Harvard Law School Election Law Series: A talk by Charles Fried

Summary

Highlights

• Charles Fried explores the connection between democracy and elections, emphasizing the role of elections as democracy's festival. 🎊
• Fried highlights the paradox of elections leading to undemocratic outcomes, as shown by historical examples like 1933 Germany. ⏳
• Election laws, though seemingly contradictory, provide essential guidelines that help maintain democratic integrity. 📜
• Audience members engage in lively discussions about global electoral systems and potential improvements for U.S. elections. 💬
• The talk prompts reflection on the U.S. Constitution's minimal guidance on democracy, encouraging a reevaluation of election laws. 📚

Key Takeaways

• Democracy thrives on elections, which act as its festival, celebrating self-governance by the people for the people. 🎉
• Electoral laws aren't contradictions but necessary frameworks, though they must strike a fine balance to avoid stifling democracy. ⚖️
• Historical contexts, like the rise of Hitler, illustrate how elections can paradoxically lead to undemocratic outcomes. 🤯
• Elections are complex systems influenced by many regulations, questioning whom and how we elect leaders. 🔄
• Comparative insights from other countries' electoral systems can offer valuable lessons for enhancing U.S. democracy. 🌏

Overview

Chapters

• 00:00 - 02:30: Introduction and Context The chapter serves as an introductory lecture for a series that will continue throughout the semester. The speaker apologizes for their voice but urges the audience to overlook it, indicating that they are unwell.
• 02:30 - 07:40: Defining Democracy and Elections The chapter introduces the topic of democracy and elections. It sets the stage for a series of discussions led by various experts who will share their firm convictions on the subjects. The speaker indicates that the session will be interactive, emphasizing participants' involvement in the discussion.
• 07:40 - 15:00: Historical Perspectives and Founding Documents This chapter delves into the historical perspectives and foundational documents related to elections, emphasizing their evolving nature and significance. The narrative kicks off with an examination of how election seasons are starting earlier, becoming a focal point of democratic practice often described as a 'Festival of Democracy'. Through this lens, the chapter aims to clarify any misunderstandings while stressing the importance of elections within a democratic society.
• 15:00 - 24:00: Election Laws and Constitutional Provisions This chapter discusses the integral role elections play in a democratic system. It highlights the symbolic and functional significance of elections, suggesting that democracy does not exist without them. Additionally, it touches on different forms of democratic participation, noting that in a small community, direct participation in decision-making by all members is possible.
• 24:00 - 37:00: Democratic Challenges and Government Oversight The chapter addresses the complex relationship between democratic processes and the potential for those processes to lead to undemocratic outcomes. It cites the historical example of the 1933 election in Germany, where a seemingly democratic election resulted in Adolf Hitler attaining Supreme authoritarian power. The chapter suggests that while elections can be a facet of democracy, they can also paradoxically lead to the dismantling or complete abandonment of democratic principles.
• 37:00 - 52:42: Comparative Analysis of Election Systems The chapter discusses the concept of democracy as self-government, referencing Abraham Lincoln's notion of 'government of the people, by the people, for the people.' It highlights the connection between Lincoln's words and the principles outlined in the French Declaration of the Rights of Man and of the Citizen, particularly in the context of post-revolutionary France.
• 52:42 - 58:00: Audience Engagement and Questions The chapter discusses the influence of the American Declaration of Independence and the Virginia Declaration of Rights on certain authors. It emphasizes the belief that law should be an expression of the general will, as argued by Rousseau. Furthermore, it asserts that every citizen has the right to participate in the law's foundation, either personally or through representation.

Harvard Law School Election Law Series: A talk by Charles Fried Transcription

• 00:00 - 00:30 hello uh this is very much an introductory and preliminary lecture in a series that hey excuse my voice and I'm in a bad way but ignore it uh a a u series that's going to go on throughout this semester and into the
• 00:30 - 01:00 spring uh and there'll be various experts with lots of uh firm convictions talking to you uh I want to introduce the subjects and I'm going to leave quite a lot of time for uh your participation in part to hear
• 01:00 - 01:30 what you would like to uh have clarified what you think needs to be better understood uh elections this is what we this we're getting into the election season it starts earlier and earlier uh elections are what may be called the Festival of democracy in which it
• 01:30 - 02:00 announces celebrates and enacts itself no democracy without elections the connection is not quite one of the identity in a very small community there may be Universal direct participation by all those who count as members in all significant decisions and it works the other way as
• 02:00 - 02:30 in the most famous instance of the 1933 election that promoted Hitler to Supreme and dictatorial Authority in Germany an election though perhaps Democratic in itself may lead directly to and embody the choice of the complete abandonment of democracy so as to what democracy is is
• 02:30 - 03:00 let us start with Lincoln's words government of the People by the people for the people this connects with though it's not quite identical with the notion that democracy is self-government this is nicely captured in the first provision of the French Declaration of the rights of man and of the citizen right after the revolution
• 03:00 - 03:30 the authors of which were greatly influenced by the American Declaration of Independence and the Virginia Declaration of Rights this is what they wrote law is the expression of the general will Russo every citizen has a right to participate personally or through his representative in its foundation and then later on uh the
• 03:30 - 04:00 Declaration goes on to say all citizens have the right to decide either personally or by their representatives as to the necessity of the public contribution taxes and to Grant this freely that all means all is explicit in the Declaration of independence's proclamation as a
• 04:00 - 04:30 self-evident truth that all men are created equal once again I turned to Lincoln who in his debate with Douglas in 1858 issued this challenge I adhere to the Declaration of Independence if judge Douglas and his friends are not willing to stand by it let them come up and amend it let them make it read that all men are created
• 04:30 - 05:00 equal except Negroes let us have it decided whether the Declaration of Independence in this blessed year of 1858 shall be thus amended it is however a common place that in a society of any size and complexity the first option direct Universal participatory democracy is imp practicable and
• 05:00 - 05:30 Universal plebo democracy is practicable only on special constitutional occasions for the rest we are inevitably REM remitted to representative democracy and elections are the occasions on which we choose those Representatives it is through them that we are governed by represent resentatives freely chosen by us all so
• 05:30 - 06:00 that we are governed by ourselves self-government everyone who exercises authority over us ultimately traces that authority to some Act of our chosen representatives and that goes for judges of course that is why the Massachusetts declaration of rights in articles five
• 06:00 - 06:30 and six written uh in uh 1780 by John Adams in his characteristically florid style States all power residing originally in the people and being derived from them several magistrates and offices of government vested with authority whether legislative executive or judicial are
• 06:30 - 07:00 their substitutes and agents and are at all times accountable to them no man nor Corporation or Association of men have any other title to obtain advantages or particular and exclusive privileges distinct from those of the community than what arises from the consideration of services rendered to the repu and this title being in nature
• 07:00 - 07:30 neither hereditary nor transmissible to children or descendants or relations by Blood the idea of a man born a magistrate lawgiver or judge is absurd and unnatural uh John Adams uh had a son uh who was President also uh
• 07:30 - 08:00 I love this quotation in part because it is the only founding document which I know of that describes a contrary proposition as absurd uh so there you have it the connection between self-government democracy and elections and the corollary that those elections must be elections by all equally having reached that conclusion ion why are we not at the end of our
• 08:00 - 08:30 story no need for this uh lecture series why do we indeed uh need uh why do we need indeed how can there legitimately even be laws about elections election law in this Democratic Republic the subject of this yearlong
• 08:30 - 09:00 series The probing challenge has often been issued in the context of denouncing this or that particular provision of some election law the idea is that election law is almost a contradiction in terms I extrapolate from an argument that has been pressed in opposing all campaign Finance regulation in that context it has has been argued that by making rules about
• 09:00 - 09:30 who can do and say what when with and to whom and at what cost to their own and their friends pocketbooks all that current leg legislators are doing is making it harder for the people to challenge them at the polls harder to replace them campaign Finance limitations are in
• 09:30 - 10:00 truth nothing but incumbent protection schemes devised by those very same incumbents in the course of these lectures we will examine the factual basis for that claim but for the moment let's generalize it let's take it in the phrase from Tom Lara's song Anything You Can Do I can do meta to The Meta level since legislators are supposed to be
• 10:00 - 10:30 chosen by the people why should those same legislators be allowed to legislate that is to say set the rules by which we the people choose and may try to replace them what does the Constitution say about this surprisingly little starting at the beginning the
• 10:30 - 11:00 Preamble does say that this constitution is ordained and established by we the people of the United States Article 1 Section two says that the House of Representatives shall be composed of members chosen every second year by the people of the several States but who counts as the people of that state that is in part up to that
• 11:00 - 11:30 state but that state cannot set the qualifications to be different from the qualifications uh that are used for the most numerous branch of the state legislature so if there are property qualifications for voting for the state legislatures so may they be uh imposed on V voting for members of the uh House
• 11:30 - 12:00 of Representatives the Constitution thus said a minimum age 25 for for a representative requires that chosen Representatives be seven years uh citizens of the United States and an inhabitant of the state the qualification of senators after the 17th Amendment are the same
• 12:00 - 12:30 except that the minimum age is 30 and 9 years a citizen of the US in this most crucial matter therefore the Constitution doesn't not explicitly decree democracy but rather assumes what is and will certainly the case that it is referring to States all of which already have and will continue to have
• 12:30 - 13:00 functioning elected legislators that is a matter of some importance because here and at many other points the Constitution does not decree or establish but assumes the prior existence of governments those of the states all of which are assumed to have elected governments Executives and legislators whatever democracy we have is built
• 13:00 - 13:30 therefore on the platform of existing democracies the closest the Constitution comes to speaking directly to this premise is in article 4 section 4 in which the Constitution guarantees to every state a republican form of government that the guarantee is to the
• 13:30 - 14:00 State and not to the people of the state gives this Clause the flavor of a protection against violent imposition of some unelected government from within or without and the mention of invasion and domestic violence confirms this of course these presuppositions were in a sense quite correct in most instances the state governments were
• 14:00 - 14:30 more explicitly intensively and enthusiastically Democratic than the national government would be election of Judges was instituted as early as 1812 in Georgia and yet they imposed various restrictions on who shall choose their governments that today we judge undemocratic a sentiment enacted in several
• 14:30 - 15:00 amendments to the original document women were everywhere excluded as electors slaves were excluded in the slave states free persons of African descent in some states in some states property and other qualifications limited who may vote and even Democratic fa framer took this as
• 15:00 - 15:30 self-evident these pre-existing underlying State systems of democratic elections were Incorporated by refer reference by Article 1 Section 2 and the 17th Amendment Article 1 Section 4 Incorporated by reference State legisl rules of time place and manner of holding election although Court uh Congress has the power to override
• 15:30 - 16:00 them what counts as time place and manner has been the subject of some controversy and I think the legis the litigation that's going forward now in North Carolina about ballot uh about access of Voters voter ID and various other uh voter control methods will uh bring that up because there North Carolina is
• 16:00 - 16:30 exercising the constitutional right to set the time place and manner of holding elections and Congress has not but is being urged by many of the candidates to override such choices as for instance with voter ID finally the first amendments guarantee a freedom of speech spech press assembly and petition sets
• 16:30 - 17:00 important constraints on the authority of legislatur federal and after the Civil War state to restrict the people in elections the 14th Amendment guarant 14th amendments guarantee of due process and equal protection and the 15th amendments guarantee that the right to vote shall not be abridged on account of
• 17:00 - 17:30 race uh the 19th Amendment adds sex the 24th adds failure to pay poll or other tax tax and the 26 adds age that is to say citizens over 18 these constitutional Provisions impose important constraints on the authority of government to regulate elections but a great deal of authority
• 17:30 - 18:00 is left so the challenge raised in respect to campaign Finance regulation and now generalized to all kinds of regulations remains to be answered if government is by the people what justifies any regulation by the government of the people when they choose their government if if we follow out the implication I might say the
• 18:00 - 18:30 innuendo of that challenge we arrive at the conclusion that the People's Choice of their government must be completely unconstrained by that government which after all is wholly dependent on them and which they are choosing and that conclusion of course in John Adams's words would be abs ABD what would it even mean for an
• 18:30 - 19:00 election not to be governed by any law at all who would get to vote children why not but would their parents get to vote their ballots are certain classes of people disqualified for instance ex-convicts people presently in prison some of these qualifications seem self-evident others are
• 19:00 - 19:30 controversial but they all imply a theory of democracy why for instance did women count in the census but before 1920 did not have the constitutional right to vote who gets to go on the ballot how many names are there to be on the ballot how do you get on the
• 19:30 - 20:00 ballot what counts as winning uh by and large we have what's called a first past the post system where whoever gets the most votes even though it's only a plur plurality ask Bill Clinton uh gets to win in some states and in some situations that isn't so and the two uh top candidates have to
• 20:00 - 20:30 endure uh a runoff but none of that is uh recognized by the Constitution that's all subject to law to laws made by the legislature on what theory if choosing members of a representative body not just a single leader how are the votes distributed single member or multi member
• 20:30 - 21:00 districts how are these districts to be drawn here we get the issues of gerrymander all these matters the Constitution leaves open and thus open to rules later to be made but by whom who else but the legislator themselves then there are the questions about organizing the actual election should the balloting be on one day or
• 21:00 - 21:30 stretched out over a longer or shorter time how should the candidates Finance their campaigns should they be private or public financing if public financing who gets how much for what if private are there any limits if limits how much on whom For What and once we have elected A
• 21:30 - 22:00 legislature what access should citizens have to it should contact with legislators be similarly regulated this is the regulation of lobbying and it is related to fundraising think for a minute why lobbyists as bagmen uh each of these questions has received received multiple answers
• 22:00 - 22:30 across this country over time and among developed democracies some of them are implicated in sharply contested Court battles just now campaign Finance certainly many will be discussed in the other lectures in this series but there's a general Point think of the general idea of a democracy and Democratic
• 22:30 - 23:00 elections I hope I have shown that this is a very vague and insubstantial notion a kind of fog of possibility which must be brought into focus by a myriad of concrete specific choices and institutions it is like a hazy unfocused
• 23:00 - 23:30 cloud of indeterminate colors and indefinite shapes the choices that must be made are like the twist of the lens that brings the vague Cloud into focus with images resolving into sharper forms but the metaphor is faulty in this respect the vague out of out of focus image can be brought into many
• 23:30 - 24:00 possible sharper images and however you choose to bring one issue into Focus say the definition of possible voters or the establishment of who and how many candidates there are to be on the ballot the way in which all the other open questions must be brought into Focus will change so if you arrange the voters one way the possible forms of legislature
• 24:00 - 24:30 though not necessarily fixed will present a narrower range of possibilities which must themselves be brought into focus and these will rearrange other choices and perhaps require adjusting previously chosen electoral shapes in this respect it is like constitutional interpretation generally in the 20s and 30s of the last century we had a newly focused conception of
• 24:30 - 25:00 freedom of speech when that concept was enlarged to include Motion Pictures and then sexually explicit material the concept though enlarged in one sense required further refinements similarly with the inclusion of speech that would previously have been unprotected as either defamatory or merely
• 25:00 - 25:30 commercial the earlier simple clear and present danger test would not do because it did not fit and so it goes in respect to election law and the concept of democracy as well we are engaged in viken Stein's me metaphor in rebuilding the vessel of our democracy while we are at sea well
• 25:30 - 26:00 now uh I'm going to sit down we've got uh microphones and let's hear from you oh come on this is Harvard Law School people aren't shy here
• 26:00 - 26:30 yes good good for you so obviously we were talking mostly about the American model but uh other nations clearly do different things some Nations do have set limits to um how much they finance a campaign and have different election laws do you think that there's a model that's preferable to the United States or do you think that there's anything we can take from these other
• 26:30 - 27:00 countries could you could you bring that to bear on a little more for me um I'm trying to think of good examples but I can't think of any I just know that um some different countries like India just had one of the largest Democratic elections in the world well the largest in world history um and they kind of had an open more open process than what we have instead of the the delegates and everything that we have um
• 27:00 - 27:30 so I just wondering if like there's any examples that we see throughout the world that might be like preferable to some of the models we have in yeah well that's a very that's a very important part of uh this inquiry although I don't believe that any of the speakers that have been lined up except maybe professor anel laber in the second semester is going to engage in that
• 27:30 - 28:00 comparative uh discussion I know in my seminar on this subject I will uh because uh it's really very important on campaign Finance the US is a complete outlier uh and uh it's very interesting to see what uh what happens in other countries although do not get the impression that because we are an outlier uh
• 28:00 - 28:30 therefore uh the other countries have uh beautiful systems uh I I think of the fact that uh Jac Shaq uh was I believe criminally prosecuted for campaign Finance uh violations uh sarosi investigated for money that he uh collected from the
• 28:30 - 29:00 richest woman in France who is the ays to the L'Oreal Fortune uh Helmut Cole who is really the uh hero of modern Germany because he uh affected the reunification of the East and West uh was forced out of office and really shamed because of campaign Finance violations any number of British
• 29:00 - 29:30 politicians have run a foul of campaign Finance laws so you know we are not uh we may not be better than anybody but we're not worse uh and it's well worth looking at this in a uh in a comparative perspective ah good the ice is broken you really ought to be congratulated [Applause]
• 29:30 - 30:00 um you mentioned the election of Hitler where a democratic group uh makes a decision that makes the group less Democratic for the future uh do you think that that's a legitimately Democratic choice that a group of people can make or do you think that it's inherently undemocratic for a group to um remove their their ability to make decisions well that's a that's a
• 30:00 - 30:30 deep question uh it's a little bit like the question whether a constitutional amendment can be unconstitutional uh which in our case only two can there are only two limitations one of them is no longer in effect the other uh is depriving any state of its equal representation in the Senate without its
• 30:30 - 31:00 consent that is unamendable uh but can you have it's a little bit like uh Mill asking John Stewart Mill asking whether it is a proper exercise of Liberty to sell yourself into slavery uh is it undemocratic well is the notion of democracy a normative
• 31:00 - 31:30 notion or is it simply a definitional thing and if the definition is any choice made by a majority however constituted of the people then the answer is yeah that's a that can be Democratic if it's normative if the idea of democratic is somehow not just a description but a uh uh badge of honor then that decision that kind of a
• 31:30 - 32:00 decision does not Merit the badge of honor uh now uh what can we say about that uh you know I think you and I uh tend towards the second but that's a legitimate subject of inquiry and furthermore if we admit the
• 32:00 - 32:30 possibility that a democratic vote can in this sense be undemocratic uh who decides that that is the case is that to be voted on democratically uh you know it's an interesting thing and uh somehow one doesn't hear about it very much we have three branches of government the
• 32:30 - 33:00 legislative the executive and the Judiciary and somehow it is thought well yeah but that can be a question for the Judiciary interestingly enough there was a constitution uh it didn't most unfortunately it was not in uh uh in force for very long but it was uh established by a very great man son uh after in the establishment of the
• 33:00 - 33:30 first Chinese Republic and that Constitution had five branches legislative uh executive uh judicial examination branch and election Branch the examination branch is very interesting going back through to confusion times the uh Civil Service
• 33:30 - 34:00 which was very important in China was chosen by competitive examinations mainly knowledge of the Chinese Classics and so on but competitive examinations and therefore the civil servants were usually enormously learned Scholars often poets and Painters and so on so forth well who would be setting
• 34:00 - 34:30 those examinations not the yahoos in the legislative branch there was a examination branch and then the election branch which is an interesting thing that there is a separate branch of government that uh controls the elections now you know there is the problem of the infinite regret there but at least it
• 34:30 - 35:00 recognizes the difficulty of having the same legislature that is being elected determine the rules under which it was elected but that's a piece of Arcana uh interesting enough and surprise your con law teacher with it sometime
• 35:00 - 35:30 uh thanks uh so like given how little the Constitution actually says about election law do you think the Judiciary is the proper you know like venue for pursuing election reform like if you look at the Warren Courts re apportionment cases like prescribing exact numerical equivalency between districts given how little the Constitution actually says about how to do Fair election shouldn't that be something left up to the legislature well there is a lot of
• 35:30 - 36:00 legislation uh a very important uh body of legislation was enacted in 1971 and then uh importantly beefed up in 1974 uh we might call that's the Federal Election Commission act uh and it is a a monument to Richard
• 36:00 - 36:30 Nixon uh and that was a very stringent set of controls the Supreme Court has been busily engaged in dismantling it uh citizens united is a dismantling of it Buckley and valo to some extent dismantles uh the 19374 legislation uh a uh
• 36:30 - 37:00 provision uh which uh I sought to defend in the Supreme Court and what was one of my many Supreme Court defeats McCutchen which had a limit on the overall money that an individual can give uh to the uh to all federal C candidates that's been there since 1974 Supreme Court said that's un constitutional just two years
• 37:00 - 37:30 ago 5 to four uh so sure there's room for legislation uh what the court will allow is an important question uh Professor leig uh as you surely all know uh has uh an agenda which consists of nothing
• 37:30 - 38:00 but reform on these areas reform on campaign Finance uh and carefully designed not to uh run uh into any present Supreme Court decisions although you know if it looks like it's too effective they might catch up with him uh uh the uh there there's that he has very important lobbying
• 38:00 - 38:30 reforms and he has uh reforms of C ballot access which as I cited to you the Constitution specifically provides unless the Supreme Court catches up to him uh uh and also he would reform uh the uh first pass the post system all
• 38:30 - 39:00 of which seems to be uh within the scope of congress's power but with this supreme court you never can tell it does seem it does seem that there are at least two justices and on some occasions fine who really think that any regulation of
• 39:00 - 39:30 Elections is illegitimate even though I think that proposition carried to its logical conclusion is you know merits John Adams's sober K is absurd uh so that's uh that's my answer and it's a very good question because it's before us and that that's what uh this election law
• 39:30 - 40:00 series uh is going to be addressing I might just mention who some of the people talking will be uh uh on the 9th of October Trevor Potter who was a uh chairman of the Federal Election Commission uh and my co- losing co- litigant in the McCutchen case uh is going to be talking about I
• 40:00 - 40:30 don't know what but he is uh he is uh head of something called The Campaign Legal Center and he's in he's into it everywhere legislative leg litigation and so on that'll be very interesting John coat whom you all know John coats uh will be talking about uh the use of the First Amendment
• 40:30 - 41:00 as a way to uh prevent regulations which should be allowed and particularly he objects to Citizens United and he knows more about corporate law than any of us uh Professor tribe on November 9 and Professor elhag has a very interesting public Choice Theory all of his own which bring
• 41:00 - 41:30 you bring you a computer and follow it uh so these questions are really very much up in the air and and and worth considering they have not been resolved uh it's very interesting what leig is doing is he's saying everything else depends on it so I'm running for president uh he doesn't have as good a chance as
• 41:30 - 42:00 Donald Trump I'm running for president just to focus this issue and he will focus the issue I read just today that H uh that Hillary Clinton has come out with a lot of less like proposals and we will be hearing it from others so stay
• 42:00 - 42:30 tuned ah yes thank hi is that on great um there's loads of things I'd like to say about campaign Finance because um I've worked on a few elections in the UK but I thought I'd actually change the subject um I just wondered like are there some positions that actually shouldn't be elected like judges coming from the UK it's very weird to see judges being elected and also in the UK you know over 50% of our
• 42:30 - 43:00 legislature is unelected and there are some good arguments in favor of that because they don't have to kind of throw themselves to the mercy of the public every five years and sometimes they show a bit more leadership than the elected side uh that's a little abstract can you give me an example of how that would work unelected people yeah well unelected people unelect Ed people who would do what oh so in the UK you have the House of Commons which is
• 43:00 - 43:30 all elected and then you have the House of Lords which is entirely unelected it used to be hereditary but now it mostly isn't um and they play a major part in the legislative process is that a system that exists somewhere in England uh well how does it work tell us so either side of the legislature can propose a law um and in most circumstances the unelected side
• 43:30 - 44:00 can override oh you're worrying about the House of Lords yeah but I'm saying oh House of Lords that's that's just a tourist pageant these days it used to I couldn't disagree more and and and and a way of paying off uh uh superannuated politicians uh the uh I mean they I disagree that used to be and in fact our
• 44:00 - 44:30 Senate was supposed to be kind of a House of Lords uh well for the longest time I forget when it was the House of Lords could only delay and now they can't even do that I mean they're really it's a it's more or less uh a body where they can comment on and the
• 44:30 - 45:00 comment sometimes uh sometimes reflects public opinion and makes the the actual operative house think again uh now you have a similar situation in a number of countries for instance in France and Italy you have a senate and the Senators are uh some of them are elected
• 45:00 - 45:30 but some of them are former Prime Ministers uh uh sort of appointed politicians and they too get to comment and you know may may be able to hold things up but the Lords can initiate laws who can in the Lords house Lords they can initiate laws they they can propose
• 45:30 - 46:00 laws uh it needs the House of Commons to to enact them doesn't it well on one argument yeah but similarly the House of Commons can't pass a law without the Lords well without that's not quite true because if the House of Lords does not give its consent and is stubborn on that subject it can be ignored he done it three times in the last 100 years I I beg pardon it's done it three times in
• 46:00 - 46:30 the last 100 years or maybe twice well that's because they're damn careful not to do it they know perfectly well that if they overdid it they would be totally eliminated and what they really fear is that their $200 a day allowances would be removed uh no I don't I I I I I think the House of Lords is uh you know gilbertt and Sullivan uh uh
• 46:30 - 47:00 the when Wellington beat bonapart as any child can tell the House of Lords throughout the war did nothing in particular and did it very well uh well that's the uh you know anyone else ah yes good
• 47:00 - 47:30 I can't stay sitting I they got to get on maybe just following on from the previous question is there a sound normative basis for having a branch of a branch of the legislature not being elected is there a sound basis yes I mean I personally disagree with the Lords but is there is there sort of from a democ like the House of Lords uh well I don't know I can't think what it is is I mean how is it chosen the
• 47:30 - 48:00 House of Lords initially was hereditary now there's a really unsound basis right uh uh except of course uh it was a sound basis in the sense that those people also owned a large part of the land and uh but uh yeah I make the case I I I can't understand it well the case that is made I'm not saying I agree with it but the case that is made is that if
• 48:00 - 48:30 you're not elected you aren't subject to popular opinion swings as much the argument against it well yes of course that's also the argument for and against it which is why you balanced them out and have both so you have one branch which is always susceptible to populism and you have the other branch which isn't which is sort of more focused on longterm and yes maybe the $200 well you assume more focused on the law
• 48:30 - 49:00 term why not just say more focused on whatever interests them that may be the long term but it may not uh I it's if you assume which I guess I'm prepared to assume what the french declaration and what John Adams and r so and lock thought
• 49:00 - 49:30 self-government then I don't I I I I don't get I don't get the argument and the argument you make is well yeah the the advantage is in they're not responsible to the people well I I would have thought that's an argument against it but then let's elect all judges so why isn't the Supreme Court of the United States elected then we can also elect all judges then let's elect the Supreme Court of unit electing judges is a really interesting
• 49:30 - 50:00 case uh when judges uh confine themselves to actually just deciding cases under the law it seemed a very good idea as a matter of fact John Adams uh in that same declaration of rights in
• 50:00 - 50:30 uh 1780 said that judges shall uh serve uh for life and their compensation cannot be limited to the end that they be as independent as the lot of man allows that's this phrase now uh that phrase was dropped but the feder Constitution picked up the uh the structural point the structural point is
• 50:30 - 51:00 that the judges are not supposed to be making laws so that's all right they're supposed to Simply decide according to the laws that have been made well if you believe that I'll tell you another but uh uh nevertheless that's the idea yes ma'am just slightly sticking with the English
• 51:00 - 51:30 theme sorry for non-english people um one of the major objections that people some people have to the House of Lords is that it seemed corrupt that we're able to that parties and politicians are able to reward people um for their loyalty to the party or for contributions by giving them a seat in the legislature so a major objection to the House of Lords is that lots of party donors get get appointed to the House of Lords um but how is that any more corrupt than a campaign system like the United States where you can buy you effectively can buy influence over the
• 51:30 - 52:00 legislature uh because it is more frankly corrupt our system pretends not to be uh this is no I mean nobody quarrels with the notion that the way you get into the House of Lords is on the birthday honors list and that it is Major contributors to the party
• 52:00 - 52:30 uh scile uh politicians uh you know stuff like I mean that that's understood uh it is debated not very sincerely but debated that uh our elections are bought I mean that that's the answer the best answer I can give you
• 52:30 - 53:00 yeah yes could you speak a little bit about the original way that the Senate was elected and whether that might be something similar to what the English people were were speaking about uh well that that's the the Senate was originally uh senators were originally chosen by by the state legislators so they weren't popularly
• 53:00 - 53:30 elected I you know that's debatable it is certainly Democratic accountability but at one further remove and the framers intended it to be at one further remove but it is still Democratic uh democratic accountability
• 53:30 - 54:00 uh yes sir oh we we need to get you a microphone I just going to say what do you think about a current uh Trend or argument for a form of E democracy or trer form of democracy rather than a republican system where technology allows us to vote more directly on on issues rather than depending on our elected representatives I'm talking to a man who's wearing an eyew watch uh
• 54:00 - 54:30 well I what do I think about gosh I don't know it's not I mean it's it's a true form of democracy it is a true form of democracy in one sense because you could in fact have a legislature consisting of all the electors I suppose I you know the integrated
• 54:30 - 55:00 online it my mind doesn't quite get around it uh what what about the deliberation after all what a representative body does is it puts a little distance between the voters and the result uh dur in and in that distance you can have uh debate and
• 55:00 - 55:30 deliberation under your system which has been you know of course it's been suggested and I'm familiar with it uh it's scary now but that may just be that democracy is scary and that may just be your point uh well the representatives could do the deliberation and then provide what they want instead of them voting on it they could present it to the people and then we could you know vote for it on our
• 55:30 - 56:00 phone so the deliberation is still there but it's not them deciding it's it's us making the final decision as as on on legislation that that they've deliberated that they propos and they present the proposal to us the people uhhuh and this would be all legislation not just sort of a californ some discretion could be used I mean doesn't have to be every single you know minute change to a statute or something but things that are
• 56:00 - 56:30 considerable and that affect us I think should be you know I'm at a loss for words uh in the sense that it might be a wonderful thing it's never been tried we don't you know it never been tried it's been tried a lot in California as so many other things have been tried in California uh it's been tried in California uh because so
• 56:30 - 57:00 much of importance has bubbled up through the uh referendum system direct de democracy system uh a lot of that that which has bubbled up has been quite unfortunate for instance it took forever to to have a reasonable Finance
• 57:00 - 57:30 system in California because by referendum that was uh that was blocked uh but you know I can't give you an argument against it uh there there It Is Well last question and then we're going to stop um we haven't really discussed the Electoral College quite yet um and I know that the past 15 years or so there's since Bush versus Gore in 2000 there's been a lot
• 57:30 - 58:00 of discussion about um the merits of the Electoral College and certain states have begun to move in the direction of stating that are going to allocate their electors now and uh I think is it Nebraska or yeah Nebraska in Rhode Island there discussion as well so I'm wondering what you think about that Trend if it's going to continue or I don't know whether it will continue you but I'm trying very hard to think what a really good argument for the Electoral College is
• 58:00 - 58:30 and I can't do it thank you very much