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If we were to have a new Constitutional convention, which is allowed under Article 5 of the Constitution, we could have a new convention. Imagine what we'd spend our time talking about. It would be about abortion and bathrooms and things like this. We wouldn't be fixing the fundamental problems of American governance. And so I do think it would be a bad idea for us to launch another effort and now the Good
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Fight with Jasia Monk. Democratic institutions are under attack in many countries and one of the big questions is to what extent the right kind of constitution can help to provide a bulwark against the attacks of demagogues and other authoritarian aspirants. Immanuel Kant had the ambition of designing constitution that would allow even a race of devils to self govern. Well, what elements of a constitution really do actually help to shore up institutions? What elements of constitutions around the world might have helped to explain why those countries democratic systems collapsed? What changes should we make in the United States? And would it be a good idea to scrap the U.S. constitution and try to write it from scratch? Well, there's nobody better to ask about these questions than Tom Ginsberg. Tom is a law professor at the University of Chicago who is one of the world's foremost experts in comparative study of constitutions. He is also the head of A Chicago Forum for Free Inquiry and Expression, a new center at the University of Chicago generously endowed by with a $100 million gift that is trying to make sure that free speech and academic inquiry remains at the heart of that institution. We debate how much centers like that can really do for facilitating a genuine culture of free speech on campus, and whether those of us who care about free speech in the academic context should fight for the value of free speech or the value of academic freedom, which in some ways goes further but in other ways might be more restricted, might place limits on the extent to which faculty members can speak about politics if somebody tries to argue that that somehow lies outside of their core area of academic competence. One of the reasons why all of this episode is available to all listeners to this podcast is that it is part of a serious generously supported by AVDF about polarization in our society and how we can try to fight for values like free speech under those circumstances. If you want to support the work we do, please nonetheless take this opportunity to go to jaschamonk.subs.com thegoodfight for 25% off this podcast, which means that you don't miss those interesting parts of a conversation that are behind a paywall in most episodes and most importantly that you support the existence of this publication, go to yaschamunk.substack.com thegoodfight for 25% off, which means that you are paying about a dollar a week in order to help make sure that this podcast and this publication continues to exist. Tom Ginsberg, welcome to the podcast.
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Thanks so much, Jasa. Always fun to see you.
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So I've been thinking about a quote that I believe, unless I'm mistaken, comes from Immanuel Kant, which is that the right kind of political system would be designed in such a way that even a race of devils would obey it. That even if everybody engaged in the political system was self serving and sociopathic, the institutions of that constitutional republic would still hold. It occurs to me that we are engaged in a giant natural experiment in the United States, but also elsewhere to test that hypothesis, to test attempts at doing that. And you are somebody who, along with lots of interesting work about free expression and reforming the modern American university, which I want to touch on in this conversation, has fought very long time, has fought for a very long time about comparative institutions, about to what extent constitutions can actually serve the goals of democratic stability. So what is your conclusion? I mean, is that hope completely chimerical? Does it always depend on the particular local political cultures and the values that people actually have? Or can the right kind of constitution really constrain the ambitions of bad demagogues? To a considerable extent.
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That's a great question. And it's an enduring question of political theory, of course, because certainly since the era of modern constitution begins with the American founding in 1787, you've had this idea of constitutional designers that they could design, as one book on the topic is called a machine that would go in and of itself without any kind of regardless of the character of the individuals who were inhabiting it. And that's obviously an aspiration which hasn't been met. We can talk about exactly what assumptions were problematic that they made back at the founding, but at the same time it is important to recognize, recognize that those of us who study institutions think that institutions matter. And if institutions matter, then they do constrain. Maybe not in a perfectly predictable machine like way or not. You know, it's not like the laws of physics, but we can in social science try to identify tendencies that come from certain aspects of institutional design. So I think it's an enduring debate and I would just say that the Kant quote fits perfectly with James Madison's idea, right, that let ambition counteract ambition extend the republic. He had all these ideas for institutional solutions to the fundamental problems he saw facing political communities. And that leads to pretty successful experiments, though it is one that is being challenged very sorely as we speak.
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So tell us a little bit about what the core things are that the Constitution needs to have to constrain the ambition of demagogues. Obviously, the idea of a rule of law and the separation of powers is, I imagine, going to be crucial to this. But let's bracket out the things that every modern Constitution basically has. What are the things that are not totally obvious to some who are a little bit informed about politics, but are really helpful in constraining the kind of ambitions that demagogues might have?
- [07:18]
A
Yeah, maybe I'll answer that by talking first about the US Constitution, because Madison has this idea, you just set up these three powers and they'll fight with each other and that will enhance liberty. And if you were writing a Constitution today, you're talking about doing this in Ghana right now. There's an experiment in Bangladesh. Countries periodically do go through efforts to write new constitutions. They're not looking at Madison as the model. There's been a lot of evolution of constitutional technology, if I can use the term, in terms of thinking about what institutions are necessary to constrain. So one whole branch of thinking has to do with emergency powers. Right. Big debate in political theory between sort of Lockeans and Machiavellians about whether or not. Whether or not emergency law can constrain emergency power. That's the fundamental question. And most Constitutions nowadays would have a whole very elaborate set of rules about emergencies where Congress has to approve. They only go on for a certain amount of time. Of course, the US Constitution lacks that. We don't really have much on that at all. And you see, I think right now a grave abuse of the emergency rhetoric going on using statutes, individual statutes that have granted presidents certain emergency powers, but they're being pushed really to the limit. It would be much better if we had a well thought out emergency regime. So that's just one example, I'd say. In general, separation of powers is obviously critical since World War II, a robust set of rights. The assumption of the last few decades is that courts are necessary, judicial review and what we sometimes call a fourth branch of government, that is institutions which are set up not really to do anything affirmatively, but to check the other branches to engage in accountability, counter corruption commissions and things of that nature. And so, you know, that's kind of your basic constitutional design. You almost could have a generic one and pull it off the shelf. But people do want to tailor it to their own histories and their own needs and their own institutional problems.
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American listeners are going to be used to a system in which the separation of powers really is very strong. In the United States, you have judiciary with an unusually strong form of judicial review in which the Supreme Court can and historically has struck down many laws because they violate a broad interpretation of some constitutional principles, some of which, like the right to privacy, are not explicitly written into the Constitution. In those terms, you have, importantly, a president who's directly elected by one kind of route. So the executive derives its power from the president that is elected in one kind of way. And then, of course, you have a legislature that is elected often at different times than the president. The house is elected for two years at the same time as the president. But then there's midterm elections. Only a third of the senate is elected at the same time as the president, and again by kind of quite different electoral mechanisms. So I think it makes sense in the United States to talk about the three branches of the government. When I look at many European democracies and many parliamentary democracies, it's always struck me that this idea, which is repeated in those countries just as much as the United States, that there's three branches of government and that they really are separate, is a little bit of a fiction. Right. In Britain or in Germany or in many of those places, the prime minister or the chancellor is elected by the parliament. So the election that results in a parliamentary majority in the legislature for one party or set of parties is the same election as the one that results in the head of the executive. And of course, the head of the executive relies on a majority in parliament, but also therefore always has a majority in parliament. Now, they might lose that majority, and that is a significant check on the executive. But it's just unclear to me that in the German or the British context, it's particularly helpful to talk about a separation between the executive and the legislature in the way it is in the United States. Am I overstating this point? Do you agree with this? And what does that actually mean for checks on executive power in those political systems?
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Right. Well, so separation of powers, the phrase means different things in different countries. In France, they tend to focus not so much on legislature and president, because, as you know, it's a kind of semi presidential system that mixes those two. But they're really worried about the judges, so that the judges should stay in their lane. That's really important. That's another part of the separation in powers in the Parliamentary systems you described, there are a bunch of constraints, of course, and courts are one of them. Fundamental rights are one these accountability offices. One of the things I've become very interested in writing on now is constitutional monarchy as a constraint. When you think about the most powerful and successful and rich democracies in the world, constitutional monarchies, which are parliamentary, right? They have legislatures, and the head of state is not, you know, has nothing to do with the legislature, but the head of government does they. Those are extremely successful countries. And one of the reasons I think that they are successful is that monarch doesn't play any active role in politics, but does do a couple things. They can play a sort of upper limit. They can put an upper limit on populism in some sense, because populist appeals to represent the nation are already sort of taken by this other person. And I think they also can form a check on government. If you had a really crazy government, the Queen of England wouldn't recognize it and such. And so that's another, I think, underappreciated source of constraints in, you know, to
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sum up, there's a huge literature just on monarchies. I think that you're right. It's very important that, you know, a key appeal of populace is I am the true voice of a nation. I am the true representative of a nation. And therefore, if anybody disagrees with me by virtue of that fact, illegitimate by virtue of that fact, enemies of the people. That's much harder to do when you have a monarch, because the monarch is supposed to be the true representation of the people. And as long as they retain some form of popular legitimacy, that takes away some of that space. That's an interesting observation. The other one that I would add is that. It makes it obvious that you can criticize the head of government without being disloyal to your state. In the United Kingdom, it is impolite to criticize beyond certain normal ways the monarch. But precisely because there's the monarch, it's not at all impolite to criticize the prime minister. The prime minister is but the first servant of the monarch in a certain kind of sense. And so, of course, you can criticize them. Whereas in presidential systems, to criticize the head of government is also to criticize the head of state is also to undermine the dignity of a state in a certain kind of way. And that, I think, can breed a less healthy political culture in that specific respect.
- [14:35]
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Absolutely. I think all of that is right, that there's this kind of ontological unity that a monarch forms and everyone in the country can be a subject, whether they're a religious minority or a racial minority or something like that. So it integrates the nation in important ways. And I do think what you said about populism is very important, that it's this kind of upper ceiling on sort of populist appeals. I mean, Boris Johnson was a populist, but he didn't get nearly as far as Donald Trump and he just couldn't. He was, you know, just kind of a brief blip in British history. But, you know, to step back a minute, there's a big literature on presidentialism versus parliamentarism going back to the 1990s. My reading of the literature is that it's inconclusive. You know, we have democratic backsliding in both parliamentary countries like Hungary and presidential republics like the United States, semi presidential systems like Poland. We have, you know, good, well performing parliamentary governments and bad performing parliamentary governments. So it's, it's, you know, it. I'm not sure I would say that countries can switch very easily between them, but it's not clear that the system itself makes a huge difference. Sort of depends on what you're trying to optimize at any particular. In any particular context.
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Yeah, that's very interesting. I mean, one way of thinking about this is that, you know, if you are particularly worried about democratic stability and averting democratic backsliding, the natural instinct is to say the more checks and balances you have, the more veto points you have, the harder you make it for somebody to concentrate power in their own hands, the better it's going to be. Very logical train of thought. The problem seems to be, at least that's one argument in literature about semi presidential systems like the one in France and like the one that prevails in Latin America and the one that actually the United States has, which is to say a system in which often the president is of one political party or one kind of movement and doesn't have an inbuilt majority in parliament the way that they would in Germany or Britain, is that this can lead to so much gridlock and therefore so much frustration that then ironically, the political space opens for somebody to say all of these traditional parties don't work, all of these mechanisms don't work. I'm the one who's going to speak for the people. Give me the power to fix this damn thing. Or it can even lead to historically in Latin America, in particular, military coups by generals who say all of this political stuff isn't working. I need to step in and save the system for a little while. What is your read on that? Is there such a thing as too much restraint on the power of the executive, of too many veto points in the system, such that even as you're seemingly making it harder for one person to concentrate power in their own hands, the sheer difficulty of getting anything done then perversely, ironically favors the consolidation of power in the hands of somebody acting in an extra constitutional capacity.
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Yeah, that's obviously a fundamental trade off, you know, preventing tyranny versus gridlock, and you're trying to optimize across those two dimensions. I think some people would say that part of the genius of the United States Constitution is that it has tend towards the gridlock end of things. It's very hard to get things done unless you have a sustained political coalition. And every once in a while that someone comes along that is able to mobilize the public and really change the country. But it's pretty hard to do. And so that means there's a lot of frustration. We can't get things done. On the other hand, things like property rights are very well protected because some of the things that people might want to get done might infringe with property rights. This sort of steady growth of the the US Economy might be in part attributable to the fact that politicians of whatever stripe are unable to really tinker around too much like they can in other countries. You know, Roosevelt's a really interesting character there. You know, I think people in the, on the democratic side of things tend to think of him as, well, he broke through the gridlock, he saved the country, he did all these important things. But, you know, another way to look at him is that he was a dictator who defied term limits and died in office and, you know, really manipulated property rights and dirty fundamental ways. And that's been kind of an enduring political debate since then. So which tendency you favor might just depend on who's in charge right now and what you think of their policies. If you push towards accountability or you push towards getting things done.
- [19:11]
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Since you mentioned term limits, that's obviously an important trade off as well. On the one hand, you might think that what often happens when people consolidate power is that they're in office for so long that they're able to place their loyalists into all kinds of institutions, that they start to develop corrupt patronage systems, that they sort of slowly and gradually overwhelm the system. And one way to avoid that happening is to place a limit on the length of time they can be in office. Perhaps one long presidential Term or two presidential terms, as was historically the case in the United States and as was formalized after FDR remained in power for presidential terms until he died. And that's going to avert that kind of outcome. Of course, on the other hand, this stands first for consideration that as citizens we should be able to vote for whoever we think is best at the job. And when there's somebody who's doing the job pretty well, then we should be allowed to vote for them. Again, why should we put this artificial constraint on our own ability to choose? And secondly, of course, that you might be pushing people towards extra legal behavior. The only way to satisfy the ambition to stay in office for another term is to really start violating the Constitution in a very open way or placing enough judges on the Supreme Court that they have very absurd readings of a Constitution, et cetera. It may be incentivizing the crossing of the Rubicon in ways that are quite dangerous. What is your view on term limits for legislators, but particularly perhaps for heads of government? Are they a good idea? Are they a bad idea?
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Yeah. Well, first of all, the term limits for legislators is a separate topic and generally speaking, not a good idea. Because if you think about being a legislator, it's like anything else. You get better with time and you and learn how to use those powers. You don't have the same fear of tyranny that you do with the executive term limits. And so it goes back again to the Federalist Papers. There was debates between the Federalists and the anti Federalists about term limits and they decided not to include them. But that might be because they thought that Washington was going to be the first president, he was going to step down anyway. And that's exactly what happened after two terms. And then we had kind of an unwritten norm for a while. Clearly the trend in constitutional design in presidential systems is to have explicit term limits. And the modal design is two five year terms that's the most common. Now about 80% of presidential systems have some form of term limit. So it's one of these things I think there's been learning going on over time collectively. Constitution makers are learning that term limits are good. That risk of tyranny is a real one. And one thing that it does is it incentivizes the leader to designate a successor. That is, it incentivizes the rule of parties rather than personalities. Right. So knowing that I'm going to be out in 10 years, I'm just going to have to find someone who can continue my legacy and that builds stronger Parties, which are, of course, essential for democracy. Now, on the other hand, you have these parliamentary systems where there's no term limit. And I guess I'd ask you, as a German, did Angela Merkel stay too long there? A tendency to just keep someone there because you're familiar with them, Maybe longer than they should, given that they can. We sometimes have very long parliamentary terms in some of those systems.
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I have mixed feelings about Angela Merkel. I think that she's a very decent woman with broadly decent values. I also think that on the big questions facing Germany and Europe, she was persistently wrong, from getting out of nuclear power, which I think was a significant mistake, to failing to recognize what the drift towards liberal democracy in Hungary meant for the legitimacy of the European Union, to being despite her personal feelings about Putin, which were not very warm, very reluctant to make a break with Russia, pushing ahead with a building of Nord Stream 2 to what I think in retrospect must be seen as a mistake for the German political culture, which was her approach to the refugee crisis in 2015, which has resulted in the alternative of Germany, which is a more extreme populist party than in many other European countries, now being, according to some Poles, the biggest party in parliament. So I think that history won't look kindly upon her. Would many of these mistakes have been fixed if she had somehow been term limited and somebody else had come into power? Perhaps, actually. Perhaps there would have been different members of the CDU who would have taken over, who would have been a little bit more decided about that. The record of the two governments that followed on her don't necessarily suggest that Olaf Scholz, who's a social Democrat, was a very uninspired chancellor, devoid of vision or charisma. He made his way as the prime minister, which basically is the mayor of Hamburg since the city state. So it recalls Winston Churchill's line about Baldwin and his municipal mind not being able to understand the stakes of the moment. And now power has reverted back to the Christian Democratic Party in Friedrich Merz, an internal party rival, to Merkel, somebody who rightly criticized her on some of these points. But his ability to actually make a difference on setting Germany up strategically for a better future doesn't look too hot about a year into his first term in government either. So would it have been better without her? I don't know. Hard to say. But there is also an interesting difference in the internal culture of political parties. What's striking about Germany is that political parties are very loyal to their leaders. And the CDU in Germany is sometimes called a Kanzler Walferein, which is an association for electing the Chancellor. Whereas the Tories, the Conservatives in Britain, of course, have a long tradition of rebelling against their party leader. Margaret Thatcher, one of the most impactful and popular Conservative prime ministers, certainly among Conservatives, was ultimately pushed out from office not by the will of the population, for opinion polls certainly played a role, but by a rebellion of backbenchers. And of course, so was Boris Johnson. And so are many other prime ministers that we've had on the Conservative side in between whatever, 17 or 24 of them, or not quite as many. Four, but yeah, so that's very interesting. I think that there are these internal party cultures that make a big difference as well.
- [26:07]
A
Yeah, Parties turn out to be critically important. And one of the theories of why we're seeing backsliding around the world is, as Kim Lane Shepley put it, the party's over. The parties have become weaker, generally speaking, and they serve perhaps just as you said, instrumental purpose as a club for electing the Chancellor rather than being part of people's identity, day to day lives and such. And you can't really have democracy without parties. And so I don't know, that's above my pay grade to figure out how to revive parties. I'm pretty critical of both of them in the United States right now. But we need them and we need them to do a good job and we need them to do their job, which is to look in the midterm and long term and not simply follow the winds of whatever the trend of the moment is, which is what we see on the Republican side now.
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And of course, one of the interesting things is that political parties are by far in a way the most important institutions that weren't theorized at the birth of modern democracy.
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Yes, of course, Madison thought they were the enemy faction. He was so worried about faction that he actually didn't think parties would form under his Constitution. And by the way that leads, I can make a point, a brief point, about the absolute worst design decision in the entire American Constitution was his decision to give the drawing of electoral boundaries and the time, place and manner of elections to state legislatures. He didn't think there would be parties. He thought these would be grand old men of each state and they would be public interest, public minded people. That has been a very consequential, very bad decision that he made there.
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I want to go back to something you mentioned a few minutes ago, which is the kind of formalization of political norms. So the United States had this norm that presidents should be limited to two presidential terms established by George Washington when he declined to run for a third term. This was followed throughout the 19th century, even by presidents like Andrew Jackson, who you might have expected not to follow it. And then FDR broke it. And the response to that was to formalize this political norm. Now, in a time in which many politicians seem to be violating fundamental political norms in ways that often don't break the letter of a law, don't break the constitution, but really go against political traditions that are widely fought by political scientists to be an important aspect of how the system operates and survives, one natural response is to go around and systematize all of those norms, to go around and say, well, why don't we take stock of all of the norms in our democratic system that are really important and we just formalize them, and that's going to then protect us against those kind of demagogic politicians? Is that feasible? Is that sensible? Do you think that that would end up constraining us in all kinds of ways that would backfire? Is there any particular reason even to think that a written constitution like the United States is in the long run superior to an unwritten constitution where really fundamental norms are implicit in the political system like the United Kingdom? What does the comparative perspective suggest about that?
- [29:35]
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So I do think written constitutions are a useful technology, and I think they are an improvement on systems with unwritten norms. Of course, every system has unwritten norms in the background. But, you know, clarity of rules can help when there's a constitution. When there's a crisis of some kind, it can help decision makers sort of focus on what needs to happen. And so I think written constitutions are good, but they're always playing a little bit of catch up. The founders were focused on, you know, what they thought were the problems in the British constitution. Latin Americans were looking at the American one, trying to improve that. And so there's a sense in which we're always searching for institutional designs that never fully satisfy us. Constitutions have gotten much longer since the 18th century. The average constitution now has got to be three or four times the length of the U.S. constitution. And some of them are really, really big. The Indian constitution is like war and Peace. And that reflects a kind of optimism about institutional tinkering and institutional management. And of course, it's not perfect, but I do think they tend to work. In one of the studies I did with my co author Zach Elk and James Melton, we looked at what makes constitutions last a long time, what makes them Endure. And we discovered that the life expectancy for all countries constitutions since 1789 was only 19 years, which clearly is too short to do anything we'd want them to do to provide a stable basis for politics. But in looking at what were the factors that helped constitutions to survive, one of them was a lot of detail actually, so that it becomes something that people really work with in their daily life. Politicians look to, they amend a lot. Those are the things which, those are the constitutions which endure, the US Notwithstanding.
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That's a really striking fact about the average length of constitutions. To what extent is that a statistical artifact? So a famous statistic that 2/3 of people who leave prison today are going to be back in prison at some point in their lives. And this might make you think that, you know, the overwhelming majority of people who've been to prison are sort of in and out, in and out. That's not actually the case. There's a small number of people who are in and out of prison over and over again. But 2/3 of the people who've ever been to prison have only been to prison once. Right. So most people go to prison for something and then they'll never go back to prison. But because the smaller number of people who are in and out of prison end up over represented in this sample of people who are leaving. If you're just standing at the gates of a prison, looking at this person who's leaving right now, there's this seemingly paradoxical disjunction between those two facts. Is that similar for the constitutions? Is there a large number of countries that have constitutions that endure for a really long time and then there's some smaller number of countries that change the constitution every five years and so this number looks artificially low. Or is it just the case that for most Democrats, democracies, they keep changing constitutions in that kind of way?
- [32:44]
A
There's all kinds of different national patterns. So for every United States, there's a country like Thailand, which has had 20 of them since 1932. And they're one of these countries that's always cycling through them. But what's interesting is you have countries like, well, Mexico, which has a very enduring constitution now over 100 years old. There's only about 15 which have ever made it to the age of 100. And Mexico's is one of them. But it came to that after some experimentation and periods of great instability early in the country's history. So, you know, I think there's, there's, I'm Not. I don't think it's a statistical artifact. I stand by the statistics. But as with any statistical result, there are obviously anomalous cases, and the United States is one of them, for sure. Yeah, I think it's, you know, we. The fact that our Constitution has survived so long is really odd. If you think about technologies from the 19th, from the 18th century, you know, that have surv. Survived, they are very few. We're not writing books on feather pens and things like that, and no one rides horses. And yet we're still trying to muddle through with this governance structure, which is pretty archaic and I think right now showing great strength.
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B
What does the experience of trying to rewrite constitutions teach us about what the effect of that tends to? The American Constitution, as you're pointing out, is a very old document written in the 18th century. An additional fact about it is that it's extremely hard to amend the American Constitution. Much more difficult than I imagine the great majority of constitutions in other countries. Certainly harder than the other constitutions that I know somewhat well. And so it's very tempting in their voices. This is in our politics saying, well, let's just shove this aside. There's some founding fathers who said they thought that we should make a new constitution in a periodic way anyway, and let's write a new constitution. Of course, precisely in a moment when politics is extremely polarized, when the stakes of politics are extremely high. I personally worry very much that that could go vastly off the rails and that what you'd end up with could be complete political stalemates, a much higher octane form of politics while you're trying to figure out this new constitution and possibly a very, very messy document that is much inferior. I was speaking in Chile briefly before they had decided, or at the time they had decided to write a new constitution, and they had an election for constitutional assembly in which the left won by a large majority and wrote a very long, complicated constitution that was promising people everything. It was very unpopular, and there was a ratification mechanism and a big majority of Chileans voted against ratifying the constitution. So then they had, I believe, a new election for a new constitutional assembly, and the right really dominated that one. And the right went to work to write its favorite constitution, and once again, it turned out to be incredibly unpopular, and Chileans voted against it. And. And now they continue to have a constitution they had before. What do you think about the wisdom of a prospect of rewriting constitutions in the way that some people hope for in the United States?
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Yeah, I think Chile is a important case for us to study. As you point out, both sides, when they had the opportunity, overreached. They tried to get everything that they wanted in their particular constitution. And so they're muddling through with one written by Augusto Pinicheff, the dictator. And, you know, it seems to be a pretty workable one. It's not perfect, but it seems to have stabilized Chilean democracy pretty well. And I think there's great lessons for the United States. I'm with you. I share your instinct. If we were to have a new Constitutional convention, which is allowed under Article 5 of the Constitution, we could have a new convention. Imagine what we'd spend our time talking about. It would be about abortion and bathrooms and things like this. We wouldn't be fixing the fundamental problems of American governance. And so I do think it would be a bad idea for us to launch another effort.
- [37:03]
B
All right, final question about constitutions. So for all the reasons that you outlined, I think that it probably would be a bad idea to do a new Constitutional Convention in the United States. I have great trouble seeing that go away. But imagine alternative scenario, a scenario in which some very renowned constitutional scholar, let's say Tom Ginsburg, were to be appointed, to coin a phrase that nobody's ever uttered before in American politics, dictated for a day and you had one day to amend and change the U.S. constitution. And let's say that for absolute power corrupts absolutely. One day is not enough to corrupt Tom Ginsburg. So you're doing this in a public spirited manner to improve the functioning of the US Political system and to minimize the chance that American democracy collapses over the course of the next. Let's be ambitious. 100 years. What changes would you make?
- [38:01]
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Wow. I would undo Madison's error of assigning districts and such to the state legislatures. I think that's a huge error. And it's created a situation which you know very well, where our politicians are more polarized than the voters because the politicians draw districts that make them safe, which means they don't have to appeal to voters in the center. So I think that's all a problem to me of gerrymandering and district design. And if we had sort of a bipartisan or neutral way of doing that. Many countries have electoral commissions that draw the lines, and they seem to do a very good job that I think would be the linchpin reform for American politics. There's lots of other things. The electoral college, lots of dumb provisions. Every year I ask my students, what's the dumbest provision in the US Constitution? And you get various answers, but I do think that changing the fundamental organizing of politics is pretty important here.
- [39:04]
B
All right. One of the aspects of the U.S. constitution that I personally like very much is the. The First Amendment, which protects citizens against arrest and imprisonment for what they say, among other rights that we derive from that in a way that today cannot at all be taken for granted in many supposed democracies around the world. I've written on persuasion on my substack about the extent to which, for example, Britain and Germany and other European countries now routinely arrest and sometimes jail people for their online political speech in ways that really worry me. At the same time, the First Amendment only goes so far. In order to have a genuine culture of free exchange in society as a whole and within our universities, you need norms that actually protect free expression in ways that go beyond the First Amendment. What went off the rails, particularly in universities, with regard to free expression over the last years, and what do you think universities can do to ensure that campus once again becomes a place where faculty members, students, other members of a community genuinely feel empowered to express their views, rather than, as many surveys suggest, self censoring to an astonishing degree.
- [40:27]
A
Yeah, it's. There's been a lot written about this, and I know you've had Jonathan Haidt on Persuasion before, and I'm persuaded by his view that the social media really did change things. When I was in college in Berkeley, I guess, many decades ago, there was this sense, well, everyone's sort of on the left, but it's fun to argue and take positions that the other side might have to work out the best arguments, that kind of million, give and take, to sharpen your arguments through, through debate. And something has happened in American political culture where that is no longer the case. We want to only hear arguments of people we agree with. The social media has polarized people, I think, and it's had a particularly pernicious effect on young people. And so you have had for the last decade or so, too many people who do not want to be exposed to arguments they already think they disagree with. And that's fundamentally illiberal and against the mission of education. Then, of course, we've had the phenomenon of people exploiting the open environment of universities in order to get social media followings. I think of people like Milo Yiannopoulos or something like that, who has no idea, no academic thing to say, but he sort of exploits the fact that people are going to protest him to try to get more followers. So it's been very corrosive of free expression in Universe. And now I should say more generally, free expression is a kind of semiotic here. It's not what we actually mean in the public sphere. In democracy, we want people to say whatever they want without constraint, subject to some very small number of limits. But in a university setting, we're about something different. We're about exchanging ideas. And that requires, as you said, a lot of norms and a lot of rules about how we can say things. Otherwise we're not going to have productive speech. I tend to focus on expression in service of inquiry. So I run something at Chicago called the Forum for Free Inquiry and Expression. That is, in the university, the fundamental value is inquiry. We often be learning and we have to be inquiring into this state of, of the world and figuring out what to do about it. And that requires free expression, right? It requires, like a give and take, but it's obviously not an unlimited form of free expression. And so we should derive our rules in some sense from that fundamental purpose of inquiry. But we're at a very odd juncture because the right was really pushing for this idea of getting back to a free speech on campus. But now that the Trump administration's in charge, they're not actually very, actually very committed to that, as the fire.org and Greg Lukianoff have demonstrated empirically. So it's up to us. We have to reclaim a culture in which students can talk to each other, professor can talk to each other, which we all have the spirit of trying to help each other learn through respectful argument, rather than simply yelling at each other and scoring points for some external environment.
- [43:37]
B
So the Forum at Chicago, of which you are the founding director, I believe, is a major initiative. It's one of the biggest earmarked donations in the history of University of Chicago. $100 million. What does the Forum do, and how is it that institutions like that can actually animate free inquiry and free expression on university campuses in other places as well?
- [44:04]
A
Yeah, I think we're seeing a lot of initiatives around the country. So it's very exciting. And there are very different things going on in different campuses, which is, of course, appropriate. We are fortunate at the University of Chicago to be at the place which has stood for academic freedom for its entire existence. So, you know, unlike, say, Harvard, we were founded in the Progressive era of the late 19th century. And so there was a lot of commitment really to democracy, to science, to free expression, to academic freedom. And what. So part of what we do then is to orient people who come to the university. And that would be everyone, students, faculty, Even staff. Ideally, I'd hope to have everyone learn about the tradition and the way that this university has approached those issues. Now, you don't have to agree with it. It's not propaganda. Not everyone has to agree with, for example, the Calvin Report, which says that the university doesn't take positions on issues of the day. We just were neutral with regard to any. We don't have a foreign policy, for example. You know, not everyone has to agree with that, but they at least have to understand it and understand what the purpose of, you know, the conversations that we're having is. So orientations, that's really good and important and I think a lot of places, and they take this more seriously. Daniel Diermeyer at Vanderbilt has some things. He's doing a number of good initiatives. Another thing we do is we give funds for people who want to research any aspect of free expression. So we gave research grants and conference grants to people all over campus. And that ranges from, you know, everything from Islamic history to contemporary social psychology to AI models and free expression. So try research these topics in a very serious way. We have a lot of events and we put them on ourselves or we fund others around the university who want to do events. And sometimes that would take the form of two people just disagreeing about something. Sometimes we have a student group. This has been a real success story, is that we empower the students to invite people that they want to hear, but the basic rule is no one's views go unchallenged. So actually, this last semester, we had both Francesca Albanese, the UN Special Rapporteur on Palestine, who's been, I think, banned from the United States by the Trump administration. She appeared virtually at an event. We had John Eastman, who was Trump's lawyer, who helped, you know, come up with a theory to overthrow the election in. On January 6, because students wanted to invite them. And in each case, we made a kind of a. We had a format which worked. So Eastman, for example, we required everyone to read his paper beforehand, and he gave the paper and the students basically shredded it to pieces. I mean, there's nothing left of this argument afterwards. We didn't protest him, we didn't shout at him. So that's what we're trying to encourage. And. And of course, as that example suggests, it requires a lot of rules. Right? You can't just. We, in some sense, teach people how to protest if they don't like a speaker. There's lots of things you can do, but the one thing you can't do is disrupt. We just can't tolerate that because that's fundamentally patronizing to the listeners. That's the problem with disruption. You're fundamentally patronizing the other people in the room. You're saying, you people can't make your own judgment about this speaker because the words are so poisonous, and you can't go down that road. So we're trying, in some sense to create a kind of small l liberal sensibility in the university and doing that by empowering as many of people around the university as we can. So it's been a lot of fun, It's a lot of work. But we also want to kind of, you know, share the ideas with other schools around the country and exchange views about how to advance this. I think it's essential.
- [48:07]
B
How receptive have you found the university community to be to those arguments and those concerns? You know, I teach about free speech in some of my courses, and I find that there's some number of students, probably a small number of students, who are already committed to free speech in a very principled way. Then I would say that there's a small number, but perhaps a slightly larger number of students who has deep objections to the idea of free speech, often from a woke point of view, saying that the harm that emanates from offensive speech is so big that it should obviously be banned from campus because that is not the kind of community in which people should be expected to have to live or something like that. But I find that by far and away, the largest number of students who I deal with don't have very principled views about free speech one way or the other. They haven't thought about it very much. Most of them have never really encountered basic arguments about free speech in their education that far. These are very smart, well educated, educated young people. I remember one student in particular who, again, was excellent in my class and a very thoughtful person responding to what I think is the most basic argument for free speech, namely, well, of course, we might want to ban all kinds of horrible speech, and the world might be better if we're able to do that. But are we going to agree on what qualifies as such speech? And can we have confidence that the people making those decisions are systematically going to be on the side of the good rather than the side of the bad? Might they not turn out sometimes to ban the speech that you think is particularly important? And she sort of looked at me with big eyes and said, I'd never heard that argument. I'd never considered that argument. And so I'm curious about what your experience in this regard is do you find that you walk into a room where half of the students really believe in free speech and half of students really disagree with it? Do you normally walk into rooms where a lot of people just haven't thought that hard about these principles? What's your experience being at Chicago? Lowe's has the brand's pros trust to get the job done. You can now shop new Catalyst fencing solutions and save big when you do 10% off when you buy in bulk. Plus save $180 on a DeWalt 12 inch dual bevel sliding compound miter saw. Now just $449. Our best lineup is here at Lowe's, valid through 5, 6, while supplies last selection varies by location.
- [50:53]
A
I think we're lucky a little bit because we do have a little bit of a brand of free speech. So people select in sort of knowing that that's what's going to go on. But I agree that we have to remind people in every generation of this fundamental argument. And it is the argument of the First Amendment. It, it's basically distrust of the regulator. Yes, we know that lots of speech is really bad and really painful and we don't like it and we don't value it and we want to discourage it. But who are we going to trust to make those calls? And that's true in the country and it's true in university campuses. Who says that some administrator in the provost's office should be the czar of speech? Why do we trust that person's values? And so ultimately I, I think of it as, you know, free speech is an absence of constraint. But it's not enough. We have to do that other bit of sort of acculturating people to using speech in useful ways, not thinking about like, oh, you know, that person said this, let's go punish them. But how can you engage that person in a way that's going to be, make it a productive conversation? I won't say it's not challenging. And this is partly where the broader environment is really not helpful. Nowadays you might get some students who, you know, want to be as their career aspiration, Tucker Carlson or something like that, you know, and so they come in kind of being troll like in a classroom. And that doesn't work very well. It doesn't. It's not conducive to other people's education. So you really need. That's where good teaching comes in. Right. All of us as teachers have had these moments where they're very challenging and you got to kind of channel the conversation in particular ways. But at the same time, there's a. The. The graver risk, which I think we were subject to for the last decade or so, is that there was a whole side of the political aisle that would never express itself in class. I will give you an example. I was teaching a class I've been teaching for 25 years, and I asked the students, you know, if there's one provision of the US Constitution, what would you change? The same question you asked me. And a couple years ago, for the first time, someone raised their hand and said, you know, I would have an amendment that said life begins at conception. And I was shocked to hear this, even though of course I pride myself on having friends and relatives who were on the other side of the abortion debate than I am. But I just never had heard that in the classroom. And I said, okay, that's an interesting one. And we went on to the next one, and someone had something completely different, and it was okay. It was all right. People were able to do it. But the very fact that I was surprised by that, someone who has been in universities for more than three decades in one form or another, suggest that we really haven't been reflecting the views of large parts of the American public. So we have to make an effort at that. But to do so in a way that's productive for everybody.
- [53:43]
B
We agree about lots of things. Most things I think perhaps too much for a conversation that is as lively as it could be. I wonder whether we might have a slight disagreement on one point, and I want to go back to it. So. So you were saying earlier that the way we should think about free speech on the university campus is shaped by the purpose of the university being about inquiry. And I think in terms of a justification for why we should care about free speech, I agree with that, that academic freedom goes beyond the First Amendment protections for free speech in important ways. And the reason for that is that we know that the most important contributions to academic research and more broadly to public intellectual life have often been hugely unpopular in their day. And so if we want universities like Chicago or like Hopkins, where I teach, and like all the other great American universities to continue to make those contributions, you have to make sure that research are able to take unpopular positions. Whether those positions are unpopular with the President of the United States, or whether those positions are unpopular with activist students, or whether those positions are simply unpopular with a colleague who are wedded to some particular methodology or particular set of orthodoxies in some field, it may be that those views to Any average American seem completely unexceptionable or even just hard to understand, but that in their fields, it's really, really hard to argue for that. And I think the more we are able to empower free inquiry in that sense, the more the university is going to live up to its purpose. Now, here's the concern I have. I wonder how you think about that. But this can also be an argument to say, well, the purpose of academic freedom is free inquiry. So when, let's say, a biologist expresses a view about trans questions that might be vaguely related, but it's not really in the course of their academic research that they're expressing those views, so those views upset some students at the university that shouldn't be protected because that's not really part of, of free inquiry. Or if a social scientist who mostly studies gerrymandering expresses a view about the conflict in the Middle east, that's not really what we gave him tenure for. That's not really the area of expertise. So perhaps we should constrain that in some kind of way. Now, I assume that you think that in those cases that speech shouldn't be constrained, but how should we think about that? I mean, when we say the purpose of these norms within the university is free inquiry, how do we make sure that we don't let that become a kind of argument to actually then suppress any speech that's not directly within the core field of academic expertise of the faculty member in ways that I think would actually deepen the kind of taboos you often have on campus?
- [56:44]
A
Yeah, it's a really complex question, actually, because academic freedom is a complicated, complex idea. The idea of academic freedom is that I have the right to pursue inquiry in my field in whatever way I want. And I can talk about that in any way I want. But that key qualifier was in the field. So who decides what's in the field and what isn't? I can go into my law class and teach about constitutional law, but I cannot teach about the laws of physics. Right. I could be fired if I insisted on teaching the laws of physics or talking about, you know, nuclear theory or something I'm not being hired to do so. Academic freedom isn't as broad as free expression. It's not, it's, it's more limited. We're not allowed to lie either in academia. So it's actually quite constrained, but it's always bounded by disciplines. And this is the Achilles heel of it. I, I cannot, you know, if I'm a historian, I can answer historical questions, but I can't really talk about chemistry, but who decides what's in or not? It's a decentralized community of those who make up the discipline. And one of the challenges of our moment is that a lot of disciplines are in trouble. Disciplines are, to quote a piece I wrote a few months ago for Inquisitive magazine, undisciplined. Some of them are becoming undisciplined. One sign that I focus on was, does the discipline have a foreign policy? And the Gaza war, The horrors of the Gaza war have really brought this out. Where the American Historical association has decided it's a boycotting discipline, or the anthropologists are a boycotting discipline. Well, to me, that's got nothing to do with anthropology. That's got to do with foreign policy. And so I think disciplines need to be more disciplined. They need to focus on their core methods of inquiry, and they can use those to bound speech and limit what academics can say. You also raise the issue of what we call extramural speech. So I'm a professor, but I also have First Amendment rights. I can go onto Twitter and say whatever I want as a citizen. And the academic freedom point is, I can't be punished as a professor for exercising my free speech rights because there's a fear that if you were to allow universities to, you know, look at everything everyone says, if we were to insist that professors always be apt with decorum and ethically, there'd be a moral hazard there, and you'd get administrators coming in and firing the professors that they disagreed with or who, you know, didn't vote with them in the faculty senate or something like that. So that's a more limited one. And it's very hard for the public to understand. It's very hard for the public to understand. You know, I'm sending my child to this college, and this professor is going on this rant about something they don't know about on Twitter, and they're being offensive and they're calling people terrible names and all this. How can that be? And I'm sympathetic with a parent who would have that view. I think we as professors should behave a little more responsibly. But there's again, the question is, who's going to make the call? Comes up. And so as a matter of conventional understanding of academic freedom in the United States, academics are free to engage in that extramural speech, the intramural.
- [60:06]
B
And you think that's right? Because I think here's where we get to the crux of it. Right. I agree that if you are hired to Teach intro level math. And instead of teaching intra level math, you start to go on about questions regarding controversies about trans rights or about the conflict in the Middle East. And we're not just talking about a stray remark or a half sentence or response to some off topic student question. We're saying you walk in and half of what you do is just to go on about that stuff. I think it's perfectly fair enough for the administration to say either you start teaching math or you're going to be out of the job. I think it's the concern about extramural speech that can create a very stifling campus community where people can look at comments that faculty members make, including some generally offensive comments, like in the case of Amy Wax at the University of Pennsylvania, and say we're going to take disciplinary action against you on the basis of that extramural speech, that you're potentially handing administrators a lot of excuses to punish anybody who flouts a campus orthodoxy. So you're describing what the current state of the law and that is, what do you think it should be? How should we think about that in academic framework freedom?
- [61:29]
A
So I think we need to do two things. Again, consistent with this discussion we've been having about norms. I do think we should encourage our colleagues to act like grown ups and not act like, you know, Twitter, your average Twitter user. I think we, it's not, can't be a condition of employment, but geez, you're a professor, this is such a privileged position. You have control over young minds. You really should act like a grownup. And I think we should do that on the one hand. On the other though, I don't understand. I think we do have to maintain these rules of allowing extramural speech. So in the case of Amy Wax, I don't think she should be fired. I don't think she should be fired. I disagree with her. I've heard her speak. I don't think she's good at all. And I think she's a racist, I'll say that. And she's made it very hard for them to put her in front of the classroom, in front of students in the classroom because of her extramural racist speech. And yet I find the line drawing so tricky that I think they should come up with another solution for her. And there are other solutions. There's lots of things the administration can do to her other than fire her. And I think they are doing some of those things. But I don't think she should be fired for her extramural speech.
- [62:39]
B
Only Tom Ginsberg, thank you so much for coming on the podcast.
- [62:43]
A
Thanks so much, Jaszta. So fun to talk to you.
- [62:47]
B
Sam.