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Books: Authors on Saving the Constitution, Nation

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Eric Lane, Michael Oreskes and Larry J. Sabato
Authors, "The Genius of America," "A More Perfect Constitution"
Tuesday, October 30, 2007; 3:00 PM

Authors Eric Lane and Michael Oreskes ("The Genius of America") and Larry J. Sabato ("A More Perfect Constitution") will be online Tuesday, Oct. 30 at 3 p.m. ET to examine and debate the Constitutional crises that have arisen during the Bush administration, and the steps that can be taken and changes that can be made to preserve our rights and the power of our nation's founding document.

The transcript follows.

Sabato is the founder of the Center for Politics at the University of Virginia, where he has taught since 1978. He has written more than 20 books and co-anchored the BBC's coverage of the 2006 election.

Lane, a law professor at Hofstra University, has written several books on government. He also directed revision committees for the New York State Constitution and the New York City Charter.

Oreskes is the executive editor of the International Herald Tribune. Prior to that he had been deputy managing editor, Washington bureau chief and metropolitan editor of the New York Times.

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Larry J. Sabato: My new book, "A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country" (Walker and Co.), has been generating a lot of controversy, which is entirely a good thing. We ought to be thinking about and debating the Constitution much more than we do. I look forward to continuing this discussion with readers, plus fellow Constitution admirers Eric Lane and Michael Oreskes. No one will agree with all 23 of my ideas, but it's an unusual or extremely hidebound citizen who won't agree with any. Please go to our Web site, http://amoreperfectconstitution.com/, to learn more.

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Eric Lane: Thanks for the opportunity to participate in the conversation. I'm new to it and may be slow.

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New York: Prof. Lane: Didn't you recently say on C-SPAN that no one knows the "original intent" of the Constitution? If so, then isn't that an argument to completely revise it?

Eric Lane: What I meant was that on the hard questions before the Supreme Court it is basically impossible to know from the Constitution what the original intent was or how the framers would have answered it. But that has nothing to do with the structure of government or the principles of governance.

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Michael Oreskes: Hello. We are very glad to join this chat. One of the key arguments in our book, "The Genius of America," is that we need to devote more time, effort and energy to understanding the key tenets of our Constitution. They are, as Lowell Weicker once said, what "hold us all together." But we worry in our book that those bonds of union have been fraying.

Chats like this can only help renew them

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Cedar Falls, Iowa: Which candidates, Republican and Democrat, are most dedicated to returning the presidency to its role as defined in our Constitution?

Larry J. Sabato: That remains to be seen, and the answer requires a partisan judgment that I assiduously avoid. However, I would really like to see some discussion of my proposal in AMPC to restore the balance of war powers between the president and Congress. My proposal has been called creative and innovative, although it is certainly provocative; the Congress would be forced to vote every six months on any foreign war. If even one house voted the war down, a president would have one year to withdraw all combat troops. Some say that Congress can cut off the funding for a war at any time, and my amendment is unnecessary. Malarkey! Politicians are never going to starve the troops. Unfortunately Congress needs a structural prod to get it back in the war powers game. At least this is my contention and my proposal.

Michael Oreskes: This is a very important question.

Indeed, it is so important that Eric Lane and I suggested that the candidates should be asked about their constitutional views in the many and proliferating debates. For example, surely, one of the most important set of decisions our next president will make is balancing constitutionally assured liberties with the need to defend against terrorism. Yet the question of how the candidates would do this if elected has barely been asked in the debates.

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Vienna, Va.: Is a Constitutional amendment the only way to prevent the political gerrymandering that is so pervasive throughout the states?

Larry J. Sabato: Good question. If any state legislature wanted to prevent gerrymandering, they could do what Iowa, Arizona, and a few other states have done--establish a nonpartisan redistricting commission or procedure of some sort. Now let's get real. The vast majority of legislatures of both parties will never, ever eliminate partisan gerrymandering unless they are forced to do so. And that is where an Article V constitutional convention comes in. Only the people can force this kind of change. It will never come from Congress or the state legislatures.

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Las Vegas: Has the power to "regulate Commerce ... among the several States" been expanded from what was originally delegated? If so, under what (legitimate) authority was it expanded?

Eric Lane: The interpretation of the commerce clause has changed to reflect changing times, e.g. industrial revolution, depression. It use to be for example that a factory was not considered part of commerce so child labor laws were struck down.

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Boston: What mechanism do Congress or private citizens have to challenge the Constitutionality of any or all of Bush's signing statements, and why hasn't this been done to date? Does Congress cede to the executive the power to decide which laws it will follow/enforce if it doesn't challenge these signing statements?

Eric Lane: the constitutionality of the signing statement is not really the question. the real question is the constitutionality of the conduct of the president. So if the president says I sign this bill against torture but maintain my constitution power. that is not actionable. But if someone is tortured as part of a policy that ignores the statute that may be if the tortured person has standing. A better example might be the Patriot act. If president signs it but in statement says none of his powers have been curtailed. and then ignores statute that is actionable

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London: One key constitutional question that sometimes seemingly got lost in the legal entanglements of the 2000 election was that Bush was elected on a minority popular vote but with an Electoral College majority. To what extent can the Constitution be defended -- that it enables this to happen -- and is there any evidence that Bush was conscious of his "minority" status in his approach to later constitutionally sensitive issues?

Michael Oreskes: We suggest in "The Genius of America" a specific action for the electoral college. We propose it should be bronzed as a memorial to the spirit of compromise that prevailed at The Constitutional Convention in Philadelphia. The delegates could not agree on how to pick this new chief executive, The President. So they did what many legislative bodies do, they sent the issue to committee. That committee produced the camel of American government, the electoral college, which tried to resolve all the conflicting views of how to select a president in one unwieldy process. Yet, for all that the 2000 election was a pretty rare event in American history, a divergence of the electoral and popular vote. Which allows supporters of the electoral college to continue to make a strong case that benefits of this system (for example, it helps spread campaigning out over more states) are still greater than the drawbacks

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Omaha, Neb.: It appears to me that the founders set up safeguards within the Constitution guaranteeing its integrity, i.e. a strong Congress, an independent judiciary, an executive legally bound to its preservation, protection and defense, and the ability for the people to democratically elect their leaders; however all three branches and the American public seem to have given short shrift to their Constitutional responsibilities, mainly because the personal virtue required to maintain accountability concerning these obligations has all but vanished. Does anyone agree with that assessment, and if so, what steps can be taken to re-establish a personal commitment towards virtue by all concerned?

Larry J. Sabato: You and I are in the same choir. As you will discover if you read "A More Perfect Constitution," I recommend the establishment of a Bill of Responsibilities, to match the Bill of Rights. The key component of this new section of the Constitution would be Universal National Service, with a requirement that every able-bodied young person between 18 and 26 give two years to public service. However, I define public service broadly. it includes the branches of the military, governmental agencies such as the Peace Corps and AmeriCorps, but also private sector non-profits such as Teach For America. In addition, I believe that we should invest in creating new opportunities for this UNS including a national disaster strike-force. Think what this could have done after Katrina.

Eric Lane: this is an excellent question. And it goes right to the heart of our book "The Genius of America." We need to education Americans about the Constitution and its principles. Without that we will continue to drift.

Michael Oreskes: The teaching of civics has evaporated from our society. All the studies show the results. As Ronald Reagan warned, if we don't know our history we will forget who we are. We quote Reagan saying this in "The Genius of America" because we fear that exactly what he warned of is happening.

We need to reverse this loss of memory. We should teach civics in third grade. We should teach civics in sixth grade, and then in ninth grade and all through college.

Then we should require remedial civics in The Senate cloakroom to address Senator Robert Byrd's observation that "people revere the constitution yet no so little about it--and that goes for some of my fellow senators."

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San Francisco: Dr. Sabato, in your book you call for a Universal National Service, which would include military as well as other nation building exercises. If passed as a requirement, do you believe the armed forces should be forced to admit America's gay, lesbian and transgender populations?

Larry J. Sabato: Of course. And this is an inevitability, whether Universal National Service happens or not. it is just a matter of time before the United States does what most other countries have done for years. However, I do believe that UNS would further that change because it would generate a reevaluation of the whole concept of service -- and I chose the word "universal" purposefully.

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Harrisburg, Pa.: I would appreciate receiving the impressions that each of you have regarding the Patriot Act and how it impacts the Constitution.

Eric Lane: I am answering your from the perspective our book. In times of high security concern there is always a new balance that needs to be struck between freedom and security. But the public should fully participate in the choices that need to be made. In this case Congress passed the act overnight excluding the public and most members of congress from the discussion.

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Philadelphia: Some of the Constitution was formed as 19th century political compromise. What is the relevance of these 19th century political compromises to the politics of today?

Larry J. Sabato: The compromises reached in 1787 are now 220 years old. Some, such as federalism and separation of powers still work well, overall. But there are many bits and pieces in the Constitution that are archaic and need to be changed. Only the most hidebound refuse to admit that change is needed. Unfortunately, there are a lot of hidebound people in this country. The key is to leave untouched what still works, but have the courage to change what does not. My book tries to distinguish between the two categories.

Eric Lane: The compromises over the structure and processes of government (slavery excluded) have maintained our freedom and helped us prosper for 220 years. Perhaps as Larry argues changes are necessary (and some of his ideas are very interesting) but before get to that we must understand those compromises and how they worked. This is at the heart of our book "Genius of America."

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San Antonio: What yardstick would you use to determine whether our democracy is a government "of the people, by the people and for the people"? Writing to one's representatives and waiting to vote every four years seem like empty gestures, as we all know that money dictates policy outcomes.

Michael Oreskes: This question goes to the very heart of what the framers invented. The Constitution was a brilliant and totally original invention. The reason is that for the first time in history it created a government that drew all sovereignty from the people, not from God or lineage or rank in society. But since it drew authority only from the people a way to control the sovereign (the people) from excess was also needed. This was the true Genius. The power was divided up, among branches of government, and even within branches. As the historian Gordon Wood has so well described, this division produced not chaos but a balance of power that assured liberty.

Some people think a government of the people is a government that does what they want. But a government of the people by the people and for the people is actually a government that lets everyone participate and then produces compromises and tradeoffs so overall we get what we need as a country.

Michael Oreskes: If "The Genius of America" is about any one thought, it is about the enduring value of this invention.

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Westwood, Mass.: At what point will the United States cease to be "at war," and which branch of government determines that? Will it take an explicit legislative declaration that we no longer are "at war" for the president to lose his "wartime powers"? Conversely, is a "war on terror" perpetual by definition, and therefore "wartime powers" really are permanent executive powers?

Eric Lane: This is very good and very hard question. The president can say the war is over. Congress can end the war by stopping its funding as it did in Vietnam. The war on terror is something new, a war without a state enemy, but again the answer is the same Congress could restrain the President's activities but not authorizing e.g. the Patriot's act. As we discuss in our book, at time like this when our concern over our safety is high we have to be very vigilant of our freedoms.

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Bethesda, Md.: The Christian Right say that the founding fathers established a Christian nation, yet quite clearly they (the founding fathers) believed in separation of church and state. Where did the founding fathers draw the line? And where does this notion of them establishing a Christian nation come from?

Michael Oreskes: It is profoundly significant that the first clause of the first amendment to The Constitution is about religion. It specifically bars the government from acting on establishment of religion. In other words, it was for the purpose of keeping government out of religion. This separation of church and state by the way is rather different from the meaning of the same phrase in other countries. In America, the fear was government interfering in the exercise of religion. In France, by way of contrast, the central fear was interference by organized religion in the work of government.

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Fairfax, Va.: Messrs Lane, Oreskes and Sabato, thank you for your willingness to debate in a public setting. Our government is in turmoil and Americans do not believe in the work being done, and are frustrated with the work that is not being done in Washington. Do you gentleman subscribe to the theory that sound local politics can help the perception of politicians at the national level? Do you agree that if local politicians can help ease the everyday frustrations, like the commute to work, it would improve the morale of all Americans? Could a national monorail system help to solve America's dependence on foreign oil and bring about a higher approval rating of Congress and the Bush administration?

Larry J. Sabato: Of course you are correct, and except in the area of war and peace, the most critical decisions made by government are made at the local level. But it is vital that the structures of the federal and state governments be improved and brought up to date, since local governments are mere creatures of state governments. If the federal and state governments aren't working well, then the local governments aren't going to work well either. As for the monorail, we saw how well it worked on "The Simpsons"...

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New Orleans: I've heard that the constitutions of not one of the many dozens of democracies that America has helped establish around the world use an Electoral College. True? And should we keep ours?

Larry J. Sabato: There is nothing quite like America's Electoral College, so you are correct. However, certain aspects of the College fit our federal system. So in "A More Perfect Constitution" I do not call for the abolition of the Electoral College, but rather the improvements I have already discussed. Remember, the great advantage of the Electoral College, other than under-girding federalism, is in isolating recounts. Would any of us have wanted the Florida 2000 recount to go national? We would never have gotten a president, and the Speaker of the House would probably have been acting president for years. We are a litigious society.

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Rochester, N.Y.: It is my understanding the President of the United States has the authority to instruct the Department of Justice to refrain from enforcing a provision of federal law. The instrument used to accomplish this is a "congressional" signing statement that documents his/her reason for doing so with respect to a congressional bill signed by the [resident. This process is described in Paragraph 2, Section 7, Article I of our Constitution. However, the president is not empowered to rule or interpret the constitutionality of federal law for purposes of indirectly rendering a statute null and void. That is strictly reserved for the judicial branch.

I have three questions. Doesn't the DOJ have the obligation to uphold all federal laws enacted by the Congress, despite the political strong-arm tactics of the executive branch? Do States have the right to comply with all aspects of federal law, even if the DOJ will not enforce some? Are the American people witnessing an attempt by the executive branch to usurp the powers of Congress and thus upset the balance of government by the people? "Save the cheerleader, save the world" is fantasy. "Save the Constitution, save America" is reality.

Eric Lane: The President really does not have the power to ignore laws, even ones he has vetoed. the signing statements in which he says he interprets the statutes in a particular way (e.g. broadly or narrowly) can however effect how a statute is enforced. It is then up to the courts. so far the courts do not except signing statements as evidence of legislative intention (except in NY)

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About the Books: Would any of you gentlemen have written your books if we had not been attacked by terrorists? From the Q&A so far, it seems as though your main intent is to get the U.S. out of Iraq and to overturn the Patriot Act.

Larry J. Sabato: My friend, I have been outlining and writing bits of this book since the 1970s. And my comments on war powers are as much a commentary on Democrat Harry Truman and Korea or Democrat Lyndon Johnson and Vietnam, as they are on George W. Bush and Iraq. Every single one of my 23 proposals is non-partisan, and I have as many conservative ideas as liberal ideas in A More Perfect Constitution." Take a look and see. By the way, some of my ideas come from the Founders. Unwisely, a few of the ideas of James Madison, George Washington, and Thomas Jefferson were rejected in favor of inferior ideas.

Eric Lane: Yes. Our book "The Genius of America" is about the virtues of the Constitution and its principles, how they have shaped our history and how we are now drifting from them and have been for the last several decades.

Michael Oreskes: A key thought in "The Genius of America" is that governmental issues raised by, say, the war in Iraq, The Patriot Act or other moments of contemporary history are best understood in the 220 year arc of American Constitutionalism.

It lends perspective to read the arguments about the Patriot Act against the firestorm of politics that lead too and then were stirred by the decision of John Adams to sign the Sedition act, which made criticism of the president a crime. That was certainly a break down of the system. But in 1800 the voters fixed the situation. They threw John Adams and the Federalists out of office.

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South Bend, Ind.: What is the status of the California referendum to allocate electoral votes by congressional district? What impact could that have on the attempts to implement nonpartisan gerrymandering?

Larry J. Sabato: I am glad you raised the issue. I discuss the California plan and the similar drive to have electoral votes allocated by districts in "A More Perfect Constitution." It is a terrible idea and it must be defeated at all costs. The district-by-district system would actually make the Electoral College even worse, in part because the Electoral Votes would then be distorted by our sad system of partisan gerrymandering. I urge you to take a look at what I have to say about it and to support constructive changes in the Electoral College, not the destructive California idea.

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Troy, N.Y.: Do any of you think we should be more aggressive in amending the Constitution? Keep the general framework of government, but allow the people and the legislature decide sticky issues, as opposed to judges?

Larry J. Sabato: You had better believe it! Congress has been a burial ground for virtually every good idea imaginable, having sunk over 9,000 Constitutional Amendments. Yes, the vast majority should have been sunk, but the regularly throw the baby out with the bath water. A constitutional convention, as outlined in Article V would be the most marvelous opportunity for change and civic education in American history--at least since 1787. I don't want a convention tomorrow, or next year, or even in ten years. It will take a generation to plan properly for this. But it is time to stop being afraid of all change, and started trying to build a better mousetrap. Successful societies do precisely that. Other nations that are more open to change may very well make the 21st Century their century if we do not act.

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Princeton, N.J.: I can't vote on whether to invade Iraq, give Medicare to everyone or to suspend habeas corpus -- all I can do is to vote for those who do have the power. Therefore, isn't it important that I be able to get information so that I can make the proper vote? Relate this question to the desire for secrecy by the Bush administration.

Eric Lane: You have said it all.

Michael Oreskes: Excellent question. What the framers invented was a representative not a direct democracy. This was partly because some of us have day jobs and, unlike Athens, we can't all show up for the discussion of every issue. The country will be more effective if some of us build while others we send resolve our conflicts.

But, as you wisely observe from Princeton (where James Madison went to College), this system is dependent on our ability to stay informed so we can judge whether our representatives are representing us.

That takes commitment. In "The Genius of America" we talk about our Constitutional Conscience. It is the mindset that causes us to do what we should do to make our government work right. Learning what the government is doing, and demanding that the government tell us what it is doing, are part of that Constitutional Conscience

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Harrisburg, Pa.: What are your thoughts of the about whether states can form a compact where, once the compact can deliver enough electoral votes to decide the winner of the presidential election, all compact member states will pledge their electors to vote for the national plurality vote winner?

Larry J. Sabato: I come out against that reform in "A More Perfect Constitution," because in many ways it does not make sense and it will never happen. Instead, I propose specific Electoral College changes that will work, including making the Electoral College more proportionately representative of the population, making the Electoral College positions honorary ones and changing the insane unit rule in the House of Representatives should there ever be an Electoral College deadlock for president.

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Salt Lake City: How many different attacks have been made on the Constitution during this administration? Which do you consider the most serious? Why have they been allowed?

Eric Lane: The expansion of executive power, but more problematic congress' deference to this expansion.

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Mount Rainier, Md.: Gentlemen, haven't read the books yet, but will add it to my list of must-reads in 2007. Having said that, how do your ideas square with what Naomi Wolf documents in "The End Of America" -- specifically, if we are on a slide to totalitarianism, could it already be too late?

Eric Lane: I think that the expansion of presidential power against the backdrop of a deferential congress and public is worrisome but not as worrisome as Naomi Wolf thinks

Larry J. Sabato: I agree with Eric, and I would argue strongly that my 23 ideas for change will help to preserve and extend our democratic system. I'm a realist, but my realism is tinged with optimism.

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Lynchburg, Va.: How do we change the current system of constant fundraising by candidates? If money is speech, then restricting money is a First Amendment violation. But at the same time, the current system clearly is flawed.

Larry J. Sabato: I have several proposed changes in campaign finance included in my 23 reform ideas in "A More Perfect Constitution." Just to mention one that is relevant to your question, I believe that we should provide public funding to qualified candidates for Congress. However, I do not believe that the funding should be as an absolute ceiling, because it is impossible to stop the flow of political money in a vigorous democracy. Instead, the money would be provided as a "floor," which would help challenges disproportionately. It is the challengers who have difficulty raising enough money to get started and to be competitive. Other money could be raised and spent on top of the floor. But remember, the first dollars are the most important dollars raised in any political race.

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Millvale, Pa.: Sirs: In law school, a professor once opined that the importance, thrust and impact of an administrative decision or court precedent was not the instant case but those which would build upon it and ergo follow so much easier. With this administration, and those that follow, how much of U.S. foreign policy and domestic liberties will be defined by those who have an ideological and messianic view of the world?

Eric Lane: A good question if I understand it. We have recently written a column on the question no candidates answer which is an attempt to warn Americans that the next president Democrat or Republican will not easily give back the power President Bush has asserted.

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Michael Oreskes: Thank you so much for your questions.

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Eric Lane: Thanks for all the interesting questions. Sorry we did not have time to answer them all. But you can get our take in "The Genius of America."

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Larry J. Sabato: Thank you all very much for your questions. As usual, we simply were not able to most of them in an hour-long conversation. If you would like to register an opinion about constitutional change, I hope you will go to my Web site: http://amoreperfectconstitution.com/

Good afternoon to all!

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