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En provenance du cours de Yale University

America's Written Constitution

249 notes

Yale University

America's Written Constitution

249 notes

An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.

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Conclusion

Professor Amar hopes you will continue your journey through the U.S. Constitution by going beneath, beyond, and behind the text in AWC's sister course America's Unwritten Constitution. You'll learn of the traditions, court decisions, popular values, and precedents that compliment the text and complete The Document.

Conclusion27:36

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Akhil Reed Amar
Sterling Professor of Law and Political Science
Yale Law School

[BLANK_AUDIO]

Welcome back.

I've begun most of the lectures in

this MOOC series with those words, welcome back.

And I say them now and, and it's a

little bit bittersweet because I think this is the

last time I will be able to say those

words to you, because this is our final concluding lecture.

And in this lecture, I'd like to do several things.

I'd like to thank you, I'd like to remind you,

I'd like to advise you and I'd like to challenge you.

So, first, my thank you, is

if, if you've made it this far, you've gone through an awful lot,

we've many, many hours of of this MOOC

series, this massive open on-line course, series.

And at one level this is a free course.

It's designed to be accessible to, to you all.

There are no required texts, there's no

tuition, no property qualifications, as it were.

But at another level, it's of course a very expensive course.

Because your time is valuable, it's precious.

It's the most precious thing to you and you've chosen to spend a lot of that time

to be part of this experience and, and I personally am very grateful to you.

And, and I actually think that your,

your fellow citizens are, and should be grateful.

The constitutional project does not work

unless every, in every generations, thousands,

millions frankly, of Americans buy into the project and participate in it.

They, they have to show up to vote.

To serve on juries when called to, to do

public service when, when summoned by their fellow citizens.

To pay their taxes and ultimately their obligation in, involves not merely

speaking but, but listening, not just freedom of speech but a duty to listen.

Not just voting but deliberating and thinking, learning,

understanding our constitutional system, and that does take effort.

And that's the effort that you've all put into

this course, and so again, I thank you for that.

Now, I want to give you all, I want, having thanked you, I

want to remind you of that about what the course has been about.

It's organized around two books, America's Constitution: A Biography,

and America's Unwritten Constitution: The Precedents and Principles We Live By.

And just by way of reminder, here's what we did.

We started with a very careful and comprehensive

tour through this tourist text, the written constitution.

And I hope we learned several things, from,

from that tool, which aimed to be comprehensive.

We saw how well organized the text was, it begins with this idea

of popular sovereignty, we the people, then

it talks about the legislature, article one

the executive, article two the judicial, article three the states, article four the

constitutional supremacy principals of of amendment and

ordainment in articles five, six, and seven.

So its we saw the, the general organization of, of the thing as a whole.

And then we went through the amendments, and I hope you saw a second feature of

the constitution is inter-generational equality because the amendments

of course are added as so many post scripts,

and post post scripts, PPSes in chronological order,

and so at the end of, toward the end of those lectures in the

first half of the course, we carried the story forward in time.

We began with a kind of a funcitional organization.

A legislative power, executive power, a judicial power,

federalism, horizontally, and vertically.

But then we move from that functional

organization story to a chronological story, through

the Bill of Rights, and then the

Reconstruction Amendments adopted after the Civil War.

The Progressive Era Amendments in the 19 teens.

The 1960s amendments kind of a second reconstruction constitutionally ending

poll-tax disfranchisement, opening up the vote still further to, to young adults.

So that was the first book a, a guided tour of the, and I hope

a comprehensive one of the written constitution,

seeing its organization and its inter-generational chronological, flow.

And then, in the second half of the course,

we focused on the fact that the constitution is more.

Our constitutional culture, our constitutional experience,

constitutional law goes beyond this terse text.

It encompass it, to be sure.

We would never want to lose a connection to the written constitution.

But we talked about things beyond the written constitution.

And in particular, we, by the end of, of, of that experience, I hope

we came to see that the constitution,

America's constitution really combines at least four elements.

Let me summarize them.

There's the terse text, the written constitution.

That's one way in which we talk about a constitution.

There are unwritten principles of, of higher law, limiting government

that are not all textual specified but are still part of our constitutional system.

Many of these unwritten rules and principles are judicially enforceable.

Others, even though they're not in the text explicitly, others may not be

judiciously enforceable, but they still are

binding in legal conscience upon non-judicial actors.

And 225 years ago when the constitution

is being launched, that idea, the constitution has

higher principles that are really binding even if not set forth in the terse text.

That idea would have been very

recognizable, by both Americans and Englishmen.

Englishmen, of course, don't have, Britons don't have a written constitution in

this way, but they do have unwritten principles that are understood to bind.

Sometimes judicially, other times extra judicially outside the judiciary.

A third idea of a constitution.

A constitution are, is how the government,

how the society, the polity is constituted.

The procedures and protocols and processes by

which the government is organized and, and constituted.

That, idea, as well, would have been a well-understood by the

British because that is the British

constitution, how the government is organized.

We pave, we paid particular attention to some of the features, of some of the

institutional features, and constitutive features

of our system that a somehow entrenched, made difficult to change.

Some of these entrenchments are highly formal and legal,

even if not textually specified, they're enforceable in court.

Principles of separation of powers and federalism that a court might

enforce against ordinary legislative change

even though they're not written down.

So some of these are judicially enforceable, others

of them might operate, not so much by court order but

the more informal mechanisms of entrenchment, for example America's

two party system is a practical matter we have duopoly.

They're two big parties, that's part of our basic system of government.

And that maybe not judicially forced all the time,

but it's a fundamental and entrenched feature of the constitution.

So these first three ideas of that constitution is,

I think would have been well understood at the founding.

The terse test unwritten rules and, and principles of

higher law that constrain, and the way in which

the government is basically organized and constituted the basical,

the basic institutional procedures and protocols and principles and processes.

Now to those three elements I've encouraged us to think about a fourth.

The constitution also encompasses the tools and techniques by

which we make constitutional arguments, and read the constitution.

This doesn't come, this little document here doesn't come with a

specific and comprehensive set of rules about how its to be interpreted.

These rules are themselves part of America's constitutional system,

and and so what I hope we, we we've seen through the course is how these different

elements that terse text, the unwritten,

higher law principles, the organization of the

system as a whole, and the tools

and techniques of interpretation all fit together.

because, even though the first half focused more on the terse text and

the second half went beyond it, I hope in the second half we always kept the text in

mind, because the text is connected to the implicit principles, the

enacting and ordaining and amending deeds, the lived constitutional

experiences the landmark cases, the iconic

symbols of, of national unity, the basic structures and institutions of

government power, the state constitutional counterparts.

The written constitution is intermittently intertwined with all

of those other elements of our constitutional culture.

And so, I hope you see that even though we've had to go beyond the

terse text, we've always tried to, to connect to it and keep it in mind.

So that was by way of reminder.

I started, with, I will thank you and I want to

remind you, two things left to advise you and to challenge you.

On advice you might say, okay, well, professor, reaching the end of this

experience, what next if we're interested in learning more, what should we do?

Well, one thing of course it's not at all

a course requirement I hope it hasn't been but

if you do want to have a, get a

lot more detailed understanding of the constitution in general

and, and of these lectures in particular feel free

to go to a local library or a local

bookstore or go online and get copies of America's

Constitution: A Biography or America's Unwritten Constitution: The Precedents and

Principles We Live By.

These are, not expensive textbooks.

You can get a used copy on Amazon for, I think,

maybe 5 or $6, for the first book which is in paperback.

And the second one isn't in paperback yet, but I hope

it will be soon, and I think is $20 on Amazon.

And again remind, to remind you bookstores have them, but so do libraries.

So you do, you do not need to, to pay a penny in

order to experience the, the more detailed

information that you'll find in those books.

And you say okay, well professor, now even after I've read those books, what next?

Well, each of those books, and they're pretty hefty here, each

is about 500 pages of, of text, has 100 pages of end

notes that have all sorts of references to other books and

articles that you might read, depending on what's of interest to you.

I tried to write these to guide, the

reader and, to other, I think, interesting accounts.

And, and if you wanted one recommendation right now, you're not going to

be surprised, but you, that you can probably predict what I'm going to

say if you, the first thing probably to, to, to read in

addition to these books that I, I'd be delighted if you experienced.

The first thing of course is the Federalists Papers.

The which are again they're available actually online, for free,

you can get paperback copy for five or six bucks.

All libraries have them, most book stores have them.

And if you've read the books you've read my

two books, and you've looked at the end notes,

and you've read the Federalist Papers, and you still

want more, just Google my name, email me, tell me

what you've read, tell me what you liked about

what you read, tell me what you didn't like,

and I'll be happy to give you more reading

suggestions depending on your particular tastes and interests So there

are, there's a vast literature out there and depending on

your interests, you can go in all sorts of different directions

and I have tried to give you literally hundreds of

suggestions, reading suggestions, in the end notes, to these two books.

Okay, so I thanked you, and I reminded you, and I've

advised you.

I wana, I wana end by challenging you.

Remember how we began this, course.

We talked about how the constitution's preamble.

We the People of the United States.

And remember, I'm going to have to say something about this image here cause

I, I always do that, that's part of the course, so I will.

And this is the image that we started with.

But this preamble, we the people of the United

States, dot dot dot, do ordain and establish this constitution.

That was an epically democratic deed.

It was the hinge of human history.

It changed everything.

Never had so many people gotten together to

decide how they and their posterity would be governed.

The world would never be the same.

And it was also, a massive corporate merger of sorts.

13 different colonies forming one genuinely united system.

It was nothing less, really than world government for the new world.

Democratic world government for a new world

new continent, separated by vast oceanic moats from

the ancient, the, the monarchies, and, and

oligarchies and tyrannies of, of the ancient world.

So, it was democratic world government for a new world.

And it was premised on the idea that the new world was basically isolated

kind of an island continent separated from

the old world and and the, the question

is whether that makes sense today, that vision

because here are two things that are, two big fundamental things that have changed.

The rest of the world is democratic in a way that it wasn't before.

Much of it is.

At the time of the founding there were only

a couple of, of self-governing societies outside the New World.

Switzerland and Great Britain.

Now, half the planet is democratic.

On the con, on the model of the American Constitution, written constitutions, free

elections, free speech, religious tolerance a peaceful

transfers of powers between competing political parties.

For example, a billion people in India, that's where my parents

came from, are now self governing on the American constitutional model.

And so, so, the rest of the world is much more American than before.

And so maybe we, you know, the question, the challenge is, should we be

as isolationist in our thinking, and constitutional

thinking, as, as we have been thus far?

So, the rest of the world is more democratic, and, it's a smaller planet.

The framers idea was that, that these vast oceanic moats would protect us.

That the key is that we wouldn't need a big standing army, in, in peace time.

Because, we had the Atlantic Ocean to keep the bad guys away

and, and for 150 years, there is no major standing army in peace

time in America, and that was a huge part of America's success is

that it didn't have to have a big standing army in peace time.

But the world has changed and and the question is

whether constitutional thinking needs to, to change along side it.

When the constitution was being proposed, it was a, as

I said, it was as if there was world government.

And, and there's nothing, and, and it was designed to protect us

against the British, the constitution was

as a continental defense system, common defense.

We the people of the United States in order to,

dot, dot, dot, provide for the common defense, and it

was about protecting us against the Brits, and the Spanish,

and the French and, and, and others who would tyrannize.

But, and today if I said well we need to think about, your

generation needs to think seriously about world government on the democratic scale.

We haven't talked about that very much in this course.

But, but the challenge is for you to begin to think about that.

You might say, well, you know, there's, you know, what do you mean professor?

Do you mean we have to think seriously about whether we should

ever have a legislature, elected legislature of the world that could actual

pass laws, and impose taxes, and have an army, and, and you

say, there's nothing imaginable that would make me ever vote for that professor.

You might pause and say, well, unless the Martians came.

And if the Martians were coming say, well, you know, maybe

we have our disagreements with the Chinese, or, or the, the Russians.

But, but they are homo sapiens, so we're in.

That's actually what motivated Americans 225 years ago.

The Virginians have their disagreements with the Massachusetts

people who have their disagreements with the New Yorkers.

But the Martians were coming, the British threat

was a real one and an ongoing one, and

the Spanish and frankly the French too, and and

so common a continental defense arrangement was agreed to.

But the question is today whether really actually

is it really true that the Martians aren't coming?

Think about all the things that maybe

require, not just continental coordination, but, global coordination.

Climate change.

Pandemic viruses.

International terrorism.

Nuclear proliferation.

Maybe the Martians are coming in all these ways.

Maybe the Martians are carbon dioxide molecules that

are heating up the planet and will and whose solution will require not just

continental governance systems, but global governance systems.

And the same is true, as I said for, arguably, for nuclear proliferation and

international terrorism and, and pandemic viruses, and global opportunities.

We now have the internet and supersonic travel.

And, because of nuclear submarines and intercontinental missiles, we

are no longer separated from the rest of the world.

We might try to imagine we could build some

sort of, of protective bubble around this hemisphere or something.

But it's not going to be so easy when

you've got nuclear submarines just right off your coast.

So I end the postscript of the second book with a challenge.

And I want to, sort of end this this little section with a, with a challenge.

About creating genuinely democratic, global

constitutional systems, global governance systems.

Systems in which the American idea of, of democracy

on a broad scale is extended possibly even further.

Here's how I end, I say, you know, gee, this is I, I,

I don't know how that would work, and, and frankly I think I'm,

I think I'm probably to old to figure it out, because, I say, here's a quote,

the best ideas may well come from the young, that's you.

Madison and Hamilton were both in their mid 30s when they composed the

lion's share of the Federalist Essays,

championing world government for the new world.

Whereas Publius was a joint product of three men, John Jay rounded out the

trio, today's technology makes it possible for

many minds across the planet to collaborate.

If the blessings of liberty are to be secured for posterity, not

just for Americans, but for all God's children, young visionaries must speak up.

Publius II, Publius Jr., Publius the Second, that's you.

Where are you?

The world awaits your proposals.

So, I ended that second book and then I end on this

section of the, of the including lecture with a challenge to you.

And, and the challenge is to start to think not just about

the future of American constitutionalism, but

frankly of the future of world constitutionalism.

[BLANK_AUDIO]

Now, there's one last thing to do, of course, before we, say goodbye.

We have to talk about the image on

the screen, that's been the tradition in this course.

I end where I started.

with, this montage put together by my friends, here at,

at, at Yale, it's a montage that as I told you

at the beginning, blends text, text of the preamble

with embodied actions in full living color, actual individuals who did things.

George Washington plays a particularly important role.

I hope this MOOC has combined actually a focus on the text, with also the focus on

embodied deeds of, of, a colorful individuals, and, groups.

This montage is partly taken from the facade, this,

the side of the National Constitution center in Philadelphia.

So one other thing, by way of advice, if you want to get,

experience more about the constitution, go

visit the National Constitution Center in Philadelphia.

They've got lots of amazing stuff.

So I wanted to sort of remind you of the, the

image that, that we began this MOOC, this massive online course with.

But I can't resist the temptation to show you one other image.

So let's see if this works here.

So, that's Hilary Clinton and that's Bill

Clinton, and they're right here in this studio.

And they are, and some of the other folks in the screen are the

crew, that are here at Yale that have helped put this together, Doug and Rick.

And so I want to, first of all, and they're

talking about MOOC's, Massive Open Online Courses, actually, in this studio.

This is a Massive Online Open Course.

And so this is a reminder to me and,

I hope, to you that, that thanks also are, are

very much due to the, to the good folks

who, on, on the crew who made this MOOC possible.

And why are they talking about MOOCs?

I mean, by the way, if you look

really, really carefully, there's a little book there.

It's this book.

It's America's Constitution: a Biography.

And believe it or not, it was hard for me to believe.

They're actually talking about this book and this

MOOC in particular and here's why they are.

Because America's

Constitution was designed to be accessible to ordinary people.

That's why it was short, so people could read it.

No property qualifications, is to see and to read the thing.

And, and this has been a course that's been

at one level, designed to be accessible to ordinary people.

No property qualifications, no, no tuition.

and, and here's why the Clinton's are interested in,

in that, and I hope all our fellow citizens are.

The constitution's project doesn't work without popular education.

This document itself was designed so ordinary people could

read it and learn about first principles of government.

The Bill of Rights was so short that people could

memorize it the way you memorize scripture or some favorite song.

So the challenge is to make the constitution,

and to make education, public education more generally accessible.

Inexpensive.

Free.

Open to all.

You know, I have the great good fortune of being here at, at Yale.

President Clinton went to, Yale Law School.

Secretary of State, Clinton went here, Yale Law School.

We all feel very privileged that we were

able to come here, and study the constitution.

But it was expensive to do so.

And information wants to be free.

This is education is too expensive, and this MOOC is part

of an experiment, a project to try to see if we can open up education and open up

some of the teachings in, in places

like Yale universities to a much broader audience.

To ideally bring down the cost of public

education, to, to make it accessible more broadly,

and this MOOC, you know if it worked at all, it worked because of, of the crew.

And I'd like to thank them, and they, and so

that's why I wanted to partly end with this picture.

But of course, this MOOC also, it doesn't work at

all unless there are folks at the other end, participating.

That's, that's you.

That's, that's we the people.

That's the only way which this MOOC idea, the idea of

public education, more generally, the

idea ultimately of constitutional self government.

Only way it works is if all sorts of people buy in.

Just take their not necessarily with money but with their time.

Take the time to actually, be at the other end of the educational experience.

So I end this lecture where I began with a, a very big thank you to

each and everyone of you for spending so much of your precious time, in this MOOC.

And and we've come to the end.

Thank you and farewell.

>> [MUSIC]

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