Noah Feldman is the Felix Frankfurter Professor of Law at Harvard University as well as a member of the American Academy of Arts and Sciences. He is a contributing writer for Bloomberg Opinion and the host of the Deep Background podcast show.
Feldman is also the author of six books including his 2017 The Three Lives of James Madison. So, like Feldman himself, our conversation was refreshingly eclectic – ranging from anti-trust law and the politics of Harvard law school to a Madisonian analysis of contemporary America.
But I began by asking Noah Feldman how he thought American democracy was holding up in the age of Donald Trump.
Hope you enjoyed this week’s episode withNoah Feldman, you can find out more about him here:
Find Noah’s Books here:
The Three Lives of James Madison- Genius, Partisan, President
Cool War - The United States, China, and the Future of Global Competition
What We Owe Iraq - War and the Ethics of Nation Building
Divided by God - America's Church-State Problem--and What We Should Do About It
Scorpions - The Battles and Triumphs of FDR's Great Supreme Court Justice
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Produced by Jason Sanderson -Podcast Tech
[00:02:07] Noah Feldman is the Felix Frankfurter Professor of Law at Harvard Law School. He is the host of deep background a new podcast about politics in the United States. He's also a Bloomberg columnist. No I want to get you on the show. To talk about the resilience or lack of resilience of American democracy right in the middle now of the Trump age where three years into the Trump presidency. Some people say that American democracy is in crisis. Some people say that it's holding up quite well. What's your take.
[00:02:41] Well the first thing I would say is that from the moment that Donald Trump was elected constitutional democracy in the US has been undergoing a stress test. You know the kind you give people of my middle aged run of life to see if they're going to have a heart attack you know you put them on the treadmill you attach the electrodes and you make them run as fast as they can so they can barely breathe. And I would say right now the democracy has a mixed record and the stress test with respect to formal institutional features that are written into the Constitution and that are regulated by the courts. I would say we've done okay. I wouldn't say if you passed with flying colors. The courts haven't been perfect by any stretch of the imagination but the formal institutions have been pretty resilient to efforts by the president to undercut them with respect though to the informal aspects of democracy the customs traditions practices that are understood by all but can't be found recorded in some particular document.
[00:03:43] And of course those things are very very important to the functioning of any democracy. We have not done very well. It turns out that it has been possible for the president of the United States to undercut pretty effectively practices and customs that have been built up over decades or even generations. So to give you a concrete example of that.
[00:04:01] The United States has worked very hard through informal means to separate criminal investigation and prosecution at the federal level from politics. It's not written into our laws in a formalized way. It's a hard one set of practices over the last half century. And yet President Trump has managed to call that very much into question to insist on the politicization of criminal investigation and prosecution. He's called into question in many people's minds the idea there is any kind of independence or objectivity in that sphere. And it will be very difficult to recreate that going forward. So in those and other instances the formal have done OK not spectacularly but they're surviving the informal have not done terribly well.
[00:04:44] Do you think that Trump is intentionally trying to undermine American democracy or does he just kind of live in a reality television show world. For him everything is about himself. Everything is determined by his narcissistic personality.
[00:05:01] It's a bit of both. I think Trump didn't begin with any coherent theory of what he was trying to do but he knew that in order to get elected he would have to be a different kind of candidate and that would involve breaking a whole series of traditional norms.
[00:05:15] And he did so and he got elected then he thought to himself Well I was elected by breaking the rules. Let's see what I can get away with as president. Let's see which rules I can get away with breaking. And so he broke formal constitutional norms as for example when he tried to withdraw funding from so-called sanctuary cities that refused to cooperate with the federal government with respect to reporting undocumented people or as he did when he enacted the first and second versions of his Muslim travel ban which I call that because he called it that in those instances he just openly flouted constitutional law and the courts said no you can't do that.
[00:05:54] And Trump seems to have taken away the lesson that he didn't lose much by breaking the rules and having the courts tell him he couldn't do it.
[00:06:00] And I think that's where he got the idea that it's actually pretty low cost to him undercutting democratic institutions because he doesn't lose the support from his base. In fact they think he's trying to do something. There's lots of discussion about him and his efforts and he likes to be in the center of potential. That's also good politics for him. And so he sort of discovered that there was some upside to be had from the undermining of democratic institutions and not much downside from his perspective. So I think he sort of happened into this set of strategies but he's continued with them. And I think he certainly doesn't care if they undercut democracy overall.
[00:06:32] You're really depressing me no Trump is supported by at least 40 maybe more percent of Americans.
[00:06:39] Are you suggesting that four maybe five out of 10 of Americans just don't care about democracy they're happy with a president who openly and flagrantly flouts the essence of the democratic institutions and norms and conventions and traditions of America.
[00:06:58] Well I think it's bad but I'm not sure it's that in exactly that way. And let me say what I mean. I'm not sure it's fair to say that Trump's core supporters are against democracy. They just have a slightly different notion of what are the crucial elements of democratic government. And it's an approach that's more focused on satisfying the popular will which is after all one part of democracy and less focused on formal legal and constitutional norms to guarantee equality. So again take the Muslim ban as a good example. I think the Trump supporters who like that ban didn't think of it primarily as unequal towards Muslims and therefore in violation of democratic principles. They probably mostly thought we're talking about excluding people from coming into the country who aren't in the country and therefore don't come within the traditional reach of the constitutional value of equality. Now is that the view that I hold of the Constitution. No. But is it a defensible view of the constitutional law and the constitutional tradition. Yeah it is a defensible view. The United States has a long tradition of discriminating against people who are outside the country when it comes to allowing them to come into the country and the courts do not have a long tradition of intervening to block that. So you know that's a good example of where in good faith one person could say Trump is violating our core constitutional values. That tends to be the view that I hold but another person in good faith who supports the president could say no this is in fulfillment of our constitutional tradition it's not a violation of it. I think it's a mistake to tar all of Trump's supporters with the brush of hating democracy or opposing democracy. They just want a democracy that's more responsive to the popular will and less constrained by institutions like courts.
[00:08:45] What about the legal minds helping Trump obviously bar the moment as the attorney general. These people if they sold their souls. Have they done some sort of Foulston deal with Trump or can they legitimately claim still to be upholding the law.
[00:09:04] It's a mix and I think there are some who have thought from the beginning that although they don't trust Trump with respect to respect for the Constitution they nevertheless wanted the judicial appointees that he would get and most people that I know who hold that view feel vindicated because he is so far appointed to very conservative Supreme Court justices and you of course such and Brett Kavanaugh.
[00:09:27] And in that case one might argue that they've sold or at least rented their souls most of the people who think that also believe that the institutions of the state are so effective that they'll hold off the president from serious or permanent violation of democratic norms like for example trying to delay elections or refuse the results of elections. And I think they're arguably correct about that. Then there are people who are really true believers who just happen to be lawyers and I know some people like that too and their view of the law seems to be very much an instrumental view that they will try to manipulate the legal institutions and rules and principles to produce the results that they think are the right ones and they like Donald Trump's approach and they like his goals and they want to interpret the law to uphold those goals and in that case you know those folks might be selling their souls but they're glad to do it. They don't see themselves as in a contradiction or involved in a betrayal. They're just soldiers fighting a battle from the legal angle you know to be very fair one has to acknowledge that there are progressive lawyers who think the same about progressive policies who think that it's appropriate to support progressive policies even if they flout traditional legal norms because it's the right thing to do and they're out of power now but they wouldn't do otherwise if they were in power. So that Norm exists on both sides. It's just that it's the Trump conservatives who actually are holding the reins right now.
[00:10:48] I do want to get onto the authoritarianism on the left. Later in our conversation but let's go back to Trump and particularly to the motor report. How does that fit in to your analysis of the resiliency of American democracy.
[00:11:04] Well the mother report has to be divided into two parts and I think without that division it's easy to lose track of what really matters there. So the first half of the mother report basically said that the investigative team had tried to figure out if the Trump campaign colluded or conspired with Russians who tried to influence the outcome of the election in favor of Hillary Clinton and concluded that they did not have evidence that would support charges of collusion or conspiracy. That's a hugely significant finding. It's hugely significant that they found what we already knew namely the Russians were trying to affect the election. We shouldn't understate the importance of that but it's also very important that ultimately there was not compelling evidence or convincing evidence to show that the Trump administration actively participated. They may have knowingly benefited but they weren't part of the effort. The second half of the Muller report is the part about obstruction of justice by the president specifically obstruction that happened after Mueller was appointed that ends up being the main focus of the report and they're through a very complicated. And in my view unfortunate formulation. Mueller First said that if Trump was not guilty of a crime he would say so. And he wasn't saying so. So therefore he implied that he could not say definitively that Trump did not commit an obstruction crime. If that sounds incredibly convoluted it is incredibly convoluted. Exactly. And that's the top level analysis now from Macy's one of the top level analysis with respect to the second half of the report is that even though if you read the details there is reason to think that Trump committed obstruction. Mueller was unwilling to say so overtly. That's the top line analysis. Mueller wanted us to infer the possibility that Trump committed a crime but he didn't want to say so explicitly. And because he didn't want to say so explicitly he opened the door effectively for Trump to say I've been absolved. You know I've been vindicated. The report did not absolve him. It did not vindicate him. But he was able to say so because of Mueller's unwillingness to say we have evidence that would support the idea of an obstruction crime.
[00:13:10] But there was no smoking gun in contrast say with Nixon wasn't the correct no smoking gun of the.
[00:13:16] We have the tapes sought. And if there had been it would've been a different game. But there was substantial circumstantial evidence which is all laid out in the report suggesting that Trump for example in trying to fire Mueller which he wanted to do was obstructing the Muller investigation. So the question is why did Mueller do it this way. And what's the big picture takeaway for the nature of democracy and the short answer is that Mueller thought that it would have been completely unacceptable for our democracy to turn a blind eye if Trump colluded with Russia but because he concluded that Trump didn't collude with Russia he was willing to let it pass. And in that sense the democracy worked. It worked because the most important issue for Mueller was the question of collusion. There was an investigation. Trump didn't fire Miller and Miller found there wasn't collusion. And the democracy continues. That's a win for democracy. The trickier question is how costly was it for democracy for Mueller to hint at presidential obstruction of justice without quite saying it. And that goes to show you again in this kind of unclear Gray region that's neither black or white. We have suffered a great deal. You know it's costly for the United States that there's a report that strongly implies that the President committed crimes and nothing is going to be done about it.
[00:14:32] What about the I word going gonna happen.
[00:14:35] I mean so the thing about impeachment is that you could imagine at best at best. And I believe this will not happen a symbolic act of impeachment by the House of Representatives followed by. Acquittal of the president in the Senate. But the Democrats realistically won't do that because they generally believe the conventional wisdom is and I think it's probably correct that impeaching him symbolically in that way would just strengthen the president. The president would win in the sense that you would be acquitted by the Senate. We've know from Donald Trump that he would not be ashamed or humiliated by this. In fact he would glory in it unlike Bill Clinton who went impeached although he was acquitted was ultimately deeply damaged by it because he was ashamed. Trump would gain. And so the Democrats aren't going to take that chance. And you know the truth is that's probably a good thing now because we're entering an election season. It's taking a while to get us there but we're entering election season and under the American constitutional design the way to remove a president who is up for re-election is by voting him out of office. It's not by impeaching. Impeachment is meant to be a special remedy for extraordinary circumstances only.
[00:15:35] Let's take a step back now from the law from impeachment from Molla and look more broadly at the health of American democracy what's been the role of technology and particularly social media in the Trump page and in the undermining of democratic norms. I know you've written a lot about this in your Bloomberg column.
[00:15:56] I have a lot to say about it. And let me just say before I do answer that I have a gig advising Facebook on content governance and free expression which isn't precisely the same topic. But if I'm going to talk about social media I think it's good just to acknowledge that for the listener what does that mean by the way you have a game.
[00:16:12] You advise them you consult with them.
[00:16:14] I advise them exactly.
[00:16:16] So they pay you for your expertise.
[00:16:18] They do. So I want to just say that is by way of introduction so that no one thinks I'm too soft on social media or something like that. I would say the following. You know social media as everybody who uses it knows created new forms of human interaction that didn't exist previously. And politics has become one of the mechanisms or one of the elements of those new forms of interaction. The Internet isn't just and social media is not just sharing photos of your cat. It's also sharing political ideas stories things that one likes in countries that didn't have well-developed political public space. Sri Lanka is a good example. I think it's arguable that social media has in fact really helped increase the mechanisms of political communication. I mean I was in Tunisia shortly after the Arab Spring and the main way that people were communicating with each other to try to form new political parties organize themselves figure out what was going on was on social media. But in the United States where that was not primarily the problem where there were other vectors or mechanisms for communicating. It's been more visible to notice the ways that social media has distorted the political process. Specifically in the form of misinformation which spread very rapidly on social media and also in the form of what are sometimes called filter bubbles where ultimately I can avoid hearing the other side's messages by silencing them on my social media preferences or because the algorithms on social media feed me what they know I want to hear and that doesn't include the views from the other side. And I think those features have unquestionably been very costly to our democratic processes. And then there are the things that are strictly speaking neutral that some people really don't like. But that our transformational. And one example of that would be Donald Trump's use of Facebook in his election campaign as a mechanism for reaching hundreds and hundreds of thousands of people. Truthfully many millions of people without paying for the privilege without buying advertising in the way that traditionally a campaign would have had to have done on television and radio Trump turned Facebook into the most remarkable free megaphone in the history of American elections. And he was very effective at it much more effective than Hillary Clinton's campaign.
[00:18:33] And now if that had been Obama the left would have claimed him saying this is the first real digital president he gets social media.
[00:18:42] He understands online marketing but because it's Trump everyone's horrified and claiming that somehow the system is being rigged.
[00:18:52] I completely agree with you. This is why the medium itself in that instance is a relatively neutral medium. It was just a question of which side was clever enough to harness it. You know viewing that as a criticism is really bound up in the idea that one doesn't like the way the election came out. No I don't like the way the election came out but I don't think that in that instance it can be laid at the feet of social media or Facebook. You know I really do think that it was the extreme cleverness of Trump and of his not Trump personally but of his staffers who managed to harness this new media. One of the good outcomes here is that social media does allow candidates to reach voters without paying for it. And that's a kind of interesting phenomenon. It allows the aggregation of public political preferences and we don't really know how that's going to work out. You know when new technologies come into play and new ways of communicating come into play they tend to shake up political norms. Broadly speaking you know the United States is in a moment of populism and it's easy to forget if one is worried about the consequences of populism as certainly I am CGT forget that populism is after all the people speaking or many of the people speaking and democracy is supposed to reflect the voices of the people. So you know in our love of democracy we tend to forget that democracy is itself susceptible to large allegations of people pushing for politics and ideas that we ourselves might really really dislike or distrust know some element of populism is always present in democracy. And what happens in those moments when populism is rising is that elites you know and since I teach in a university I count as an elite for sure.
[00:20:32] Well certainly at Harvard I think is the elite of the elite.
[00:20:35] You know let's get very nervous and they say oh my goodness this is democracy gone too far. What about the limits. And you know there should be some limits. There should be rights need to be protected and equality needs to be protected. But some element of the popular will is inevitable in a democracy.
[00:20:49] No there is though a clear shift in the Zeit Geist within the United States in terms of regulating tag. Last week there were developments both in a regulatory oversight of Amazon and Google through FTC and other federal institutions. What is your take on the likelihood of a more sort of regulatory regime on big tech particularly Amazon and Google. Let's say over the next 18 months in Washington D.C. between now and the end at least of the first Trump term.
[00:21:23] So here it's important to distinguish two different things. The Trump administration is signaling that it will take a close look through the Department of Justice and the Federal Trade Commission which are the two main entities that do antitrust investigation that they'll take a close look at the big tech companies. And that means that the tech companies will have to be careful and on their game and it's not inconceivable that the Trump administration might find some violations of antitrust law and punish the big tech companies for that or require them to change the way they they do things. And that is coming out of a political context where the Trump administration very cleverly is trying to preempt the argument from Democrats on the left comes from Elizabeth Warren and others who are really copying her that big tech is potentially an enemy. So I say this is the Trump administration co opting what was a left wing argument and doing it rather cleverly by opening these investigations. Those restrictions though are likely to be of small to medium size on the big giants. We're not talking about at this stage existential threats to those companies that would come for example from breaking them up. And the reason for that is that as antitrust law is designed in the US it's got well understood principles that basically stand for the idea that a company is only violating the antitrust laws if it's doing something that harms the consumer being a monopoly doesn't violate the antitrust laws. Charging high prices doesn't violate the antitrust laws giving away stuff for free doesn't necessarily violate the antitrust laws would violate antitrust laws is taking action that harms consumers ultimately. And so unless the U.S. changes its regime away from the idea that we're looking at consumer harm and towards the idea that bigness is itself a problem or that being a monopolist is itself a problem. What you're going to see is some limited constraints on these big tech companies but not major earthshaking transformational regulation. And I think the Trump organization is not talking about anything on that scale.
[00:23:32] Now what do you think that we need to rethink antitrust in the Age of Amazon and Google.
[00:23:38] I think it's worthwhile to make sure that our traditional antitrust principles are still applicable. That they haven't been completely gamed by the system. So if for example antitrust is traditionally looked at short and medium term pricing to see if prices are going up and if Amazon continues to charge less for many goods then competitors do then you can imagine that we could miss the fact that in the long run Amazon intends to put all of its competition out of business and then charge exorbitant prices. So you need to make sure you're looking at the long haul and not just at the short haul. That's not a fundamental change in the regime it's just reminding ourselves that if you're Amazon and you have an enormous unimaginably large warchest of capital you can probably play the long game. So we have to make sure that our antitrust laws are also playing the long game. That's just good common sense. With respect to radically transforming antitrust so that we think that bigness is itself the problem. I'm still very much on the fence. I remain to be convinced that the changes needed. And the reason is that those who are arguing that bigness is bad haven't yet been able to sharply explain why that's bad for ordinary people why it is that a reduction in competitive forces which of course does happen when a company gets extraordinarily large is actually bad for individuals because there are some businesses that get very large that can nevertheless deliver goods and even services at prices that are extremely good prices. I'm open to the idea that maybe we should consider bigness is inherently bad. But I am still attached to the traditional idea that antitrust laws should be about serving the interests of consumers.
[00:25:26] Ultimately isn't it fairly self-evident the consequences of bigness at least in terms of Amazon.
[00:25:32] Any American just needs to go down to their downtown and see its decimation some of the consequences of bigness self evident.
[00:25:40] I agree that new business models have that effect. But it's important to remember that when the Sears Roebuck Company began to sell products nationally through its catalog not an online catalog but a good old fashioned you know paper catalog and then you wrote away to Sears and then they would send you what you wanted. That also had a significant negative effect on local businesses. Similarly when the big box stores the Wal-Mart and the Costco's and the targets and the Ikea's began to predominate in American cities not so much in the cities as on the periphery of the cities that also had a devastating effect on the downtowns. So waves of innovation in retail have transformative effects on markets and they cause creative destruction in the business world. And that's traditionally been thought of as part of the cycle of capital. I mean we regret the loss of the small shops.
[00:26:38] I am very much regret the loss of the small shops where I'm able I tend to prefer those small shops but I also recognize that I'm doing that for the privilege of being able to afford to pay a little bit more for my loaf of bread to pay a little bit more in Cambridge Massachusetts and Cambridge Massachusetts where it's not expensive at all.
[00:26:53] I mean you know if I go to my corner shop which I try to do as often as I can I definitely pay almost twice as much for a quart of milk as I would if I went to the only slightly further away big box grocery store I ordered it from Amazon. I think it would be cheaper still yet again. So I recognized that the privilege of paying more is a privilege that goes with the desire to live in a place with shops at a walking distance. But historically in the US we haven't seen those kinds of business innovations which deliver products at cheaper prices. As wrong we've seen them as desirable and as in some sense increasing consumer welfare. Even though I fully acknowledge it's completely correct to say. That that has consequences and it closes businesses and it can be bad for people who own small businesses and small shops without a doubt.
[00:27:42] Aside from the exorbitant price of milk in Cambridge Massachusetts no what else is going on. What are the crazy things in Harvard Law School.
[00:27:52] The latest story of course is that the Dean or one of the deans of the law school professor Ronald Sullivan Junior who happened to be working for Harvey Weinstein he's been removed as the dean of the law school because of his affiliation with Weinstein.
[00:28:08] Can I just correct those facts a little bit.
[00:28:10] So Professor Sullivan was not a dean at Harvard Law School. He was what's called faculty dean of one of the Harvard houses which is an undergraduate house that houses at Harvard are a bit like the colleges at Oxford or Cambridge. They're a large dormitory where people live and being the faculty dean which is the new name for what used to be called the master of the house is being the head of that particular sub part of the university. When the university removed Professor Sullivan from that position as faculty dean it didn't say that it was doing it because of his work for Wainstein. But it did come in the aftermath of very strong student protest of Professor Sullivan because of his work with Harvey once. Now I should say I was one of 50 odd Harvard law professors who signed a letter to The Boston Globe an open letter. Well before this happened saying that we strongly supported dress herself into academic freedom and his right to represent whomever he chooses and that the university should not remove him from his position by virtue of who he's represented. What's complicated of course to the University says that's not why they did it. And yet the context strongly suggests that that did play a role in his removal. And here what I say is you I stand very much by what the letter said that I also liked this resolved and very much. I think it's very important that law school professors be able to represent whomever they want and I wish that students could see that providing a defense for even extremely nasty people of which by all accounts Harvey Weinstein is one is part of the requirements of the legal system. That said it's also true that being a faculty dean in one of the Harvard houses is a position of administrative importance and responsibility you are part of the university's administration. You're not quite the same as an ordinary professor. So it's not quite the same thing as if I represented an unpopular client. There is an argument to be made that there's some tension between the role of being the faculty representative with three or four hundred students speaking on behalf of the faculty implementing various rules and regulations including the anti sex harassment rules and regulations and also representing somebody who has become nationally symbolic for his acts of sexual harassment. So you know it's a complicated issue albeit one of potentially great importance.
[00:30:21] But again standing back from this some of the smartest people supposedly smartest people in the country people who go on to become senators and presidents of America go to Harvard Law School it tends to have a leftist bias. Is there something wrong here in terms of.
[00:30:37] Toleration and openness the same kind of problems that exist on the right Harvard Law School is lucky enough to have some very outspoken and prominent conservatives on our faculty pressure.
[00:30:48] Jack Goldsmith a colleague and a hero of mine.
[00:30:50] Fraser Adrian mule who's very much to the right and is very outspoken you can follow him on Twitter and you'll be struck and impressed by his conservative his views are we also however do have mainstream sort of left liberal consensus on the faculty on many things and we have some members are also genuine lefties not liberals but genuine leftists.
[00:31:08] So I think there is a fear and a danger a genuine danger in the law school as anywhere else in the University of too many people agreeing on too many things of having insufficient disagreement and debate. And of course the whole point of university is to produce truth.
[00:31:26] Harvard's motto is very tough which means truth. And unless you have multiple views represented and many people arguing all sides of an issue the odds of getting to the truth are very very much reduced. So it is a crucial part of our.
[00:31:38] Pedagogical task at Harvard Law School for our students to make sure that they are not afraid to stand up for any view of any kind.
[00:31:46] And you know I try to use tools to make that happen in my classroom. I often represent views that I don't myself hold. To make sure they are discussed and I train my students who after all are going to be lawyers.
[00:31:57] That it's part of their training to be able to represent and strongly speak on behalf of use that they themselves might deeply disagree with. Not to say well we're going to exclude this because we think it's wrong. That would be the exact opposite of good training for a lawyer and I think also the opposite of good training for a thinking person.
[00:32:12] And the kids haven't tried to throw you out.
[00:32:14] Not yet. But you know each year you ask yourself Will they come after me this year. But thus far I've been fortunate in that regard.
[00:32:20] So now let's go from Harvard into the world.
[00:32:23] You've talked exclusively about America but I know you're very interested in the global context of the crisis of democracy. How exceptional.
[00:32:33] Is what's happening in America in the world. Or is the Trump phenomenon really. No different from your gun in Turkey or Putin in Russia or do I stay in the Philippines or bust scenario in Brazil or the developments of a liberal democracy in Central Europe.
[00:32:52] I think it's fair to say that there is a meaningful family resemblance between all of those populist typically right of center movements. They all are nationalist in their orientation. They're all populist. They all criticize elites. They all feature leaders who tilt greater or lesser degrees are interested in taking advantage of one aspect of democracy namely the mobilization of the popular will but are not very interested in the other side of democracy which is the restriction and limitation of government action by constitutional norms of liberty and of equality. They obviously all do that to different degrees and in different ways and in that sense they differ but there's unquestionably a family resemblance here and I think it's fair to say that liberal democracy or the consensus in favor of liberal democracy that we thought existed after the fall of the Soviet Union is very much in doubt is very much in crisis. And in this context I would mention the rise of China as an extremely important component. You know at the end of the Cold War there was a tendency in the West to kind of triumphalist tendency to say well liberal democracy and capitalism have won and they go together. But China makes it very clear that that was wrong. In fact capitalism did win over communism and China has become increasingly capitalist it's its own distinctive form of state controlled capitalism. But it's still capitalism in many ways. So capitalism won but liberal democracy didn't win. And what's more China has shown that a country can grow its economy tremendously without liberalizing itself at all on the political front while maintaining control of a handful of leaders and now a single paramount leader is a you know works for the Chinese Communist Party. So. The idea that liberal democracy was the inevitable form of government that would predominate after the Cold War just turned out to be false. And we're seeing the consequences of that right now because lots of people in lots of countries are saying we're not that interested in constitutional liberal democracy. We would be like populist democracy that's a major I would say generational challenge to the institution of constitutional democracy everywhere and experimentation around that is very risky. I mean I think one only has to mention Brexit in this context. I mean Brexit was of course totally democratic because it was enacted rather by a referendum. But Great Britain doesn't have a long tradition of governing by referendum in fact it has a vision of governing by parliamentary democracy. It's the oldest continuous parliamentary democracy on earth and parliamentary democracy traditionally was not done by referendum. So there one adopted mechanism of populism namely the referendum and then it has consequences that are very hard for many people to stomach. So that's an example to my mind of experimentation around the institutions of liberal democracy and least to my mind one that has not worked terribly well thus far I think even supporters are Brexit would probably can see it the whole process hasn't worked so well so far. So.
[00:35:45] My big picture takeaway is that liberal democracy will have to start fighting up for itself and have to start setting up for itself. It's going to have to start.
[00:35:53] Showing that it's capable of succeeding. It's going to have to survive the challenges that it faces. And then it's going to have to improve itself.
[00:36:00] Rather than resting on its laurels and thinking that's an inevitable model of government that every rational person and every rational country would adopt. It isn't. There are plenty of rational people who don't want it and it's going to have to make an argument for itself or it will go the way of all old fashioned political ideas and will be superseded by new ones.
[00:36:19] So that's stirring defense or stirring reminder to people who believe in representative democracy that we need to rethink it and re articulate why it's so important.
[00:36:31] In closing I know you're the author of a best selling book The Three Lives of James Madison genius partisan President Madison was amongst the most articulate and persuasive supporters of representative democracy. You're also one of the great authorities on Madison to questions to end with then no firstly what would Madison think if he suddenly reappeared in 2019.
[00:36:58] And secondly why should we be rereading and rethinking Madison how can he help us navigate this contemporary crisis of representative democracy in Madison would be very concerned if he suddenly materialized today that some of the things that he warned against particularly unfettered Democratic Action where celebrities get elected directly by the people was actually coming to pass. He worried very much as in many of his contemporaries that too much direct democracy without the training of the public in the values of what he called Republican virtue would lead the country astray. And one of the most important things that he said in his entire body of writing was that democracy ultimately or Republicanism rests on the idea that the people have virtue and if the people don't have virtue there is no solution for that. Democracy will fail. And so you know he would look around and say well how's your virtue doing. Ladies and gentlemen you know how virtuous is your public need to spend more or five minutes on Twitter.
[00:38:05] Well what do you think.
[00:38:05] Well I don't know anything about Twitter. Twitter is so extraordinarily vast with so many different sub parts. Doubtless he could find some nice reasonable people on Twitter who would follow him but he wouldn't have very many followers on Twitter you know Madison was not a great public speaker. You didn't express himself in a little pithy formulas. He liked to express himself at the length of maybe two or three thousand words it would not be a natural medium for him. That's it. Thomas Jefferson would have do great on Twitter. So Madison would be worried that in a country where we think that one hundred and eighty characters are the way to express your political values we're not going to successfully run a republic. The reason that it's so important to go back to Madison is that Madison also had ideas. About how to make a democracy actually function namely that he believed. That different impulses in the country should be balanced against each other. He thought that the different parts of a government in counterpoint with each other could save the government from falling into excess. And so if you looked at our country today he would say Congress what has become of you. He imagined Congress as the most powerful of the branches of government. The core of representative democracy and he would think that Congress needed to vastly enhance its powers relative to the presidency and stand up to the president and advocate for and indeed pass laws that limit the president. And he would very very much think that the core of the safety of the Republic lay in the people and that the people should express themselves in Congress not in a presidential referendum which elect one person. He did not want the president to be an elected monarch. He wanted the present to be weaker than the Congress. And we've come very very far away from that. And Madison could set us on the slow painful process of trying to rein in the power of an all powerful president regardless of views. By the way regardless of right left or center the presidency has become much too powerful and Madison would direct us and going back to Madison does direct us to recognizing that as the core of our problems.
[00:40:03] And apart from your book for those of our listeners who aren't familiar with Madison's writing what should they read a brief introduction to his thinking. You can go online and type in Federalist Paper Number 10 and you can read a short essay that lays out the essence of Madison's theory of balanced government still reads well.
[00:40:24] Probably a four minute read. Yet much of the core of Madison's teaching right there.
[00:40:28] There you have it. The expertise of the Harvard Law School professor.
[00:40:32] Noah Feldman for free no I thank you so much. My great pleasure thank you for having me.