Fuld transskription af Remembering Gordon Wood: The Revolution, the Constitution, and the Work of History

Professor Stephen Calabresi, the Barber Professor of 68 00:04:00.680 --> 00:04:03.280 Law at Northwestern and the co-chairman of the Board of 69 00:04:03.300 --> 00:04:07.139 Directors of the Federal Society, will speak first. He will 70 00:04:07.159 --> 00:04:10.599 be followed by Professor Jeffrey Rosen, a senior fellow at 71 00:04:10.680 --> 00:04:14.909 FIRE and CEO Emeritus at at the National Constitution Center. 72 00:04:15.280 --> 00:04:19.180 And our final speaker will be Richard Brookhiser, Senior Editor 73 00:04:19.379 --> 00:04:22.040 at National Review. Professor Calabresi. 74 00:04:23.240 --> 00:04:26.220 Thank you, Judge Branch, very much for that introduction. And 75 00:04:26.279 --> 00:04:29.259 thank you, Elizabeth Slattery, for your work in putting together 76 00:04:29.300 --> 00:04:33.420 this webinar. It's a great honor to speak today on 77 00:04:33.500 --> 00:04:39.240 Constitution Day about Professor Gordon Wood. Gordon Wood was a 78 00:04:39.300 --> 00:04:43.800 towering scholar in every way. He was the best historian 79 00:04:43.839 --> 00:04:47.000 of the American Revolution and of the writing of the 80 00:04:47.060 --> 00:04:52.230 Constitution and in general of the period from 1760 to 81 00:04:52.230 --> 00:04:57.009 1826 of all time. No one else in the 237 82 00:04:57.009 --> 00:05:01.170 years since the Constitution went into effect even comes close. 83 00:05:02.370 --> 00:05:07.790 Gordon's two biggest contributions were first in expanding our understanding 84 00:05:07.829 --> 00:05:11.649 of the American Revolution by defining it as a moment 85 00:05:11.769 --> 00:05:17.029 of radical political and societal transformation, where an older world 86 00:05:17.089 --> 00:05:22.160 rooted in hereditary privilege was rejected in favor of republicanism 87 00:05:22.180 --> 00:05:27.519 and the equality of all human beings. And second, in 88 00:05:27.579 --> 00:05:30.759 explaining how Americans came to put their faith in our 89 00:05:30.819 --> 00:05:36.040 written and amended constitution. Gordon knew the writings of each 90 00:05:36.079 --> 00:05:39.319 of the framers vividly, and he wrote about all of 91 00:05:39.370 --> 00:05:44.800 their lives. He described their virtues and vices with perfect precision. 92 00:05:45.579 --> 00:05:48.740 He was as institutionally honest an historian as one will 93 00:05:48.819 --> 00:05:53.439 ever find. Gordon did not write hagiographies, but instead painted 94 00:05:53.500 --> 00:05:56.790 an accurate portrait of the great men he wrote about. 95 00:05:57.589 --> 00:06:01.029 Gordon was as great an historian, in my opinion, as 96 00:06:01.110 --> 00:06:06.689 Herodotus and Thucydides, which is high praise indeed. Gordon was 97 00:06:06.790 --> 00:06:10.670 also a brave man. a public intellectual who was not 98 00:06:10.730 --> 00:06:15.550 afraid to challenge popular errors. As Judge Branch mentioned, he 99 00:06:15.629 --> 00:06:19.959 led the effort to denounce the New York Times' 1619 Project, 100 00:06:20.519 --> 00:06:23.459 which argued that the framers were all about slavery and 101 00:06:23.480 --> 00:06:28.079 the triumph of racism. Gordon earned some heated criticism for 102 00:06:28.120 --> 00:06:31.470 his courageous stance against the DEI effort to paint the 103 00:06:31.529 --> 00:06:36.050 founders as racist villains. To Gordon, the abolition of slavery, 104 00:06:36.709 --> 00:06:39.889 women's right to vote, and the Civil Rights Movement of 105 00:06:39.910 --> 00:06:44.629 the 1960s followed from the founding principles in the Declaration 106 00:06:44.670 --> 00:06:51.009 of Independence. Gordon believed that the year 1776, when the 107 00:06:51.069 --> 00:06:55.279 Declaration of Independence was published, was the most important year 108 00:06:55.339 --> 00:06:58.120 in human history, and that is the year in which 109 00:06:58.240 --> 00:07:01.420 human beings began to move away from slavery and toward 110 00:07:01.480 --> 00:07:07.959 freedom and equality. Gordon was equally outspoken in criticizing people 111 00:07:08.060 --> 00:07:12.009 on the right when he disagreed with them. He criticized 112 00:07:12.050 --> 00:07:15.930 Vice President J.D. Vance for arguing that Americans are defined 113 00:07:15.970 --> 00:07:19.529 by their bloodlines and not, as Gordon believed, by their 114 00:07:19.569 --> 00:07:23.750 devotion to the principles of the Declaration of Independence and 115 00:07:23.810 --> 00:07:27.949 of the Constitution. In a speech at the American Enterprise 116 00:07:28.009 --> 00:07:30.819 Institute a year ago and in an op-ed in the 117 00:07:30.860 --> 00:07:34.459 Wall Street Journal, Gordon wrote that the United States has 118 00:07:34.579 --> 00:07:39.060 always been a creedal nation, He saw us all as 119 00:07:39.120 --> 00:07:42.500 from the start of our history as being defined by 120 00:07:42.560 --> 00:07:45.810 believing in the idea that all human beings are created 121 00:07:46.009 --> 00:07:50.329 equal and have an inalienable right to life, liberty, and 122 00:07:50.370 --> 00:07:54.870 the pursuit of happiness. We are Americans because we believe 123 00:07:54.889 --> 00:08:04.800 in that idea, whether our ancestors were English, French, German, Italian, Irish, Polish, Jewish, 124 00:08:05.439 --> 00:08:09.459 or of African or Asian descent. Gordon was just as 125 00:08:09.600 --> 00:08:12.850 adamant in denouncing nativism as he was in denouncing the 126 00:08:12.850 --> 00:08:18.709 1619 Project. Gordon was also never overstated, nor did he 127 00:08:18.870 --> 00:08:23.009 understate his case on any point or person of historical interest. 128 00:08:24.689 --> 00:08:28.660 The Greeks and the Romans identified four cardinal virtues, all 129 00:08:28.680 --> 00:08:35.659 of which Gordon practiced. Practical wisdom, justice, courage, and temperance. 130 00:08:36.559 --> 00:08:42.279 Gordon embodied all four of these cardinal virtues. He was firm, sharp, 131 00:08:42.460 -->

00:08:46.990 and decisive, but also a deeply humble, modest, and kind 132 00:08:47.049 --> 00:08:51.389 man who loved his neighbor as himself. When the meek 133 00:08:51.450 --> 00:08:54.429 inherit the earth, Gordon will inherit all the land east 134 00:08:54.470 --> 00:08:58.059 of the Mississippi River. I tried to persuade him to 135 00:08:58.100 --> 00:09:01.720 let me write a biography of him, and he adamantly refused. 136 00:09:02.419 --> 00:09:04.980 He wanted to be known as a great historian, not 137 00:09:05.039 --> 00:09:10.110 as a celebrity. Although Gordon was an agnostic Episcopalian, he 138 00:09:10.169 --> 00:09:16.090 embodied the three Christian virtues identified by St. Thomas Aquinas, faith, hope, 139 00:09:16.370 --> 00:09:20.090 and love. He lived an exemplary life in every way 140 00:09:20.169 --> 00:09:24.450 down to celebrating the 70th anniversary of his marriage to 141 00:09:24.470 --> 00:09:29.950 his wife Louise shortly before he died. Gordon was also 142 00:09:30.049 --> 00:09:32.470 one of my five best friends in the world because 143 00:09:32.509 --> 00:09:35.360 he was so much fun to talk to. He had 144 00:09:35.399 --> 00:09:38.679 an immense knowledge, having read and remembered more books and 145 00:09:38.740 --> 00:09:42.490 articles than anyone else I had ever known. Gordon was 146 00:09:42.610 --> 00:09:47.129 cheerful and a wonderful colleague. During two semesters during which 147 00:09:47.190 --> 00:09:51.210 he taught with me at the Northwestern Pritzker School of Law, 148 00:09:51.809 --> 00:09:55.350 Gordon every day ate lunch, a brown bag lunch he'd 149 00:09:55.389 --> 00:09:59.970 made himself, in the faculty dining room, engaging in countless 150 00:10:00.049 --> 00:10:04.629 conversations with any faculty member who came along. When I 151 00:10:04.700 --> 00:10:08.120 moved to Rhode Island in 2007, I had lunch with 152 00:10:08.159 --> 00:10:13.019 Gordon right away, and we quickly became good friends. We 153 00:10:13.500 --> 00:10:17.629 met for lunch almost on average once a month, And 154 00:10:17.809 --> 00:10:22.029 I miss those lunch conversations greatly. I will treasure my 155 00:10:22.090 --> 00:10:25.450 memory of them for the rest of my life. Gordon 156 00:10:25.470 --> 00:10:28.350 Wood was both the best scholar ever of the American 157 00:10:28.429 --> 00:10:32.990 founding and a wonderful and virtuous human being. And he 158 00:10:33.029 --> 00:10:36.690 deserves to be remembered as the greatest historian so far 159 00:10:36.730 --> 00:10:37.970 in the American Republic. 160 00:10:40.570 --> 00:10:44.320 Thank you so much, Steve. I echo every one of 161 00:10:44.379 --> 00:10:47.320 Steve's beautifully expressed words. And I'm so grateful for the 162 00:10:47.340 --> 00:10:51.580 opportunity to celebrate Gordon Wood's legacy on Constitution Day. Happy 163 00:10:51.620 --> 00:10:56.120 Constitution Day, everyone. I first encountered Gordon Wood in law 164 00:10:56.139 --> 00:11:00.100

school when his towering book, The Creation of the American Republic, 165 00:11:00.159 --> 00:11:03.899 was the central text assigned by my teacher, Akhil Amar. 166 00:11:04.940 --> 00:11:06.940 I came to know him through many panels at the 167 00:11:06.980 --> 00:11:10.860 National Constitution Center that I moderated. and last saw him 168 00:11:11.179 --> 00:11:15.159 at a superb conference in his honor that Steve Calabresi 169 00:11:15.320 --> 00:11:18.980 convened in New Haven just, I think it was about 170 00:11:19.000 --> 00:11:23.169 a year ago. And spending time with Gordon and taking 171 00:11:23.210 --> 00:11:27.330 stock of his legacy was extremely meaningful. Steve gave me 172 00:11:27.370 --> 00:11:30.960 the homework assignment of talking about his book, The Radicalism 173 00:11:31.100 --> 00:11:33.799 of the American Revolution, which, as it happens, I hadn't 174 00:11:33.879 --> 00:11:36.139 read because it hadn't come out by the time I 175 00:11:36.179 --> 00:11:39.289 graduated from law school. So Kiel wasn't able to assign it. 176 00:11:39.419 --> 00:11:42.919 And it was an extraordinary learning experience to read it 177 00:11:43.019 --> 00:11:44.620 and learn from it. And I'll tell you what I 178 00:11:45.039 --> 00:11:47.320 learned from it in a moment. But for me, the 179 00:11:47.360 --> 00:11:50.379 most meaningful part of the conference was talking with Gordon 180 00:11:51.330 --> 00:11:56.309 and his sharing that his favorite moment in the constitutional 181 00:11:56.669 --> 00:12:01.559 ratifying debates was was when William Finley, the weaver from 182 00:12:01.639 --> 00:12:06.600 backcountry Pennsylvania, bested James Wilson on a point of law. 183 00:12:06.659 --> 00:12:10.070 James Wilson, the most scholarly of all the founders educated 184 00:12:10.129 --> 00:12:15.570 at the University of Aberdeen, was debating Finley. Finley claimed 185 00:12:16.149 --> 00:12:19.990 that the Constitution failed to guarantee jury trials in civil cases. 186 00:12:20.309 --> 00:12:22.500 And that was a warning. He said when Sweden lost 187 00:12:22.549 --> 00:12:25.830 trial by jury, it lost its liberty. James Wilson mocked 188 00:12:25.889 --> 00:12:28.570 him and denied that Sweden ever had any jury trials. 189 00:12:28.830 --> 00:12:31.649 So the next day, Finley brings his third volume of 190 00:12:31.710 --> 00:12:35.840 Blackstone's commentaries and shows that actually he'd been right and 191 00:12:36.169 --> 00:12:40.299 Wilson was wrong. And Wilson has an incredibly haughty response, 192 00:12:40.799 --> 00:12:43.940 basically saying, I'll forget more law in a day than 193 00:12:43.960 --> 00:12:45.779 you'll ever know in your lifetime. He says, I don't 194 00:12:45.820 --> 00:12:48.759 pretend to remember everything I read, but those whose stock 195 00:12:48.799 --> 00:12:51.419 of knowledge is limited to a few items may easily 196 00:12:51.919 --> 00:12:54.720 have cause to remember them. And for Gordon, that was 197 00:12:54.759 --> 00:12:59.990 significant because it just showed that a self-taught anti-federalist who 198 00:13:00.070 --> 00:13:03.570 read primary sources was able to go toe to toe 199 00:13:03.649 --> 00:13:06.629 with the most educated founder of his age. I think 200 00:13:06.710 --> 00:13:11.250 Finley also appealed to Gordon Wood because they shared a 201 00:13:11.690 --> 00:13:16.820 working class background. Neither of Gordon Wood's parents went to college. 202 00:13:17.690 --> 00:13:22.909 And Gordon really had sympathy. He was born in Worcester. 203 00:13:22.950 --> 00:13:26.399 His father was a factory worker. His mother did office work. 204 00:13:26.840 --> 00:13:30.320 And his extraordinary achievements were always informed by an appreciation 205 00:13:30.399 --> 00:13:34.620 both of Federalists and Anti-Federalists and people from all backgrounds, 206 00:13:34.899 --> 00:13:37.679 all of whom have claimed to the American idea. After 207 00:13:37.740 --> 00:13:44.669 reading the radicalism of the American Revolution, I learned and 208 00:13:44.730 --> 00:13:49.220 was able to really be struck by the fact that 209 00:13:50.389 --> 00:13:58.059 Gordon describes its radicalism as a transition from old ideas 210 00:13:58.299 --> 00:14:03.720 of deference to republicanism and ultimately to democracy. And he 211 00:14:03.759 --> 00:14:08.590 says that path took some time to complete. He shows 212 00:14:08.669 --> 00:14:11.899 that the American Revolution was not just a political revolution, 213 00:14:11.940 --> 00:14:15.759 but also a social and cultural revolution. And in that sense, 214 00:14:15.820 --> 00:14:18.919 it was as radical as any the world has ever known. 215 00:14:19.480 --> 00:14:21.820 As he writes, if we measure the radicalism by the 216 00:14:21.840 --> 00:14:25.490 amount of social change that actually took place, by transformation 217 00:14:25.590 --> 00:14:28.230 in the relationships that bound people to each other, then 218 00:14:28.269 --> 00:14:32.389 the American Revolution was not conservative at all. On the contrary, 219 00:14:32.409 --> 00:14:35.129 it was as radical and revolutionary as any in history. 220 00:14:35.889 --> 00:14:38.509 Wood shows that the radicalism of the American Revolution was 221 00:14:38.570 --> 00:14:42.190 based on the transformation of American society, from one based 222 00:14:42.269 --> 00:14:46.539 on hierarchy and monarchy to one based on equality, republicanism, 223 00:14:46.659 --> 00:14:51.460 and ultimately democracy. And although Thomas Jefferson initially framed the 224 00:14:51.500 --> 00:14:54.899 debate between America's two political parties as a debate between 225 00:14:55.240 --> 00:15:00.769 republicanism and monarchy, none of them could imagine the significance 226 00:15:01.049 --> 00:15:07.490 of the democratizing forces that the revolution set in motion. 227 00:15:08.470 --> 00:15:11.250 In the pursuit of liberty, I argue that the battle 228 00:15:11.350 -->

00:15:16.870 between Hamilton and Jefferson defines all of American history. In particular, 229 00:15:16.889 --> 00:15:20.299 their battles over national power and states' rights, liberal versus 230 00:15:20.340 --> 00:15:24.379 strict construction of the Constitution, and democracy versus rule by elites. 231 00:15:24.919 --> 00:15:27.899 Hamilton believes in the union and national sovereignty, Jefferson in 232 00:15:27.960 --> 00:15:31.720 local self-government and state sovereignty, Hamilton in the supremacy of 233 00:15:31.759 --> 00:15:34.700 we the people of the United States, Jefferson in the 234 00:15:34.720 --> 00:15:37.950 supremacy of we the people of the several states. Jefferson 235 00:15:37.990 --> 00:15:42.830 thinks every increase in centralized power threatens liberty, and Jefferson 236 00:15:42.990 --> 00:15:48.870 is determined to expand democracy. Wood's account of the transformation 237 00:15:48.909 --> 00:15:52.000 of American society from one based on allegiance to monarchy 238 00:15:52.419 --> 00:15:55.740 to one based on republicanism and ultimately equality and democracy 239 00:15:56.240 --> 00:16:00.139 shows how Jefferson was able to exploit the anti-democratic strains 240 00:16:00.179 --> 00:16:03.230 in the Federalist Party and the repeated praise of elected 241 00:16:03.279 --> 00:16:07.450 monarchs by Hamilton, Gouverneur Morris, and other Federalists for political gain. 242 00:16:08.149 --> 00:16:11.409 Hamilton cooked up the most effective conspiracy theory in American 243 00:16:11.450 --> 00:16:16.679 history when he accused Hamilton of conspiring to resurrect Caesarism 244 00:16:16.980 --> 00:16:20.019 in America based on a blurted-out comment at a dinner 245 00:16:20.059 --> 00:16:23.399 party that the greatest man that ever lived was Julius Caesar. 246 00:16:24.190 --> 00:16:26.570 And Wood shows that in addition to grappling with the 247 00:16:26.610 --> 00:16:30.549 political evolution from monarchy to republicanism, both Hamilton and Jefferson 248 00:16:30.830 --> 00:16:34.009 were grappling with radical social change in how the American 249 00:16:34.049 --> 00:16:39.179 people understood their relation to each other. Wood also shows 250 00:16:39.200 --> 00:16:42.720 that the disagreement between federalism and republicans was both political 251 00:16:42.860 --> 00:16:46.139 and social. In other words, Hamilton and Jefferson disagreed not 252 00:16:46.200 --> 00:16:49.750 only about the relationship between liberty and power, but also 253 00:16:49.909 --> 00:16:53.389 about how to respond to the transformation in the understanding 254 00:16:53.470 --> 00:16:57.269 of social equality, property, and labor heralded by the revolution. 255 00:16:57.909 --> 00:17:01.720 Jefferson saw equality as synonymous with independence and embraced freehold 256 00:17:01.779 --> 00:17:05.420 suffrage for white men. Hamilton feared assaults on property by 257 00:17:05.460 --> 00:17:07.720 the mob. And of course, in the final letter he 258 00:17:07.759 --> 00:17:10.559 wrote the day before he died, Hamilton insisted that breaking 259 00:17:10.599 --> 00:17:13.880 up the union would offer no relief to our real disease, 260 00:17:14.319 --> 00:17:20.099 which is democracy. It's also the case that Wood shows 261 00:17:20.180 --> 00:17:24.869 that the same battle between classical Republican and liberal visions, 262 00:17:25.450 --> 00:17:28.890 which were at war in Jefferson's own thought, were also 263 00:17:28.950 --> 00:17:31.250 at war between the Federalists and the Republicans throughout the 264 00:17:31.289 --> 00:17:35.759 founding era. And he illuminates Jefferson and Hamilton's battles over 265 00:17:35.799 --> 00:17:39.559 democracy versus rule by elites by showing this radical evolution 266 00:17:39.579 --> 00:17:43.759 in American society's understanding of equality. In particular, the idea 267 00:17:43.779 --> 00:17:47.200 of equality led to a transformation in American publics from 268 00:17:47.279 --> 00:17:51.720 republicanism to democracy. And Wood writes, equality was in fact 269 00:17:51.759 --> 00:17:54.900 the most radical and powerful ideological force let loose in 270 00:17:54.940 --> 00:17:58.279 the revolution. Its appeal was far more potent than any 271 00:17:58.299 --> 00:18:02.210 of the revolutionaries realized. once invoked the idea of equality 272 00:18:02.289 --> 00:18:05.609 could not be stopped, and it tore through American society 273 00:18:05.650 --> 00:18:10.339 and culture with awesome power. Wood also highlights the complexity 274 00:18:10.359 --> 00:18:13.900 of the relationship between political and social change, as each 275 00:18:14.099 --> 00:18:18.039 inspired the other. Jefferson's latent life insisted that all people 276 00:18:18.079 --> 00:18:21.059 could be divided by nature into two parties, Tories and Whigs, 277 00:18:21.420 --> 00:18:26.759 aristocrats and Democrats. And Wood demonstrates that the American shift 278 00:18:26.819 --> 00:18:31.230 from monarchy to republicanism to democracy represents a social revolution 279 00:18:31.309 --> 00:18:34.529 rather than simply a political revolution, one that went further 280 00:18:34.970 --> 00:18:40.880 than either Hamilton or Jefferson imagined. Both Jefferson and Hamilton 281 00:18:40.920 --> 00:18:44.460 initially embraced a classical Republican vision of civic Republican leaders, 282 00:18:44.980 --> 00:18:49.019 Jefferson as a natural aristocrat and Hamilton's professed class of 283 00:18:49.079 --> 00:18:53.039 elite lawyers and meritocrats. But the radicalism of the idea 284 00:18:53.079 --> 00:18:56.920 of equality led to a democratic revolution, as Republicans insist 285 00:18:56.980 --> 00:19:00.660 on universal freehold, in other words, so all white male 286 00:19:00.720 --> 00:19:06.660 citizens could vote on equal terms. I've always thought that 287 00:19:06.680 --> 00:19:09.890 the competing positions of Hamilton and Jefferson are like golden 288 00:19:09.930

--> 00:19:13.470 and silver threads woven throughout the tapestry of American history, 289 00:19:13.809 --> 00:19:17.029 sometimes side by side, sometimes crossing each other, and at 290 00:19:17.130 --> 00:19:20.750 critical moments pulling so far apart that they threaten to snap. 291 00:19:21.450 --> 00:19:24.380 In the radicalism of the American Revolution, as in each 292 00:19:24.410 --> 00:19:28.119 of his path-breaking books, Wood helps us untangle the threads 293 00:19:28.160 --> 00:19:31.700 of American social, intellectual, and political history and follow them 294 00:19:31.859 --> 00:19:34.859 from beginning to end. Each of his books illuminate different 295 00:19:34.920 --> 00:19:37.700 aspects of the founding era, but all are animated by 296 00:19:37.759 --> 00:19:42.730 the enthusiastic conviction that he expressed throughout our symposium, namely, 297 00:19:43.230 --> 00:19:47.009 that the American Revolution, based on the ideas of liberty, equality, 298 00:19:47.069 --> 00:19:50.920 and government by consent, is one of the most inspiring 299 00:19:51.019 --> 00:19:55.640 events in world history. For inspiring Americans to learn about 300 00:19:55.680 --> 00:19:58.799 the significance of the American idea, Gordon Wood will always 301 00:19:58.880 --> 00:20:05.380 occupy an honored place in American history. Thank you, Mr. 302 00:20:05.400 --> 00:20:05.900 Burkheiser. 303 00:20:07.619 --> 00:20:10.670 Thank you for having me. Thank you, Steve and Jeff, 304 00:20:10.990 --> 00:20:14.750 for your very interesting presentations. Just want to add one 305 00:20:14.789 --> 00:20:18.650 more difference between Hamilton and Jefferson. As a Hamilton biographer, 306 00:20:19.089 --> 00:20:23.569 Hamilton founded the New York Manumission Society. The only slaves 307 00:20:23.630 --> 00:20:28.309 Jefferson freed were his own descendants. But to Gordon Wood, 308 00:20:29.750 --> 00:20:34.190 not only did we lose him tragically this summer in 309 00:20:34.250 --> 00:20:38.529 this awful car crash, But it's the end of an 310 00:20:38.769 --> 00:20:43.349 era in the teaching of the American founding at our universities. 311 00:20:44.730 --> 00:20:51.319 People who only live in the history slot maybe don't 312 00:20:51.420 --> 00:20:57.009 realize how lucky they were during our lifetime. I was 313 00:20:57.069 --> 00:21:00.490 an English major at Yale, class of 77, and I 314 00:21:00.589 --> 00:21:04.329 saw what happens to my corner of the humanities. And 315 00:21:04.430 --> 00:21:06.890 if you don't know it yourself, you can read David 316 00:21:06.950 --> 00:21:12.009 Lodge's novel, Small World, about how theory took over everything. 317 00:21:12.069 --> 00:21:15.170 And he makes a comic, and he wrote a very 318 00:21:15.210 --> 00:21:21.130 funny book. But it was really an unfolding catastrophe. But 319 00:21:21.190 --> 00:21:24.599 what had happened in the teaching of the American founding, 320 00:21:24.640 --> 00:21:30.299 there was a first generation, Douglas Adair, Edmund Morgan, Bernard Balin, 321 00:21:30.559 --> 00:21:35.950 who directed Gordon Wood's Ph.D., And then their students would, 322 00:21:36.369 --> 00:21:40.630 of course, and also Joseph Ellis, his PhD was directed 323 00:21:40.690 --> 00:21:44.599 by Edmund Morgan. So it continued on for a second 324 00:21:44.690 --> 00:21:49.339 academic generation. And what these men did and what allowed 325 00:21:49.380 --> 00:21:52.559 them to buck so much nonsense that was happening in 326 00:21:52.579 --> 00:21:57.480 the rest of the humanities was they took seriously what 327 00:21:57.559 --> 00:22:02.559 the founders were saying and thinking. not just the famous 328 00:22:02.740 --> 00:22:06.460 ones on all the placemats, you know, presidential placemats, but 329 00:22:06.549 --> 00:22:10.970 also the ordinary people. They did not believe in Charles 330 00:22:11.109 --> 00:22:17.829 Beard's economic determinism model of the revolution. They wanted to know, 331 00:22:17.910 --> 00:22:22.240 they wanted to learn and examine what the actors themselves 332 00:22:22.420 --> 00:22:26.380 said they were doing and what they were thinking, and 333 00:22:26.420 --> 00:22:32.019 to take that very seriously. That operated for a long time. 334 00:22:32.730 --> 00:22:38.019 I think it's probably ending, if not absolutely over. All 335 00:22:38.079 --> 00:22:42.039 honor to Gordon Wood for having kept it going so 336 00:22:42.079 --> 00:22:45.789 well in his own career. One point I want to 337 00:22:45.809 --> 00:22:50.630 make is how collegial Gordon Wood was. He assigned me 338 00:22:50.650 --> 00:22:56.170 the article on George Washington in an encyclopedia of the Enlightenment, 339 00:22:56.619 --> 00:23:02.009 where he was responsible for articles on the American founding period. 340 00:23:02.980 --> 00:23:06.009 And I didn't have a PhD. I was not on 341 00:23:06.089 --> 00:23:09.730 anybody's faculty. I had written a biography of George Washington, 342 00:23:10.410 --> 00:23:13.029 but Wood had read it and liked it, and he 343 00:23:13.589 --> 00:23:17.119 thought I could handle this task. And when I submitted 344 00:23:17.240 --> 00:23:20.559 my little article, he told me I was on time 345 00:23:20.599 --> 00:23:25.319 and a little bit short. He spoke as if academics 346 00:23:25.400 --> 00:23:29.460 don't typically do this. I'll defer to my fellow panelists 347 00:23:29.539 --> 00:23:33.319 whether that's true or not. I was also always struck 348 00:23:33.359 --> 00:23:38.380 by his integrity. I reviewed his Adams Jefferson book, one 349 00:23:38.400 --> 00:23:41.769 of his late books for the Times Book Review. And 350 00:23:41.849 --> 00:23:45.490 this was, I took these two men, these frenemies, they 351 00:23:45.509 --> 00:23:48.750 were friends, then they were enemies, then they became friends again. 352 00:23:48.769 --> 00:23:55.329 These long intertwined careers. And he described them, took you 353 00:23:55.369 -->

00:23:59.839 through the events, and pass judgment on them. And it 354 00:23:59.880 --> 00:24:04.220 was clear to me as a reviewer that he liked Adams. 355 00:24:04.609 --> 00:24:09.410 He sympathized with Adams. There was something about Adams' realism, 356 00:24:10.049 --> 00:24:16.769 his occasional almost cynicism, his refusal to be blinded or 357 00:24:16.849 --> 00:24:22.269 buffaloed that really appealed to Gordon Ward. But the conclusion 358 00:24:22.309 --> 00:24:31.640 of the occasional airy-fairiness and abstractions that were utterly unreal 359 00:24:32.339 --> 00:24:35.460 and that needed James Madison to kind of tug him 360 00:24:35.519 --> 00:24:39.980 down a little bit. But it was Jefferson who understood 361 00:24:40.000 --> 00:24:44.339 the country that they both led better than Adams did. 362 00:24:45.299 --> 00:24:48.109 And I thought that was an example of arguing against 363 00:24:48.160 --> 00:24:54.799 his own temperament, really. And that was a very impressive performance. Now, 364 00:24:54.839 --> 00:24:58.079 the final thing that struck me, it's been mentioned already, 365 00:24:58.119 --> 00:25:02.119 but when the 1619 Project was sweeping the world all 366 00:25:02.160 --> 00:25:07.069 before it, this was the summer of George Floyd and 367 00:25:07.160 --> 00:25:11.650 who could stand up to it? But on Twitter, I 368 00:25:11.710 --> 00:25:16.730 was seeing these posts by the Fourth International, which is 369 00:25:16.829 --> 00:25:22.130 the Trotskyist organization. And for some reason, they were collaring 370 00:25:22.190 --> 00:25:27.539 American historians to resist the 1619 Project. They did more 371 00:25:27.660 --> 00:25:31.039 effort on this than anyone else I saw. Why? I 372 00:25:31.329 --> 00:25:37.730 have no idea. Maybe they think identity politics disables worker solidarity, 373 00:25:38.369 --> 00:25:42.049 or maybe they think that the bourgeois revolution must succeed 374 00:25:42.109 --> 00:25:46.410 before the proletarian revolution can succeed. But for whatever reason, 375 00:25:46.890 --> 00:25:50.490 they were getting big deal American historians to push back 376 00:25:50.589 --> 00:25:54.619 against the 1619 Project. And Gordon Wood was one of 377 00:25:54.680 --> 00:25:59.430 their first catches and one of their most eloquent exponents 378 00:25:59.529 --> 00:26:04.619 of the idea that 1619 Project got it wrong. So 379 00:26:04.700 --> 00:26:09.930 those were some of my interactions with him, sadly missed. 380 00:26:12.599 --> 00:26:15.900 Thank you all. And a reminder to the audience that 381 00:26:15.940 --> 00:26:18.759 we do welcome your questions, but I'm going to start 382 00:26:19.000 --> 00:26:21.259 with a couple of questions for the panel, and you 383 00:26:21.359 --> 00:26:25.779 should just feel free to jump in as you see fit. 384 00:26:25.819 --> 00:26:28.680 In 1988, Gordon Wood wrote that the meaning of the 385 00:26:28.720 --> 00:26:33.329 Constitution has changed and will continue to change. But he 386 00:26:33.380 --> 00:26:37.509 also said, in our choice of interpretations, we are limited 387 00:26:37.569 --> 00:26:42.190 by history, by the conventions, values, and meanings we have inherited. 388 00:26:42.809 --> 00:26:46.069 What is your understanding of his view of originalism? 389 00:26:47.769 --> 00:26:50.490 Maybe I should say something about that at the outset. 390 00:26:50.690 --> 00:26:56.049 I think that Gordon was sympathetic to originalism because it 391 00:26:56.150 --> 00:27:00.710 places front and center the Constitution of 1787 and the 392 00:27:00.730 --> 00:27:05.329 Bill of Rights. And he, I think, regarded those documents 393 00:27:05.430 --> 00:27:10.349 as profoundly important and profoundly significant. And so I think 394 00:27:10.369 --> 00:27:14.289 he was sympathetic to the idea of originalism. I know 395 00:27:14.349 --> 00:27:18.430 he did not always agree with the practitioners of originalism. He, 396 00:27:18.490 --> 00:27:22.039 from time to time, disagreed with Justice Scalia or with 397 00:27:22.099 --> 00:27:26.119 Justice Thomas. But I think that he thought the Constitution 398 00:27:26.420 --> 00:27:31.119 and the Bill of Rights were, to paraphrase Daniel Webster, 399 00:27:31.140 --> 00:27:35.049 a miracle that had happened once in 6,000 years and 400 00:27:35.109 --> 00:27:37.569 that we should cling to because it might never be 401 00:27:37.670 --> 00:27:42.529 repeated again. One thing that's worth noting about originalism that 402 00:27:42.750 --> 00:27:48.250 I think Gordon believed is that the United States was, 403 00:27:48.849 --> 00:27:54.660 in 1776, the first country to declare that all men 404 00:27:54.720 --> 00:27:58.740 were created equal and had a right to life, liberty, 405 00:27:58.779 --> 00:28:03.559 and the pursuit of happiness. We established the first democracy 406 00:28:03.619 --> 00:28:07.049 in the world and the first written constitution in the 407 00:28:07.109 --> 00:28:12.990 world Our Constitution is the oldest constitution in effect in 408 00:28:13.029 --> 00:28:17.089 the world today. It's also the shortest constitution in effect 409 00:28:17.130 --> 00:28:20.799 in the world today. And those two facts are probably interrelated. 410 00:28:20.880 --> 00:28:24.759 The Constitution does have some general phrases to it, and 411 00:28:24.779 --> 00:28:27.079 that's probably part of why it has lasted as long 412 00:28:27.119 --> 00:28:30.740 as it has. But the country the Constitution created and 413 00:28:30.799 --> 00:28:34.990 that the Bill of Rights and subsequent amendments formed is 414 00:28:35.049 --> 00:28:38.460 a country that millions of people want to move to 415 00:28:38.559 --> 00:28:42.220 from all over the world. If we had open borders, 416 00:28:42.700 --> 00:28:45.390 millions of people would move to the United States from 417 00:28:45.450 --> 00:28:52.130 Latin America, from Asia, from Eastern Europe, and from Africa. 418

00:28:52.750 --> 00:28:56.390 In the last 30 years, 3 million Nigerians have moved 419 00:28:56.430 --> 00:29:02.029 to the United States, notwithstanding our troubled race relations at times. 420 00:29:02.769 --> 00:29:06.029 So I think Gordon really venerated the Constitution, thought it 421 00:29:06.069 --> 00:29:09.329 was a very special document, and I think he was 422 00:29:09.390 --> 00:29:13.559 happy about the work on originalism. He often told my 423 00:29:13.619 --> 00:29:16.660 friend Akhil Amar that he thought that Akhil was his 424 00:29:16.740 --> 00:29:21.200 successor in the kind of scholarship that he wrote, because 425 00:29:21.259 --> 00:29:24.480 Akhil wrote books about the history of the original meaning 426 00:29:24.519 --> 00:29:28.299 of the Constitution. So I think Gordon was broadly sympathetic 427 00:29:28.359 --> 00:29:33.509 to originalism, although not agreeable necessarily with every originalist position 428 00:29:33.569 --> 00:29:34.630 taken by a justice. 429 00:29:37.230 --> 00:29:41.319 Well, you know, two things about originalism. is that originalism 430 00:29:41.480 --> 00:29:46.759 itself embodied some variety. You see this in the interpretations 431 00:29:46.779 --> 00:29:51.289 of Justice Marshall, the decisions of Justice Marshall. And sometimes 432 00:29:51.349 --> 00:29:56.130 he's using originalism of the text, as in the Dartmouth decision, 433 00:29:56.829 --> 00:29:59.650 where he says, well, when they were thinking about contracts, 434 00:29:59.690 --> 00:30:02.900 they weren't thinking about college charters. But if it falls 435 00:30:03.000 --> 00:30:06.000 under the meaning of the words, then we have to 436 00:30:06.119 --> 00:30:10.700 follow the words. Other times, he does originalism of intent. 437 00:30:11.420 --> 00:30:16.009 Barron v. Baltimore, one example. So you can see both 438 00:30:16.130 --> 00:30:19.289 things that work very early on. The other point is 439 00:30:19.309 --> 00:30:23.410 that originalism includes the amendment process. And we had three 440 00:30:23.490 --> 00:30:29.009 Civil War amendments, which were very consequential. So originalism itself 441 00:30:29.329 --> 00:30:31.930 is not a constricted garment. 442 00:30:32.910 --> 00:30:36.119 That's absolutely right. And I think the core of Gordon 443 00:30:36.160 --> 00:30:39.700 Wood's criticism of originalism in the creation of the American 444 00:30:39.740 --> 00:30:47.200 Republic was that the founders disagreed about all the key ideas, sovereignty, representation, 445 00:30:47.220 --> 00:30:52.069 the separation of powers. They're transformed from 76 to 87. 446 00:30:52.069 --> 00:30:54.890 At the convention, the founders thought about them. That's the 447 00:30:54.950 --> 00:30:58.619 point of the central battle between Hamilton and Jefferson on 448 00:30:58.630 --> 00:31:03.279 judicial interpretation, which is not between originalism and non-originalism, but 449 00:31:03.339 --> 00:31:07.039 between liberal and

strict construction of the Constitution. And there's 450 00:31:07.079 --> 00:31:11.460 no single original understanding. That idea was essentially contested from 451 00:31:11.480 --> 00:31:13.859 the beginning, and Gordon Wood felt that most of the 452 00:31:13.900 --> 00:31:19.079 large ideas about which originalists disagree today are ones about 453 00:31:19.099 --> 00:31:22.000 which the founders themselves disagreed. He was a bit sharper 454 00:31:22.079 --> 00:31:25.980 when originalism launched. I think he reviewed Justice Scalia's matter 455 00:31:26.019 --> 00:31:29.660 of interpretation, and he admired Justice Scalia's textualism, but he 456 00:31:29.700 --> 00:31:33.069 said that the discretion that Justice Scalia wanted to rein 457 00:31:33.119 --> 00:31:37.190 in went back to the founding, and that expansive judging 458 00:31:37.269 --> 00:31:40.910 is not a modern departure from the founder's design. He 459 00:31:40.990 --> 00:31:46.230 did believe, as a historian, that history is complicated and 460 00:31:46.269 --> 00:31:50.700 has no simple answers, law office history. He said history 461 00:31:50.740 --> 00:31:54.019 is much too complicated to be used effectively by judges 462 00:31:54.059 --> 00:31:56.500 and the courts. Judges have to invent another kind of history. 463 00:31:56.559 --> 00:32:01.000 We call it law office history or history light. So 464 00:32:01.039 --> 00:32:04.559 he was certainly not in any way a partisan opponent 465 00:32:04.660 --> 00:32:09.309 of originalism. As Steve said, he was hardened by the 466 00:32:09.349 --> 00:32:14.690 fact that history is now centrally relevant in constitutional interpretation. 467 00:32:15.269 --> 00:32:18.490 because it required Americans to learn about the complexities of 468 00:32:18.539 --> 00:32:22.299 history and to debate them in historical and textual terms, 469 00:32:22.980 --> 00:32:27.420 rather than with reference to non-historical features like moral philosophy. 470 00:32:27.720 --> 00:32:30.900 But it is important to remember that central point that 471 00:32:30.920 --> 00:32:34.400 he was skeptical of the idea that there's ever one 472 00:32:34.500 --> 00:32:38.660 single original public meaning about any of the large principles 473 00:32:38.920 --> 00:32:40.569 about which we debate today. 474 00:32:40.589 --> 00:32:44.430 I will say on a humorous note that He expressed 475 00:32:44.490 --> 00:32:47.809 happiness to me about the interest in originalism because he 476 00:32:47.869 --> 00:32:50.279 said it was very good for sales of his books. 477 00:32:52.019 --> 00:32:55.920 It stimulated interest in the founding and all the founders. And, 478 00:32:56.480 --> 00:32:59.160 of course, Gordon, in addition to writing The Radicalism of 479 00:32:59.200 --> 00:33:02.599 the American Revolution and The Creation of the American Republic, 480 00:33:02.700 --> 00:33:06.279 also wrote a biography of Benjamin Franklin, one of the 481 00:33:06.319 --> 00:33:10.099 most admired of the framers. And then also a book 482 00:33:10.180 --> 00:33:15.480 about the Adams-Jefferson relationship, which is a fascinating study as well. 483 00:33:15.619 --> 00:33:19.109 I think he thought the interest in originalism was good 484 00:33:19.160 --> 00:33:21.130 in that it caused people to look at his books, 485 00:33:21.190 --> 00:33:23.230 but he didn't always agree with what the courts were 486 00:33:23.250 --> 00:33:23.829 doing with it. 487 00:33:24.130 --> 00:33:30.329 So springboarding off what Professor Rosen said about Gordon Wood's 488 00:33:31.349 --> 00:33:36.250 skepticism about the use by lawyers and judges of history 489 00:33:36.690 --> 00:33:39.980 in trying to determine the original meaning of the Constitution. 490 00:33:40.440 --> 00:33:43.569 What advice do you think that Wood would give lawyers 491 00:33:43.619 --> 00:33:47.210 and judges who are going to be using history to 492 00:33:47.269 --> 00:33:50.250 illuminate the original meaning of the Constitution? That is the 493 00:33:50.269 --> 00:33:53.049 direction the Supreme Court has taken us. And so we 494 00:33:53.089 --> 00:33:57.569 do have judges and lawyers who are delving more into history. 495 00:33:57.609 --> 00:34:00.509 So what advice, what cautions do you think he would give? 496 00:34:01.509 --> 00:34:04.579 I think he would emphasize the complexities of history and 497 00:34:04.680 --> 00:34:08.699 ask that judges are honest and transparent about it. he 498 00:34:08.780 --> 00:34:12.280 wrote a marvelous book about liberty and power and said 499 00:34:12.320 --> 00:34:17.250 that for Hamilton and the Federalists, increases in government power 500 00:34:17.329 --> 00:34:21.389 could secure liberty. And for Jefferson and the Democratic Republicans, 501 00:34:21.849 --> 00:34:26.039 every increase in power threatened liberty. So if when construing 502 00:34:26.059 --> 00:34:31.079 a central question involving federalism, whether it's the bank or 503 00:34:31.519 --> 00:34:34.940 Obamacare or any of the cases that have turned on 504 00:34:35.000 --> 00:34:38.719 the proper construction of the Necessary and Proper Clause or 505 00:34:38.760 --> 00:34:42.469 the Commerce Clause, Gordon Wood would ask us to acknowledge 506 00:34:43.110 --> 00:34:47.289 the very different positions of Hamilton and Jefferson. He also 507 00:34:47.670 --> 00:34:50.489 would ask us to acknowledge the many occasions in which 508 00:34:50.550 --> 00:34:54.650 the founders themselves changed their mind and not just quote 509 00:34:55.190 --> 00:34:58.460 one position out of context without acknowledging that they had 510 00:34:58.980 --> 00:35:01.360 an earlier one. This doesn't mean that by any means 511 00:35:01.400 --> 00:35:05.360 that history is not useful in deciding cases, but to 512 00:35:05.400 --> 00:35:09.630 pretend that that there was not fundamental disagreement when there was. 513 00:35:09.650 --> 00:35:12.429 It's just not to be faithful to history. The

more 514 00:35:12.469 --> 00:35:15.210 history you learn, Gordon Wood always insisted, the more complicated 515 00:35:15.230 --> 00:35:17.429 that you think it is. And then once you've acknowledged 516 00:35:17.650 --> 00:35:20.929 the complexity of the debate, then you can, as a judge, 517 00:35:20.989 --> 00:35:24.590 make a decision based on other considerations, text or precedent 518 00:35:24.630 --> 00:35:28.050 or the weight of the evidence, or decide that really 519 00:35:28.090 --> 00:35:32.059 there was one side that won at the convention. And 520 00:35:32.099 --> 00:35:35.099 that was Marshall's point in the back case. He had 521 00:35:35.179 --> 00:35:39.170 before him Hamilton and Jefferson's competing memos over the bank, 522 00:35:39.190 --> 00:35:41.849 and then paraphrased Hamilton almost word for word in his 523 00:35:41.949 --> 00:35:45.349 famous thoughts about let the end be legitimate. If it's 524 00:35:45.389 --> 00:35:49.150 not inconsistent with the Constitution, you can imply the power. 525 00:35:49.349 --> 00:35:52.110 And Jefferson wasn't at the convention, and Marshall believed that 526 00:35:52.150 --> 00:35:56.829 the Hamiltonian view was the one that prevailed. But we're 527 00:35:56.869 --> 00:36:01.090 seeing an awful lot of completely conflicting historical narratives in 528 00:36:01.150 --> 00:36:04.269 recent Supreme Court decisions. In the birthright citizenship case, it 529 00:36:04.309 --> 00:36:07.780 was just fascinating to see Chief Justice Roberts and Justice 530 00:36:07.800 --> 00:36:12.139 Thomas with utterly different accounts of both the text and 531 00:36:12.159 --> 00:36:16.079 original understanding. And I think Wood would emphasize, don't pretend 532 00:36:16.119 --> 00:36:19.119 that one is, that it's clear. The answer is never clear. 533 00:36:19.519 --> 00:36:22.840 Acknowledge both, and then with humility, make a judgment about 534 00:36:23.119 --> 00:36:23.780 which is stronger. 535 00:36:24.820 --> 00:36:28.670 I think Gordon would argue for reading history and immersing 536 00:36:28.710 --> 00:36:32.329 yourself in the history of the founding and of Reconstruction, 537 00:36:33.130 --> 00:36:36.230 and that From doing that, one can really learn something 538 00:36:36.269 --> 00:36:40.449 about the way people thought. And one practical way of 539 00:36:40.530 --> 00:36:44.269 doing that for a busy judge or lawyer that I 540 00:36:44.309 --> 00:36:48.760 would recommend is, in particular, reading some of Aquila Marr's 541 00:36:48.840 --> 00:36:54.039 books like The Constitution of Biography or The Bill of Rights, 542 00:36:54.119 --> 00:36:58.480 Creation and Reconstruction or The Words That Made Us or 543 00:36:58.559 --> 00:37:03.019 Born Equal. Akhil does a very good job of summarizing history, 544 00:37:03.420 --> 00:37:07.820 explaining it, making it relevant to constitutional law. I'd also 545 00:37:08.119 --> 00:37:13.389 recommend reading both Jeff Rosen's and Richard Burkheiser's

books on 546 00:37:13.670 --> 00:37:17.630 the founding or on particular founding officials. We're very lucky 547 00:37:17.670 --> 00:37:19.989 to have them on this webinar, and they've written very 548 00:37:20.050 --> 00:37:24.659 knowledgeably about the founding, too. One thing about originalism is 549 00:37:24.699 --> 00:37:28.420 that the framers of the Constitution are chose to keep 550 00:37:28.500 --> 00:37:33.219 their debates at Philadelphia secret. And they essentially stayed secret 551 00:37:33.300 --> 00:37:37.989 until 1835 when James Madison, who took copious notes, died, 552 00:37:38.550 --> 00:37:42.389 and Madison's notes were eventually released and eventually published and 553 00:37:42.429 --> 00:37:46.289 became widely available. So if one wants to ask what 554 00:37:46.349 --> 00:37:50.070 the original intent of the framers was, their original intent 555 00:37:50.130 --> 00:37:53.070 was that we be governed by the words of the Constitution, 556 00:37:53.780 --> 00:37:57.380 not by the original intentions of the people who wrote them. 557 00:37:57.699 --> 00:38:00.050 This is going back to a point that Richard made 558 00:38:00.389 --> 00:38:05.530 a few minutes ago. And that's, I think, applying the 559 00:38:05.610 --> 00:38:09.190 words that the framers wrote to a world that has 560 00:38:09.269 --> 00:38:12.869 changed in many ways is inherently a very difficult and 561 00:38:13.050 --> 00:38:14.150 demanding enterprise. 562 00:38:15.730 --> 00:38:19.619 Just to comment on the words, one of my subjects 563 00:38:19.639 --> 00:38:23.010 was Governor Morris. I'm There's been a lot of work 564 00:38:23.090 --> 00:38:27.309 recently on how he tweaked the final draft of the Constitution. 565 00:38:28.329 --> 00:38:33.360 He did what he could to make this a baseball 566 00:38:33.440 --> 00:38:37.400 pitching machine that would send slow ones straight down the 567 00:38:37.460 --> 00:38:42.159 strike zone for President Washington and Secretary of Treasury Hamilton 568 00:38:42.199 --> 00:38:45.309 and Chief Justice Markle to knock out of the park. 569 00:38:46.369 --> 00:38:50.389 One of his tweaks on the Fugitive Slave Clause was 570 00:38:50.820 --> 00:38:55.269 is he got rid of the word justly. The draft 571 00:38:55.650 --> 00:38:58.949 that he was working with spoke of a person's health 572 00:38:58.969 --> 00:39:02.909 to labor can be justly returned to those to whom 573 00:39:02.949 --> 00:39:07.289 their services do. Morris got rid of that. They'd already 574 00:39:07.349 --> 00:39:10.369 said person's health to labor. They didn't say slave. But 575 00:39:10.409 --> 00:39:13.050 he did not want the Constitution to be saying that 576 00:39:13.070 --> 00:39:16.289 there was anything just about this. This was a deal 577 00:39:16.349 --> 00:39:21.090 that got made. It is not just. Also, The contracts 578 00:39:21.190 --> 00:39:25.969 clause itself, what's that doing in there? That was debated. 579 00:39:26.590 --> 00:39:29.969 No vote was taken. The delegates didn't come to a decision. 580 00:39:30.500 --> 00:39:33.659 But lo and behold, when the final draft comes out, 581 00:39:34.619 --> 00:39:39.969 Morris's draft, there's the contracts clause. And the Morris scholars 582 00:39:40.050 --> 00:39:42.909 and Hamilton scholars debate, well, which was the one who 583 00:39:42.949 --> 00:39:45.550 stuck it in there? Because Hamilton was also on the 584 00:39:45.590 --> 00:39:48.449 Committee of Style. And so the Hamilton people say, well, 585 00:39:48.469 --> 00:39:50.300 he went up to governor and said, look, you got 586 00:39:50.320 --> 00:39:52.860 to stick that in there. The Morris people say, no, 587 00:39:52.900 --> 00:39:55.840 that was his own idea. But in any case, here 588 00:39:55.880 --> 00:39:59.760 is a very pregnant part of our Constitution that got 589 00:39:59.860 --> 00:40:02.739 smuggled in there at the last minute. Now, they all 590 00:40:03.659 --> 00:40:06.239 signed off on it, right? I mean, no one in 591 00:40:06.260 --> 00:40:10.400 Philadelphia said, oh, wait, what's that doing there? But it's 592 00:40:10.519 --> 00:40:16.409 interesting to learn how some very consequential things words appeared. 593 00:40:16.050 --> 00:40:16.940 Where they now are. 594 00:40:18.340 --> 00:40:22.150 So, Professor Calabresi, I think it's always very helpful when 595 00:40:22.190 --> 00:40:26.710 we're talking about an author and about history to suggest 596 00:40:26.789 --> 00:40:29.789 books that the audience members might be interested in reading. 597 00:40:29.829 --> 00:40:32.190 And so you've just done that. But to bring the 598 00:40:32.250 --> 00:40:34.639 focus back to Gordon Wood, to the extent we have 599 00:40:34.679 --> 00:40:38.380 law students in the audience or young lawyers who have 600 00:40:38.429 --> 00:40:42.099 not yet encountered Gordon Wood's works, and I'll ask all 601 00:40:42.119 --> 00:40:44.900 of the panelists about this, what work or works would 602 00:40:44.940 --> 00:40:46.519 you recommend that they read first? 603 00:40:47.440 --> 00:40:51.699 Well, I think absolutely foundational are The Creation of the 604 00:40:51.739 --> 00:40:56.820 American Republic, and The Radicalism of the American Revolution. Those 605 00:40:56.900 --> 00:40:59.010 are the books for which he won the Pulitzer and 606 00:40:59.050 --> 00:41:04.030 Bancroft Prizes. They're the most comprehensive. I should add that 607 00:41:04.130 --> 00:41:07.269 in some ways they're harder to read than the biography 608 00:41:07.289 --> 00:41:11.849 of Benjamin Franklin or his book on revolutionary characters. And 609 00:41:11.889 --> 00:41:14.369 in part, they're harder to read because Gordon did many 610 00:41:14.429 --> 00:41:17.110 drafts of them. And as you do multiple drafts of 611 00:41:17.170 --> 00:41:20.510 a book, sometimes it does become harder to read. But 612 00:41:20.909 --> 00:41:25.469 in The Creation of the American Republic, He brilliantly

shows 613 00:41:25.769 --> 00:41:30.550 how gradually over a period of 11 years from 1776 614 00:41:30.550 --> 00:41:35.789 to 1787, Americans come up with the idea of a 615 00:41:35.949 --> 00:41:41.460 written national constitution, of a convention to produce that constitution, 616 00:41:41.480 --> 00:41:44.980 and then of the idea of submitting the constitution to 617 00:41:45.059 --> 00:41:51.550 state ratifying conventions for their approval. And that Submitting the 618 00:41:51.590 --> 00:41:54.789 Constitution to state ratifying conventions for their approval is very 619 00:41:54.829 --> 00:41:58.639 important because that's why the text of the Constitution matters 620 00:41:58.699 --> 00:42:01.260 so much and not the intentions of the people who 621 00:42:01.300 --> 00:42:04.400 wrote it. It was only the text that was submitted 622 00:42:04.460 --> 00:42:08.079 to the ratifiers. And I think Gordon believed, and I 623 00:42:08.139 --> 00:42:12.480 think most modern-day originalists believe, that it's the understanding of 624 00:42:12.539 --> 00:42:17.159 the ratifiers of the Constitution or of a constitutional amendment 625 00:42:17.820 --> 00:42:22.530 that governs what the document means, not the understanding of 626 00:42:22.590 --> 00:42:27.880 the authors as privately expressed in legislative history. The Radicalism 627 00:42:27.920 --> 00:42:30.860 of the American Republic is essential reading because it does 628 00:42:30.980 --> 00:42:37.380 show that in 1776, before the Declaration of Independence, every 629 00:42:37.480 --> 00:42:41.750 society in human history had owned slaves. And it's only 630 00:42:42.050 --> 00:42:46.269 after the Declaration of Independence is issued that that abolitionist 631 00:42:46.329 --> 00:42:51.030 societies begin to appear. The New England states abolish slavery 632 00:42:51.289 --> 00:42:55.599 in the 1780s. New York and New Jersey abolish it 633 00:42:55.639 --> 00:42:59.920 by 1800, and Pennsylvania soon thereafter, and it's gradually put 634 00:43:00.000 --> 00:43:04.159 on a road to extinction. So the Declaration of Independence 635 00:43:04.199 --> 00:43:07.519 declaring that all men are created equal appears in a 636 00:43:07.599 --> 00:43:11.239 world where there was slavery in every empire and kingdom 637 00:43:11.420 --> 00:43:15.340 on earth. And it gradually leads to a world where 638 00:43:16.159 --> 00:43:20.400 slavery is rejected. And the idea that all human beings 639 00:43:20.480 --> 00:43:24.219 are born free and equal is a central human rights 640 00:43:24.320 --> 00:43:26.039 idea for all countries today. 641 00:43:27.119 --> 00:43:27.739 Absolutely. 642 00:43:27.760 --> 00:43:31.019 To those, I would add, if you want a third 643 00:43:31.059 --> 00:43:34.469 book to read after the ones that Steve mentioned, The 644 00:43:34.530 --> 00:43:37.349 Empire of Liberty, A History of the Early Republic, which 645 00:43:37.409 --> 00:43:42.360 was 1789 to 1815, is a towering experience.

exploration of 646 00:43:42.380 --> 00:43:47.260 the cultural transformation of the U.S. from George Washington's inauguration 647 00:43:47.300 --> 00:43:51.570 through the War of 1812. And it chronicles the effects 648 00:43:51.710 --> 00:43:55.289 of the change in thought that he put out in radicalism, 649 00:43:55.650 --> 00:43:59.090 which is how a country which was initially envisioned by 650 00:43:59.110 --> 00:44:04.059 elites as a sort of aristocratic, refined republic, democratized into 651 00:44:04.099 --> 00:44:07.079 a nation of individuals. So that's just a towering work. 652 00:44:07.699 --> 00:44:10.699 And then he has a series of wonderful books about 653 00:44:11.159 --> 00:44:14.239 about the founders themselves that combined storytelling, which is what 654 00:44:14.260 --> 00:44:17.039 made him such a masterful historian, with an account of 655 00:44:17.059 --> 00:44:22.460 their ideas. We talked about the Americanization of Benjamin Franklin, 656 00:44:22.639 --> 00:44:26.800 which is so superb. He has a book about revolutionary characters, 657 00:44:26.860 --> 00:44:32.030 what made the founders different, which shows how their preoccupation 658 00:44:32.070 --> 00:44:35.349 with virtue and honor was central in defining their greatness. 659 00:44:35.369 --> 00:44:38.730 I won't give all the books. I know Richard will 660 00:44:38.809 --> 00:44:41.389 want to chime in as well. But among the The 661 00:44:41.429 --> 00:44:43.820 last one I'll mention, which I learned so much from, 662 00:44:44.300 --> 00:44:48.519 is the one I mentioned earlier, Power and Liberty, Constitutionalism 663 00:44:48.659 --> 00:44:52.139 in the American Revolution. It was 2021, and it shows 664 00:44:52.239 --> 00:44:57.000 how American law and legal structures address this core tension 665 00:44:57.059 --> 00:45:00.889 between state authority, individual liberties, and slavery. 666 00:45:02.389 --> 00:45:07.849 Yeah, I'll just agree with Steve. Empire of Liberty, fascinating book. 667 00:45:07.969 --> 00:45:12.170 I reviewed it for National Review. I disagree with certain 668 00:45:12.230 --> 00:45:14.710 things in it. There's a little too much Hamilton as 669 00:45:14.809 --> 00:45:18.369 Snidely Whiplash, but you've all seen the musical, so you 670 00:45:18.389 --> 00:45:23.739 can counteract that. But fascinating stuff. How much Americans drank that? 671 00:45:24.000 --> 00:45:29.960 Absolutely unbelievable how much people drank. Also, I never forgot 672 00:45:30.019 --> 00:45:34.480 this quotation. He quotes some woman who was working in 673 00:45:34.699 --> 00:45:40.500 somebody's household, and she said, I'm not a sarvant. servants. 674 00:45:41.420 --> 00:45:45.880 I'm no servant. So there's both a small d democracy 675 00:45:46.019 --> 00:45:51.400 and also its racial limitation. And I would say, let 676 00:45:51.440 --> 00:45:54.099 me stick up for Hamilton again. Yeah, he thought what 677 00:45:54.119 --> 00:45:56.110 he thought and he said what he said, but he 678 00:45:56.199 --> 00:46:00.070 also wrote for the New York Post, right? He founded 679 00:46:00.110 --> 00:46:03.070 the New York Post. This guy was a journalist since 680 00:46:03.110 --> 00:46:08.230 he was a teenager. And that was the populist medium 681 00:46:08.489 --> 00:46:12.769 of the day, that's the one modern media thing that 682 00:46:12.829 --> 00:46:18.980 existed in the founding era, was newspapers. And America had 683 00:46:19.079 --> 00:46:22.300 more newspapers per capita than any other country in the world. 684 00:46:22.340 --> 00:46:27.010 It had more newspapers absolutely than France had, which was 685 00:46:27.050 --> 00:46:30.909 a much more populist country. And Hamilton was in the 686 00:46:30.969 --> 00:46:35.219 thick of it. He writes 51 Federalist Papers, right? More 687 00:46:35.280 --> 00:46:38.059 than Madison and Jay put together. And he did it 688 00:46:38.139 --> 00:46:41.849 from when he was in St. Croix until his untimely death. 689 00:46:42.650 --> 00:46:44.630 And I've seen the front page of the New York 690 00:46:44.690 --> 00:46:47.530 Post where his shooting was announced. They dropped a little 691 00:46:47.590 --> 00:46:50.670 box in on the front page saying that he shot. 692 00:46:50.730 --> 00:46:53.110 He hadn't died yet. So he lived by it and 693 00:46:53.150 --> 00:46:55.929 he died by it. And that's a very populist thing 694 00:46:55.989 --> 00:46:59.260 to do. I want to say something about Gordon as 695 00:46:59.280 --> 00:47:05.420 a person, if I may, Judge. And two observations in particular. 696 00:47:06.199 --> 00:47:08.440 One is it was pointed out to me at his 697 00:47:08.519 --> 00:47:12.599 memorial service, and I think this is entirely right, that 698 00:47:12.699 --> 00:47:16.320 Gordon spent so much of his life immersed in reading 699 00:47:16.400 --> 00:47:21.510 originalist 18th century source materials that he almost became an 700 00:47:21.739 --> 00:47:28.469 18th century American himself. He had a certain genteel, civilized, 701 00:47:29.130 --> 00:47:35.360 deistic personality. that I associate with the framers. And I 702 00:47:35.420 --> 00:47:38.539 think he was really influenced by all the framing history 703 00:47:38.579 --> 00:47:42.059 he wrote. And he became an 18th century American in 704 00:47:42.119 --> 00:47:44.159 part because of that. And that's part of why he 705 00:47:44.199 --> 00:47:48.000 spoke so powerfully and why he was so charming. Another 706 00:47:48.019 --> 00:47:52.219 thing that I wanted to emphasize is that Gordon wrote 707 00:47:52.960 --> 00:47:57.139 many books and many articles and gave countless academic speeches 708 00:47:57.239 --> 00:48:00.800 and was, as I said, I think the greatest historian 709 00:48:00.960 --> 00:48:04.510 in the 237 years of the Republic. But he never 710 00:48:04.610 --> 00:48:09.090 forgot that he was the son of working-class parents, and 711 00:48:09.130 --> 00:48:12.829 he was very modest.

And that was driven home to. 712 00:48:12.789 --> 00:48:16.070 Me one day when I had lunch with him, and 713 00:48:16.739 --> 00:48:20.139 we were talking about a jury trial, and he said, actually, 714 00:48:20.179 --> 00:48:24.099 as it happens, I just recently served on a jury 715 00:48:24.360 --> 00:48:27.710 in a murder trial. And the trial went on for 716 00:48:27.949 --> 00:48:30.130 six weeks. And I said, what was it like? And 717 00:48:30.170 --> 00:48:34.650 he said, well, it was a fascinating experience. And after 718 00:48:34.710 --> 00:48:37.889 the trial was over, I went out for a beer 719 00:48:38.269 --> 00:48:40.750 with my best friend on the jury. And I asked 720 00:48:40.789 --> 00:48:43.130 him what he thought of jury trial in light of 721 00:48:43.170 --> 00:48:47.369 what he'd just seen. And the friend said that he 722 00:48:47.409 --> 00:48:50.690 was very impressed by it. It made him much more 723 00:48:50.769 --> 00:48:54.030 supportive of the criminal justice system and of the government. 724 00:48:54.769 --> 00:48:59.250 And then Gordon's friend paused and said, Gordon, the amazing 725 00:48:59.309 --> 00:49:02.719 thing about that six-week jury trial is that we reached 726 00:49:02.800 --> 00:49:07.039 basically the right answer in a complicated case, even though 727 00:49:07.079 --> 00:49:10.559 of the 12 of us, only one had graduated from college. 728 00:49:11.380 --> 00:49:14.469 And so Gordon said, and who do you figure that was? 729 00:49:14.969 --> 00:49:18.110 And the friend said, oh, the reverend. In order to 730 00:49:18.150 --> 00:49:21.300 go to divinity school, he must have graduated. from college. 731 00:49:22.380 --> 00:49:25.219 So this fellow had no idea he was talking to 732 00:49:25.260 --> 00:49:28.679 the greatest historian in American history, and Gordon wasn't going 733 00:49:28.719 --> 00:49:31.340 to let him know that. And that's just the way 734 00:49:31.380 --> 00:49:35.110 he was. He was a very modest, decent, kind human being, 735 00:49:35.409 --> 00:49:38.199 and that deserves to be part of his what we 736 00:49:38.239 --> 00:49:42.039 remember about him along with all of his many intellectual accomplishments. 737 00:49:42.360 --> 00:49:44.400 Well, I would be remiss if I did not ask 738 00:49:44.480 --> 00:49:47.519 our other two panelists, is there a personal reflection or 739 00:49:47.539 --> 00:49:51.070 a personal anecdote since you did know Gordon Wood that 740 00:49:51.090 --> 00:49:51.969 you'd like to share? 741 00:49:51.989 --> 00:49:57.050 Well, I think I already shared mine, which was his 742 00:49:57.269 --> 00:50:00.750 air of surprise that I submitted a thing on time 743 00:50:00.789 --> 00:50:05.420 and a little short. So perhaps that was a reflection 744 00:50:05.440 --> 00:50:09.869 of Let the professors correct me if I'm wrong. Perhaps 745 00:50:09.969 --> 00:50:12.610 that's a reflection of what academics have to deal with 746 00:50:12.650 --> 00:50:14.050 when they deal

with each other. 747 00:50:15.750 --> 00:50:18.559 I know I've shared many of mine as well, but 748 00:50:18.579 --> 00:50:22.239 I must say I was struck at the conference that 749 00:50:22.280 --> 00:50:26.900 Steve organized, both by his devotion to his wonderful wife 750 00:50:27.019 --> 00:50:29.820 and she to him. They traveled together, and I think 751 00:50:29.860 --> 00:50:32.610 she was an invaluable part of his life as she 752 00:50:32.650 --> 00:50:38.219 was of his life. And then just the simple patriotism 753 00:50:38.260 --> 00:50:40.840 of the man. I think we were just walking outside 754 00:50:41.019 --> 00:50:44.119 for coffee or something like that. And he looked around 755 00:50:44.139 --> 00:50:47.460 the Yale campus and just shook his head and said 756 00:50:47.940 --> 00:50:51.989 something along the lines of the American Constitution is the 757 00:50:52.070 --> 00:50:55.130 greatest and most wondrous achievement for freedom in all of 758 00:50:55.190 --> 00:50:58.610 world history. He never stopped being filled by that sense 759 00:50:58.670 --> 00:51:01.969 of awe and wonder about what a miracle it was, 760 00:51:02.489 --> 00:51:06.489 how it was based on ideas. and how the American 761 00:51:06.650 --> 00:51:11.010 idea itself is what defines us rather than our background 762 00:51:11.150 --> 00:51:13.989 or race, creed, or religion. It was really impressive. 763 00:51:14.670 --> 00:51:18.269 Absolutely. And I think he believed that the subsequent amendments 764 00:51:18.329 --> 00:51:22.119 which had democratized the Constitution were all a carrying out 765 00:51:22.300 --> 00:51:27.380 of the revolution, the American Revolution of 1776, and they 766 00:51:27.420 --> 00:51:30.780 were a fulfilling of the spirit of it. And he 767 00:51:30.820 --> 00:51:37.030 was unabashedly enthusiastic, not just about the U.S. Constitution as amended, 768 00:51:37.570 --> 00:51:41.210 but also about the United States. He didn't actually use 769 00:51:41.250 --> 00:51:45.170 President Reagan's phrase, a shining city on a hill. But 770 00:51:45.210 --> 00:51:47.760 I think that's the way he thought of the United States, 771 00:51:47.889 --> 00:51:50.380 the way he thought of the American Revolution and of 772 00:51:50.440 --> 00:51:54.480 the Constitution as amended. It's a shining city on a hill. 773 00:51:54.579 --> 00:51:58.880 It's a beacon of liberty to oppress people living under 774 00:51:59.000 --> 00:52:02.980 undemocratic regimes all over the world. And that's, at the 775 00:52:03.039 --> 00:52:05.679 end of the day, what explains why millions of people 776 00:52:05.719 --> 00:52:07.820 want to move from other parts of the world to 777 00:52:07.840 --> 00:52:11.659 the United States, and almost no Americans want to move 778 00:52:11.900 --> 00:52:15.360 out of the United States. And that, I think, signifies 779 00:52:15.420 --> 00:52:18.820 the sense in which the Constitution is really accepted and 780 00:52:19.639 --> 00:52:21.110 embraced and revered. 781 00:52:21.820 --> 00:52:24.550 And what an inspiring message Gordon Wood gives us, as 782 00:52:24.590 --> 00:52:29.510 you just summarized so well. On Constitution Day, America's greatest historian, 783 00:52:29.989 --> 00:52:34.969 who explored the complexities and challenges of American history with 784 00:52:35.309 --> 00:52:40.429 unflinching honesty, did not shy away from describing the hypocrisies 785 00:52:40.489 --> 00:52:42.980 of slavery and the many ways in which the founders 786 00:52:43.420 --> 00:52:47.739 fell short of their own ideals. Despite all that, with 787 00:52:47.840 --> 00:52:51.539 more knowledge of the complexities than anyone else, he still 788 00:52:52.139 --> 00:52:55.070 believed that we were indeed a shining city on a hill. 789 00:52:55.090 --> 00:52:57.730 He still felt that it was impossible to conceive of 790 00:52:57.789 --> 00:53:00.909 a greater document for freedom in all of world history. 791 00:53:01.429 --> 00:53:03.409 And in that sense, he gives us optimism in these 792 00:53:03.510 --> 00:53:07.639 challenging times when so many wonder whether the Republic will 793 00:53:07.760 --> 00:53:11.780 thrive and survive. Wood teaches us the founders themselves had 794 00:53:11.820 --> 00:53:15.000 the same concerns. They were not sure whether or not 795 00:53:15.039 --> 00:53:17.400 the experiment would survive, which is why it was from 796 00:53:17.420 --> 00:53:20.590 the beginning an experiment. And yet they gave us such 797 00:53:20.630 --> 00:53:23.730 a gift in this beacon of liberty and this structure 798 00:53:23.809 --> 00:53:28.050 for a civil deliberation. that it has survived for 250 years. 799 00:53:28.159 --> 00:53:31.079 And that gives us confidence that we will continue to thrive. 800 00:53:31.760 --> 00:53:35.559 I think that's such a wonderful way to wrap up 801 00:53:35.639 --> 00:53:39.989 this session. As we are remembering Gordon Wood, as we 802 00:53:40.030 --> 00:53:44.849 are celebrating Constitution Day, as we are still celebrating America 250. 803 00:53:44.849 --> 00:53:47.309 And I think that is just to end on a 804 00:53:47.309 --> 00:53:52.010 very uplifting note. And I thank all of you panelists 805 00:53:52.070 --> 00:53:54.829 for being present here today. I think this has been 806 00:53:54.889 --> 00:53:57.250 a phenomenal remembrance of your friend. 807 00:53:57.710 --> 00:54:00.480 Thank you, Judge. And thank you also, Jeff and Richard. 808 00:54:01.179 --> 00:54:01.659 Thanks to all. 809 00:54:01.679 --> 00:54:02.679 It was an honor to be here. 810 00:54:03.860 --> 00:54:06.860 Thanks for having me. Thank you, Elizabeth. 811 00:54:07.579 --> 00:54:10.159 Well, on behalf of the Federalist Society, I want to 812 00:54:10.199 --> 00:54:14.090 thank everybody, Judge Branch, Steve, Jeff and Richard. Thank you 813 00:54:14.110 --> 00:54:16.829 for sharing your time and expertise with us today. I 814 00:54:16.869 --> 00:54:19.889 want to thank our audience for tuning in. We welcome 815 00:54:19.969 --> 00:54:25.469 listener feedback by email at FedSocForums at FedSoc.org. And as always, 816 00:54:25.530 --> 00:54:27.510 keep an eye on our website and your emails for 817 00:54:27.590 --> 00:54:31.159 announcements about our upcoming events. Thank you again for joining today, 818 00:54:31.280 --> 00:54:34.880 and we are adjourned. Thanks for listening to FedSoc Forums, 819 00:54:35.079 --> 00:54:38.679 a Federalist Society podcast. Be sure to subscribe wherever you 820 00:54:38.699 --> 00:54:41.539 get your podcasts so you won't miss an episode. To 821 00:54:41.579 --> 00:54:44.139 learn more, visit our website, FedSoc.org.