate here, the Black section of it, puts a kind of faith in the political process which is not at all naive or a pie-in-the-sky, but a real belief that if you put X candidate in office, that you will be better off in some way than you were before.

And it's actually worked out, and it hasn't meant gold in the streets or a free job for everyone.

But it has meant putting into office a group of people who, not just because they're Black, but because of the circumstances from which they come, are much more interested in people at the bottom than where their predecessors- - What is lost if Black voters, particularly in the South, lose representation on the scale that many expect and fear?

- So, I should say, it was great to see that clip of Julian Bond, who was a professor at the University of Virginia when I was a student.

He taught a very popular and highly oversubscribed course on the history of the Civil Rights movement.

And he's exactly right.

It is meaningful, it's important for people to have representation that truly reflects their experience.

Not everyone is coming from the same circumstances, and we need different voices in Congress.

We've seen this in the assault on incumbents over the last couple of years, like people who are speaking to the needs of younger voters, voters who are working class, Latino voters, immigrants, or newly naturalized voters.

If those voices are diffused and they're not surfaced in policy, those groups and those voices are going to be lost.

And it's not to say that a white representative couldn't reflect the needs of their constituencies, but in this world of partisan gerrymandering where, essentially, the districts are drawn so that representatives get to choose their voters, there's far less of an impetus for a representative to cater to or consider the needs of their constituency when they're basically assured that their seat is secure.

So, it is the double whammy of the gerrymandering, and then the fracturing of the political power of minority voters that is going to be our undoing.

- In your book, you describe the two quite onerous methods for the Constitution to be amended.

Only 27 amendments have been ratified in- - 10 in 1791, so really just 17.

- [Margaret] It's really 17, and only one in the last 55 years.

- Yeah.

- In a recent conversation here on this program, Jeffrey Rosen talked about a drafting project that he put together where he convened conservative scholars, liberal scholars for a virtual Constitutional convention.

- I was part of that.

- You were part of that!

- I was part of that!

- So, then, you know everybody agreed on some fixes to the system.

One, it should be easier to amend the Constitution.

Two, it should make impeachment a little bit harder in the House and a little bit easier in the Senate.

And that there should be a resurrection of the legislative veto, an elimination of the requirement for the President to be a natural-born citizen, and an 18-year term limit for Supreme Court justices.

- Yeah.

One thing that we noted amongst ourselves was that when the framers created these two relatively onerous means of changing the Constitution, that was by design.

I mean, if you think these principles are worthy of enshrining in your governing document, it must mean something.

And if you're going to change them, you've gotta be really certain.

It can't be that the Constitution and its principles gets changed on a whim or because of political expediency.

Can you imagine if, in the post 9/11 world, we decided, "You know what?

The First Amendment needs to mean something else."

Imagine what we would have done.

In that moment of just incredible fear and the need for public safety, we would've done all kinds of things to the First Amendment.

So, some of these principles, you have to be steadfast about.

You cannot be selective or itinerant about them.

And I think that's part of what Article V does.

It makes it hard because you've gotta really think about it.

If you're gonna change this, you've got to really mean it.

You want something different.

We were very steadfast on changing the electoral college to make the presidency subject to a popular vote.

- Was that unanimous?

Did the conservative scholars and liberal scholars- - I don't recall.

I don't recall.

But I know that we, amongst ourselves, had a really long discussion about this, and the idea that the electoral college, like the state legislatures selecting senators, those were sort of residue of the elitism of the framers, who were deeply, deeply worried that maybe the people themselves couldn't be entrusted to really do democracy.

And I think we're past that.

I will say, everyone agreed on term limits for the Supreme Court.

- Oh, wow, interesting.

- Yeah.

- What is the role, here, of Congress, then?

- Congress, there's a lot to play.

I mean, I often ask on our podcast, "Strict Scrutiny", "What is a Congress, how can I get one?

Can we get one at Target?"

Because right now, I think we are in this world where Congress is relatively supine.

We've had moments where we've had a very muscular executive with massive assertions of executive power, some of it grounded in the Constitution, some of it not.

But what we have also had is a Congress that has been willing to jealously guard its prerogatives from executive encroachment and a court that has been insistent on maintaining the boundaries on executive power.

Right now, we're in a moment where we have a very assertive and energetic executive, maybe a too-muscular executive, a Congress that seems to be rolling over as the executive intrudes on its prerogatives.

- Well, it's really a rubber stamp for the executive.

- And a court that's midwifing these excesses, too.

- Since you were last on this program to talk about the first criminal trial of the US president, that president has been reelected, and three of the four criminal trials that he was facing have been dropped.

What does that say about the limits of presidential power as envisioned by the founders?

- So, the founders, when they were thinking about the executive, they were much more specific in their limitations on Congress.

And that's understandable, given their concerns and distrust of the British Parliament.

They were also worried about the king, the possibility of an executive becoming too monarchial.

So, they were definitely focused on the president, but some of their pronouncements on executive power are much more loosey-goosey and vague.

And that has obviously led to lots of questions about what the limits on the executive are.

But I think they were less worried about strictly defining those limits, in part because, one, they knew that you might need an energetic executive in certain circumstances, and that it would be checked by Congress or the court.

So, there are always those structural guardrails.

But they also thought the president would be a person of character and integrity.

And that maybe that in and of itself would be a guardrail, that this would be someone with better angels.

- But weren't they trying to guard against the fact that somebody who was not of better angels could- - [Melissa] But those are the structural- - Could assume the executive position?

- So, the structural limits on the executive that the other branches could impose, the fact that impeachment was a real thing and not a paper tiger, as it is now.

I don't think they would have imagined that the Supreme Court would write a decision like Trump v. United States, blowing open the whole idea of presidential immunity from criminal liability, or at least making it a much more complicated prospect.

I mean, they didn't believe the President would be above the law.

They did not believe that any man would be above the law, and certainly not a president whom they did not imagine to be a king.

I don't think they imagined that the Supreme Court would interpret Article II in a way that effectively can be a license for presidential misconduct in whatever form.

- At the anniversary of the signing of the Declaration of Independence 250 years later, which has proven to be more durable in American life?

Is it the legacy of the Reconstruction Amendments' promise of equal citizenship?

Or the compromises over slavery that were built into the original Constitution?

- This seems entirely fitting to say this on the occasion of the 250th anniversary of the Declaration of Independence.

The Reconstruction Amendments, perhaps more than any other part of the Constitution, reflect the principles of the Declaration of Independence.

They recognize that the original Constitution, despite coming just 10 years, 11 years after the Declaration of Independence, don't live up to those principles in lots of ways.

And so, they are consciously trying to infuse the Constitution with the reality of those principles that Thomas Jefferson, a slave owner, but also a visionary in lots of ways, were trying to create for this government.

I like to be a bit of an optimist, certainly on the occasions of birthdays and anniversaries.

I think that the residue of enslavement is certainly there, but it's no match for what the Reconstruction Amendments were trying to do.

The real question is, are we going to let the Reconstruction Amendments live out the promise that they were structured to engender, or are we going to snuff them out?

And big parts of this have been snuffed out, and this Supreme Court is doing real work to limit the reach of the Reconstruction Amendments, but that's not what the framers of the Reconstruction Amendments intended.

- Melissa Murray, thank you for returning to "Firing Line".

- Thanks so much for having me, Margaret.

(stirring music) - [Announcer] "Firing Line" with Margaret Hoover is made possible in part by Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, The Tepper Foundation, Peter and Mary Kalikow, The Beth and Ravenel Curry Foundation, Pritzker Military Foundation, Cliff and Laurel Asness, the Margaret and Daniel Loeb Foundation.

And by the following.

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