Bob Crawford (3:37)

All right, so let's talk about those separations of powers. There's horizontal separation and vertical separation. Right. Horizontal checks and balances, vertical federal, state. Can you describe those for us?

Jeffrey Rosen (3:51)

Absolutely. The big idea is that the power belongs to the people. We, the people of the United States, create the Constitution. We have the sovereign power. We parcel out bits of that power to the three branches of the federal government, the executive, the legislative, and the judiciary. And we also divide it between the federal government and the states to ensure that none of our representatives can speak in our name. And our ultimate power is embodied in the Constitution itself. So the very first draft of the Constitution, drafted by the Committee of Detail, and it's in the handwriting of James Wilson of Pennsylvania, says, resolve that the government of the United States shall consist of a legislative, executive and judicial branch. That's it. It's not we the people. It's not why. It's just separation of powers. And this is coming from Montesquieu, who's the French political philosopher who's quoted more than anyone else at the Constitutional Convention. And Montesquieu says all pure republics always degenerate into their bad forms. So a pure monarchy will degenerate into tyranny, aristocracy into oligarchy, democracy into the mob. You have to have mixed governments where you separate powers and blend and balance them against each other to prevent any one group from getting all the power and consolidating power so that the president isn't a king, so that he can't order people in jail on his own, say so. So he can't make the country go to war, so he can't have taxation without representation. This is the whole point of the revolution, is to prevent a president from becoming like King George and becoming a dictator. So that's the big idea. Separate the legislative, executive and judicial power. Make them independent of each other so that ambition can be made to counteract ambition, as James Madison so famously put it in the Federalist Papers, and will ensure that ultimate power remains in the people.

Bob Crawford (5:51)

Did the Founders see these separated powers, legislative, executive, judicial, as being equal?

Jeffrey Rosen (6:00)

They were all independent. But in practice, the Founders feared and believed that the most dangerous of the three branches would be Congress. James Madison said that Congress would suck all power into its impetuous vortex. As he memorably put it. He thought that the executive would have the power to execute Congress's laws, but would be a chief magistrate, vigorous but constrained. And the judiciary was going to be the least dangerous branch, as Alexander Hamilton put it in Federalist 78, because it had neither purse nor sword. It couldn't force its judgments to be enforced. It couldn't make the president listen to it. It relied on legitimacy and on the willful acquiescence of the other two branches.

Bob Crawford (6:46)

So let's play this scenario out. According to the Founders, what would happen if an executive defied a judicial decision, if the president defied the Supreme Court decision? You just said the Supreme Court does not have a sword. They have no way to really enforce.

Jeffrey Rosen (7:07)

This is the great dilemma and the great concern of the Supreme Court. Ever since the beginning John Marshall becomes chief justice, he has a rivalry with his distant relative Thomas Jefferson, who he cordially despises. And he's really afraid if he orders Jefferson to do something Jefferson doesn't want him to do, Jefferson's gonna ignore him and it'll reveal the judiciary to be weak. On the other hand, Marshall can't refuse to confront Jefferson at all because that'll show that the judiciary has no power. Marshall comes up with a brilliant solution. He asserts the Court's power to strike down on constitutional laws. But he refuses to order Jefferson to do something he knows Jefferson will ignore because, as Marshall says, I'm not fond of butting my head against a wall in sport. He doesn't want to fight battles he can lose. And it's this delicate combination of diplomacy and assertiveness that makes Marshall the greatest Chief Justice. He establishes the Court as a strong and equal branch of government. But this tension has remained throughout American history. And there's always the danger, the risk that presidents won't listen to the Court. Thankfully, we have never in all of American history had a president who's ignored an unambiguous order of the Supreme Court. That would be a constitutional crisis. And thankfully, it hasn't happened yet.

Bob Crawford (8:27)

10:19am, this is American History Hotline. I'm your host, Bob Crawford. Today my guest is Jeffrey Rosen, president and CEO of the National Constitution Center. We're talking about the guardrails of the US Constitution. Let's talk about precedents and norms, things not written in the Constitution, but practices that honor and spirit. What was the power of George Washington's voluntary stepping down from office?

Jeffrey Rosen (8:57)

The power was invaluable. It was the most important precedent in the entire early republic. When King George contemplated the fact that Washington might voluntarily step down, he said, if he does that, he'll be the greatest man in the world. And Washington did it. His model is the great Roman general Cincinnatus, who reluctantly serves the state and at the earliest opportunity voluntarily relinquishes power so he can go back to to his farm. And Washington could at any point have established himself as a dictator at newburgh. And in 1783, there's calls on him to lead a military coup and to make himself general for life. He declines to do that. On the contrary, he mounts a wooden platform called the Temple of Virtue. He has Addison's Cato, a play performed for the troops, praising the mild virtues of calm philosophy. Can you imagine? And then he appeals to the troop for patience and temperance, and so they can just hold on a little bit, he'll ensure that they're paid. And he takes out. He can't read the letter he's trying to read to the troops. He takes out his reading glasses and says, forgive me, gentlemen. I've grown old in your service. Now I've grown almost blind. The soldiers weep because they've never seen him confess weakness before. And it's that combination of remarkable self mastery, self restraint and authority that makes Washington the greatest man of his age.

Bob Crawford (10:21)

How much of our federal government is norms versus constitutional law?

Jeffrey Rosen (10:27)

Well, it's a complicated blend of both. It's hard to parcel out the exact proportion. But there's no doubt that the law rests on norms. And the most important norms are not written in law. We just identified the norm that presidents voluntarily step down at the end of their term. It's not written in the Constitution that they have to, but presidents have, more or less since Washington voluntarily relinquished power. And there are so many. And the norm that judicial decisions are obeyed. President Eisenhower's decision to send the airborne troops to back up the court's order that you had to integrate the school of Little Rock. He didn't have to do that. The Constitution didn't make him. But he thought that his job to execute the law included the job of sending troops to enforce the unambiguous orders of the US Supreme Court. It really shows how incredibly resilient our system is, but also how delicate, how fragile it is, how it really does depend on the virtue of our public officials. Virtue means self restraint, moderation, compromise, tranquility, balance. Recognizing that it's the willingness to disagree without being disagreeable, to listen to differing points of view. Anytime one branch pushes its power too far, the whole system risks collapsing.

Bob Crawford (11:53)

What are some of your favorite examples of when the Constitution was put to the test and worked?

Jeffrey Rosen (12:02)

The first great example is the election of 1800. The political parties are up and running. Jefferson has created the Democratic Republicans, Adams for the Federalists. It's a contested election decided by Hamilton's last minute decision to side with Jefferson rather than Burr. You know, it almost brings the country to its knees. But what happens? Adams voluntarily surrenders power, although he does leave early in the morning before the inauguration. The system works. And then the most moving ending. A few years later, Adams and Jefferson reconcile. They have one of the most beautiful correspondences in American history where they talk about their shared love for philosophy, for the Bible and for the wisdom of the ages. And then they both die on the same day, July 4, 1826, with Adams whispering, Jefferson still lives, not realizing Jefferson had died a few hours earlier. That shows the willingness of Americans to engage with even their greatest political opponents. I end the book on Hamilton and Jefferson with the remarkable fact that after Hamilton died in the duel, Jefferson put his bust next to Jefferson's own bust in the entrance hall of Monticello. You can see it today if you go there. And whenever he would pass it, Jefferson would smile and say, opposed in life as in death. For him, Hamilton was not a hated enemy to be destroyed, but a respected opponent to be engaged. And he signaled that respect by putting Hamilton's bust in the entrance hall. And then there are so many other inspiring examples of the system holding and the center holding because the norms hold. Think of Andrew Jackson, elected as the great populist. He's an opponent of the bank of the United States. He says, the bank is trying to kill me, but I will kill it. You might have thought he'd be an opponent, a friend of secession because of his devotion to Jefferson and states rights. But when South Carolina issued its nullification proclamation and asserted its right to refuse to obey federal laws, it disagreed with, like the hated Tariff of abominations of 1829. Jackson, in this dramatic toast, nobly says, liberty and Union, they must be preserved. And by signaling his devotion to Union rather than secession, he preserves the Union. And then think of the greatest testing in American History the great secession crisis. Abraham Lincoln and Stephen Douglas have debated. Lincoln wins the contested election of 1860. It's been a fight unlike any other. But what does Douglas do after he loses the election? He pledges his allegiance to Lincoln and to Union. And he holds Lincoln's hat during the inaugural speech. It's just so moving. That's how much of a patriot he is. And Douglass dies soon after, and his last whispered words are that his own sons will defend the Union in the face of secession. We could keep going, but it really is inspiring that at our moments of greatest testing, patriotic presidents have signaled their devotion to Union and to the Constitution of the United States.

Carrie Champion (15:24)

This is an iHeart podcast. Guaranteed human.

Stephanie Young (15:29)

In 2023, Bachelor star Clayton Eckerd was accused of fathering twins, but the pregnancy appeared to be a hoax.

Carrie Champion (15:36)

You doctored this particular test twice, Ms. Owens? Correct. I doctored the test once.

Stephanie Young (15:41)

It took an army of Internet detectives to uncover a disturbing pattern. Two more men who'd been through the same thing.

Bob Crawford (15:48)

Greg Gillespie and Michael Mancini.

Stephanie Young (15:51)

My mind was blown. I'm Stephanie Young. This is Love Trapped.

Jeffrey Rosen (15:55)

Laura Scottsdale Police.

Stephanie Young (15:57)

As the season continues, Laura Owens finally faces consequences. Listen to Love Trapped podcast on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

Roald Dahl Podcast Host (16:08)

You know Roald Dahl. He thought up Willy Wonka in the bfg. But did you know he was a spy? In the new podcast the Secret World of Roald Dahl, I'll tell you that story and much, much more.

Bob Crawford (16:20)

What?

Roald Dahl Podcast Host (16:21)

You probably won't believe it either.

Jeffrey Rosen (16:23)

Was this before you wrote his stories. It must have been okay. I don't think that's true.

Roald Dahl Podcast Host (16:28)

I'm telling you, I was a spy. Listen to the Secret World of Roald Dahl on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

Lori Siegel (16:38)

I'm Lori Siegel, and on my new podcast, Mostly Human, I'll take you to some wild corners of the tec. About to go on a date with an AI companion at a real world cafe right here in New York City.

Jeffrey Rosen (16:52)

There's no playbook for what to do when an AI model hallucinates a story about you.

Lori Siegel (16:58)

Mostly Human is your playbook for how tech can work for you.

Bob Crawford (17:02)

Anyone can now be an entrepreneur. Anyone can build an app, and it's very empowering.

Lori Siegel (17:05)

Listen to Mostly human on the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.

Jeffrey Rosen (17:15)

1010 shots fired. City hall building. How could this have happened in City Hall? Somebody tell me that A shocking public murder this is one of the most dramatic events that really ever happened in New York City politics.

Bob Crawford (17:29)

I screamed, get down. Get down. Those are shots.

Jeffrey Rosen (17:33)

A tragedy that's now forgotten and a

Bob Crawford (17:36)

mystery that may or may not have been political.

Jeffrey Rosen (17:38)

It may have been about sex.

Bob Crawford (17:40)

Listen to Rorschach, Murder at City hall on the iHeartRadio app, Apple Podcasts, or

Jeffrey Rosen (17:45)

wherever you get your podcasts.

Carrie Champion (17:50)

If you're trying to keep up with everything happening on and off the court, we've got you covered on the podcast. Flagrant and Funny. You want to start with the first question for the Big Ten coach of the Year? Oh, whatever. Would you like to.

Jeffrey Rosen (17:59)

Yeah, you're a Spartan.

Carrie Champion (18:01)

Is that what I'm getting? Exactly. So whether your bracket is busted or you just want the real talk on what's happening during the tournament, open your free iHeartRadio app. Search Flagrant and Funny with Carrie Champion and Jemele Hill. And listen. Now presented by Capital One, founding partner of iHeart Women's Sports,

Bob Crawford (18:22)

This is American History Hotline. I'm your host, Bob Crawford. Today my guest is Jeffrey Rosen. His forthcoming book is the Pursuit of Liberty. How Hamilton vs. Jefferson ignited the Lasting Battle Over Power in America. We're talking about the United States Constitution and how much of a beating it can withstand. We've talked about how examples of where the Constitution held right, where the checks and balances did their job. What are some examples that you can think of where they did not?

Jeffrey Rosen (18:56)

Well, the biggest, of course, is the Civil War, and the Southern states seceded. Lincoln denied their constitutional right to secede and said he had not only the right, but the duty to preserve the Union. Lincoln's position was based on his view that we, the people of the entire United States, had made the Constitution, in fact, that the original Union arose from the Declaration of Independence and its assertion that all men are created equal, which created an American nation. The Southern states insisted that as sovereign states, they could withdraw from the Union. And the war came, as Lincoln said, establishing the proposition that the Union was indissoluble. Since then, we've had great testing moments, mostly involving political violence and insurrection. With when you think about insurrection in the U.S. it's remarkable how relatively rare political violence has been. As the great historian Richard Hofstadter said in his definitive history of political violence. Political violence in the US after the Revolution started with Shays Rebellion, those farmers in western Massachusetts mobbing the federal courthouses. It continued with the Whiskey Rebellion. Once again, dissatisfied farmers in the backcountry of Pennsylvania rebelling against Hamilton's Hated whiskey tax. And they attack the federal tax collector and tar and feather him. And eventually Washington has to go on horseback with Hamilton at its at his side. The only time a US President has led a military charge goes to Carlisle, Pennsylvania. The opposition melts away and Washington in the end, pardons most of the rebels. Jefferson wants to pardon and forgive insurrectionists at every stage. He says that the blood of liberty has to be moistened with revolution. He kind of endorses the French Revolution in a rather chilling endorsement of violence, showing the difference between Hamilton and Jefferson on that question. And then when you think about political violence, of course, erupted brutally during the Civil War. But then after the Civil War, we saw more violence in opposition to Reconstruction and in the bloody Battle of New Orleans of 1874, where there's armed conflict in the streets over who's been elected governor. And then in the racist reaction to Reconstruction legislation like the Colfax massacre, where African Americans are brutally murdered trying to defend state buildings after a legitimate election, we see what the historian Jefferson Cowie calls white resistance to federal power, basically, which can take the form of violence at times. That continued in the 1920s with anti immigrant violence. And then during the civil rights era after Brown v. Board of Education, when Southern separatists didn't want to obey the Supreme Court, they tried to block the integration of the schools as well as violently resisting voting rights. And we had dramas ranging from Little Rock to Pettus Bridge. In all of these cases of violence, it was crucial that the federal government come down on the side of Union. And it was only Lincoln's decision to enforce Union and Grant's decision initially to enforce Reconstruction and Lyndon Johnson's decision to enforce civil rights. Eisenhower's decision to send the troops that ultimately led to the triumph of Union. But it reminds us that the point of the Constitution is to constrain politics with principle in order to avoid violence. And when we abandon our devotion to the Constitution and the rule of law, then violence can result.

Bob Crawford (22:59)

We talked about the weakness of the judicial branch to enforce its decisions. Let's talk about the political retaliation. Does the Constitution stop a president from using his power against his political rivals?

Jeffrey Rosen (23:15)

That's a good question. And the answer is not explicitly. Those are norms. There's a norm in the Justice Department of apolitical prosecutions. But ultimately the president has the executive power. He controls prosecutions if he uses them in a treasonous or corrupt way. The founders anticipated that the remedy would be impeachment. They were very afraid of foreign corruption in particular. That might enlist a corrupt President to take bribes and perhaps to wield power on his own behalf for self interest reasons. But they believe that impeachment for treason, bribery or other high crimes or misdemeanors, as the language of the impeachment clause originally put it, would ensure that patriotic congresspeople would remove from office any corrupt or treasonous president.

Bob Crawford (24:13)

What about a situation, a scenario, where one political party orchestrates a prolonged attempt to take over the government at every level and in every branch. It installs loyalists in every top position. The government becomes a shadow democracy. Did the Framers anticipate a scenario like that?

Jeffrey Rosen (24:35)

They did not. Because they did not anticipate political parties. They imagined that the real threat was what they called faction. And James Madison defines a faction as any group, a majority or a minority, animated by passion rather than reason, devoted to self interest rather than the public good. Now, pretty soon, Madison and Jefferson presided over the creation of the first political party, the Democratic Republican Party, in opposition to the Federalists. Madison came to see parties as useful ways of aggregating different political interests and integrated them into the system, thought that in productive ways they could ensure a clash of principle rather than pure politics. However, the whole system depends on the separation of powers, which we started talking about. And the Founders did not anticipate that Congress, for example, would stop checking the President because of partisan loyalty. They thought Congress will assert its constitutional prerogatives and the judiciary also will independently enforce the Constitution and not be taken over by any particular faction. So the whole system depends on the separation of powers.

Bob Crawford (25:49)

Next year, we're going to celebrate our nation's 250th anniversary. The Constitution's about 240 years old, roughly. I remember Harriet Martineau, who was a British journalist who visited the United states in the mid-1830s. She visited with the elderly president, former President Madison, and she wrote something to the extent of even if the United States only lasts this 50 years, the Constitution's been in place at that point. Even if it only lasts 50 years, it is the greatest achievement of humankind. Here we are trying to get to 240 for the Constitution, trying to get to 250 for the United States. Were the Founders optimistic about the longevity of the nation?

Jeffrey Rosen (26:41)

Great question and great quotation from Harriet Martineau, and she's absolutely right. The founding of America on the principles of liberty, equality and government by consent is the most inspiring achievement for liberty in human history. Were the Founders optimistic that it would succeed? No, they were not optimistic. All of them, for various reasons, feared the fragility of the Republicans. Washington fears faction and the rise of the new political parties. Jefferson rightly fears civil war over slavery, which he sees like a tolling bell in the night. Hamilton thinks the executive isn't strong enough to defend America. Adams has a very dark view of human nature and presciently predicts the dangers of financial oligarchy and thinks that ruled by elites may degenerate to threaten liberty. Only Madison's a little more optimistic because he both expects less of the system, which he thinks will check and balance passion. But Madison does put a lot of faith in a new media technology, the broadside press, which allows citizens to read complicated arguments like the Federalist Papers in the newspapers, to discuss them with their representatives, never to talk directly to the President. The idea of a tweeting president is a Madisonian nightmare. But through deep reading and deliberation, he hopes that reason will slowly spread across the land, and a new class of enlightened statesmen he calls the literati will ensure the triumph of reason over passion. Now, even as I describe that Madisonian hope, it seems like we're kind of far from that vision, which really reminds us of the urgent importance of civic education for all the Founders. Everything turns on the citizens and on your willingness to educate yourselves, to learn about American history, the principles of the Constitution, how to deliberate without descending into violence, how to disagree without being disagreeable, and most importantly, to keep the principles of the Declaration and the Constitution before our eyes and in our minds and hearts at every moment. You mentioned Harriet Martineau and Madison in the 1830s. There's another moment just a few years later in 1839, where John Quincy Adams, who's another hero of both of ours I know, gives a speech on the jubilee of the Constitution. And it's Washington's 50th anniversary of his inauguration. And Adams fears civil war, which is brimming on the horizon. And he says we are going to degenerate into violence unless we study and keep the principles of the Declaration and the Constitution. And then, in this amazing moment, he quotes the book of Deuteronomy from the Hebrew Bible and says of the principles of the Declaration and the Constitution. Take these principles as frontlets between your eyes. Place them upon your hands and your arms, whisper them to your children before you speak. Make them the principles of your political salvation. So that's how important it is for John Quincy Adams that we learn about and study the principles of the Declaration and the Constitution. If we do that, he believes that the Union will prevail. And if we don't, we will degenerate into civil war.

Bob Crawford (29:53)

I always want John Quincy Adams and Jeffrey Rosen to have the last word. I've been talking with Jeffrey Rosen. He's the president and CEO of the National Constitution Center. His forthcoming book, the Pursuit of how Hamilton vs. Jefferson, ignited the Lasting Battle Over Power in America. Check it out. Jeffrey, thanks for joining us today on American History Hotlines.

Jeffrey Rosen (30:19)

Thank you so much.

Bob Crawford (30:23)

You've been listening to American History Hotline, a production of iHeart podcasts and Scratch Track Productions. The show's executive producer is James Morrison. Our executive producers from Iheart are Jordan Runtal and Jason English. Original music composed by me, Bob Crawford. Please keep in touch. Our email is americanhistoryhotlinemail.com if you like the show, please tell your friends and leave us a review in Apple Podcasts. I'm your host, Bob Crawford. Feel free to hit me up on social media to ask a history question or to let me know what you think of the show. You can find me Obcraword Bass. Thanks so much for listening. See you next week.

Stephanie Young (31:20)

In 2023, Bachelor star Clayton Eckerd was accused of fathering twins, but the pregnancy appeared to be a hoax.

Carrie Champion (31:27)

You doctored this particular test twice, Ms. Owens. Correct. I doctored the test once.

Stephanie Young (31:32)

It took an army of Internet detectives to uncover a disturbing pattern. Two more men who'd been through the

Bob Crawford (31:39)

same thing, Greg Gillespie and Michael Mancini.

Stephanie Young (31:41)

My mind was blown. I'm Stephanie Young. This is Love Trapped.

Jeffrey Rosen (31:46)

Laura Scottsdale, Police.

Stephanie Young (31:48)

As the season continues, Laura Owens finally faces consequences. Listen to Love Trapped podcast on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

Roald Dahl Podcast Host (31:59)

You know Roald Dahl, he thought of Willy Wonka in the bfg. But did you know he was a spy? In the new podcast, the Secret World of Roald Dahl, I'll tell you that story and much, much more.

Bob Crawford (32:11)

What?

Roald Dahl Podcast Host (32:12)

You probably won't believe it either.

Jeffrey Rosen (32:13)

Was this before he wrote his stories? It must have been okay. I don't think that's true.

Roald Dahl Podcast Host (32:19)

I'm telling you, the guy was a spy. Listen to the Secret World of Roald Dahl on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

Lori Siegel (32:29)

I'm Lori Siegel, and on my new podcast, Mostly Human, I'll take you to some wild corners of the tech world. I'm about to go a date with an AI companion at a real world cafe right here in New York City.

Jeffrey Rosen (32:43)

There's no playbook for what to do when an AI model hallucinates a story about you.

Lori Siegel (32:49)

Mostly Human is your playbook for how tech can work for you.

Bob Crawford (32:52)

Anyone can now be an entrepreneur. Anyone can build an app, and it's very empowering.

Lori Siegel (32:56)

Listen to Mostly human on the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.

Jeffrey Rosen (33:06)

1010 shots fired. City hall building. How could this have happened in City Hall? Somebody tell me that.

Bob Crawford (33:12)

A shocking public murder.

Jeffrey Rosen (33:13)

This is one of the most dramatic events that really ever happened in New York City politics.

Bob Crawford (33:20)

I screamed, get down. Get down. Those are shots.

Jeffrey Rosen (33:24)

A tragedy that's now forgotten and a

Bob Crawford (33:27)

mystery that may or may not have been political political.

Jeffrey Rosen (33:29)

It may have been about sex.

Bob Crawford (33:30)

Listen to Rorschach Murder at City hall on the iHeartRadio app, Apple Podcasts, or

Jeffrey Rosen (33:35)

wherever you get your podcasts.

Carrie Champion (33:40)

If you're trying to keep up with everything happening on and off the court, we've got you covered on the podcast. Flagrant and funny. You want to start with the first question for the Big Ten coach of the year? Oh, would you like to?

Jeffrey Rosen (33:50)

Yeah. So you.

Bob Crawford (33:51)

You're a Spartan.

Carrie Champion (33:52)

Is that what I'm getting? Exactly. So whether you're bracketed busted, or you just want the real talk on what's happening during the tournament, open your free iHeartRadio app, search flagrant and Funny with Carrie Champion and Jamel Hill, and listen. Now presented by Capital One, founding partner of iHeart Women's Sports, this is an iHeart podcast. Guaranteed human.