Current Conversations: Constitutional Issues and History, Rick Tepker, Episode #118

Funding for Current
Conversations is provided by University of Oklahoma
President’s Office, University of Oklahoma OUtreach
and, World Literature Today. Welcome to Current
Conversations, I’m RC Davis Undiano. Today we’re going to be talking
about the US Constitution; what it has meant to American
society and culture, and what it still means to the
American way of life today. Our guest for today’s show is
Professor Rick Tepker who is Floyd and Irma Calvert Professor
in Law and Liberty Professor of law at the
University of Oklahoma. He was the first OU faculty to
argue and win a case in front of the US Supreme Court. I hope you’ll join us. ♪Music♪ RC Davis: We’re talking about
the US constitution today. Uh, could we talk about it in
some general terms just a little bit and from a lot of quarters
it really seems like the gold standard for setting up
government and how a culture is going to be where it’s going to
set it parameters. How would you describe the way
we look at it? Tepker: Well I think the first
thing to remember it was the first written constitution that
has lasted. Uh, the written constitution
idea was a new one when the American Revolution occurred and
the first written constitution was the Articles of
Confederation. The constitution we have today
was really a confession of failure. The articles didn’t do a good
job. So initially, it was a basically
a plan a structure for a strong national government. RC Davis: When it says to form a
more perfect union is that a reference back to the Articles
of Confederation? We’re trying to do better what
they didn’t do as well as they should have. Tepker: I think so. It certainly was in the minds of
Madison, Hamilton and most importantly
George Washington, who was absolutely critical to
the shift from the constitutional principles that
had been cited in the revolution but really proved to be very
impractical and then the new constitution was an attempt to
make sure that the national government had adequate power to
handle national problems. And that was the principle
reason. So the first idea the
18th-century document I think was a icon of competent capable
national government. It’s also a 19th-century
document and there you begin to see a transformation in the use
of national power to promote civil liberties and civil rights
and the key for that is the 14th amendment. Just last week as we’re taping
this we had the 150th anniversary of the ratification
of the 13th amendment which abolished slavery. And that produced a
constitutional revolution that really transformed the
constitution from a structural document we really don’t think
much of these days into a source of a lot of litigation. RC Davis: There seems to be a
lot of skepticism deliberate skepticism in the way the
constitution’s set up. The separation of powers so that
one the judiciary the executive branch or the congressman nobody
really gets the upper hand a kind of controlled chaos in a
way. Does that come out of the
enlightenment of the 18th century that… Tepker: Yes I think that’s
Locke, Rousseau… It’s the idea that the best
government would be limited government. It’s the consensus that western
civilization rests on individual freedom, economic liberty, and
intellectual liberty. I think all of those are
enlightenment ideas. RC Davis: So if somebody were
going to see the constitution on say a dry erase board and you
kind of look at its genealogy. There would be a lot of
important documents that really lead into it, the Magna Carta
and you know lots of other things that established this
respect for individuality uh kind of rational relationship to
authority, all of those things. Tepker: I’d hand it over to an
impressionist painter rather than an engraver because
that would be too much to do it in much detail. You have to remember the
constitution is also a document of compromise. Different people had different
visions. When they came together in
Philadelphia and then again and again before the Supreme Court,
different ideas are clashing. So yes, they’re influences but
they’re also compromises. RC Davis: I’ve read somewhere,
maybe I was reading the Federalist Papers recently and
it talked about all the founders, not just sort of
getting together and talking but basically sending away for
books. They a lot of them were reading
up and reading about other forms of government etcetera kind of
steeping themselves cramming for all this. And it’s kind of an exciting
thought to… Tepker: And particularly James
Madison. Uh, James Madison had his own
Monticello; it’s called Montpelier in Orange County,
Virginia and they’ve just finished renovating it in a way
that kind of restores it to the look that Madison had. And he had an upstairs library
and you could see the books that he went and got. And all of the ways in which he
planned and crammed and I think he was the intellectual driving
force in most of the constitution’s features and in
the constitutions defense in the Federalists Papers. RC Davis: So this was really
controversial stuff. These aren’t just wise men
sitting around expressing themselves and then it gets
passed. They are openly arguing and
debating. Its… Tepker: Oh yes, and it passed by
a very thin margin. There’s a wonderful book by
Pauline Maier called Ratification and it really
described beautifully the chaos, the controversy, the confusion
and the absolute inability to draw too much in the way of a
conclusion that there was a consensus. Many of the compromises are
essentially what many politicians understand today
punting the issue down to the road and hoping it will be
resolved by a congress or by a president. RC Davis: Now the original
constitution was ratified what 1789, 88 something like that? Tepker: 1788 ratified. The national government created
by that constitution comes into being in 1789 primarily with the
inauguration of George Washington and the sitting of
the first congress. RC Davis: Now it’s a pretty
short document right, like seven articles. Isn’t that like the world’s
shortest constitution or something like that? Tepker: Well I’d be hard pressed
to know that. Uh, I think that’s probably true
but you’re right basically it’s short, it’s succinct and it’s
hopelessly confusing. Even with its concise words,
there are a lot of open-ended phrases there that cry out for
further interpretation because they’re so ambiguous. What’s the meaning of due
process? What’s the meaning of equal
protection of the laws? What’s the meaning of freedom of
religion? Uh, we debate those because
these are not self-evident self-defining phrases. RC Davis: Now a lot of those
issues you were talking about that got punted down the road
end up in the Bill of Rights and the 27 amendments that get added
to the constitution later right? Tepker: Right. The Bill of Rights story is a
story worth telling just briefly. James Madison having crammed and
drafted a structure basically said we don’t need a Bill of
Rights. The constitution’s adequate
because of the checks and balances. We don’t need these parchment
barriers that’ll be violated at will by majorities. And then someone who had been
his political ally when he served in the Virginia
legislature put his arm around him on a country road in
Virginia and said James we’re going to support your rival
James Monroe unless you support a Bill of Rights. James Madison created the first
great American tradition the flip-flop. He flips over to supporting the
Bill of Rights after having opposed it and he drafts it in
the first House of Representatives. That’s how he got it and he
pulls a little here and pulls a little there and boom. RC Davis: Would it be fair to
say that in the original seven articles there’s a kind of
structure of government being set up and then the values
individual liberties etcetera are talked about much more
explicitly in the first ten the Bill of Rights the first ten of
the 27 amendments. Would that be accurate? Tepker: I think basically. The first document ratified in
1788 is primarily about structure. It’s about the relationship
between the national government and the states. It’s about representation. It creates an executive and a
judiciary. The restrictions on the national
power some of them are procedural and some of them are
substantive or in the Bill of Rights. But for the most part, and this
is one of the truths of American history the basic rights which
we take for granted were left to the discretion of the states. And their own Bill of Rights and
their own state judiciaries. RC Davis: That was one of the
big arguments right? Was the federal government going
to be able to dictate to the states or would the states be
sovereign and wasn’t there something like co-sovereignty
phrase that came out of it? Tepker: Well there were
arguments. John C. Calhoun is primarily
noted for amplifying the concept of state sovereignty, dual
sovereignty is probably the phrase that I think you’re
thinking of. But I think most of his analysis
was an argument about what he wanted the constitution to be
not an argument about what he thought it actually was. He rejected so many of the basic
principles of the original constitution. It’s hard to say he was offering
just an interpretation. He was really offering a
political theory for an alternative. RC Davis: I have read the
constitution before and I’m a reader of the Federalist Papers
but I was going over it this time and it occurred to me
that people don’t read the constitution anymore. Maybe in your world, in the law
world, probably more people read it
than in the general world. But I would say by and large
it’s an unread document and it’s kind of a frightening thought
because it seems like there’s an invisible hand of the
constitution working all the time and the way the press has
this kind of adversarial relationship with congress or
the presidency and the way congress doesn’t necessarily go
along with what the president wants. All of this was pretty much
scripted, right? I mean they wanted there to be
this sort of controlled chaos so that nobody gets the upper hand. Tepker: Boy I was startled to
hear that word scripted. I think there is so little in
American history even American legal history that I would
describe as scripted or predestined or even you know
made clear. Most of the script left open
ambiguities are constitutional debates are usually about
arguments over the sounds of silence. I’ll give you one example. Can the federal government
create a highway? Now today we take that for
granted. Dwight Eisenhower comes back
from Europe and says you know that autobahn is a pretty good
thing we ought to have one. But it wasn’t until the late
1800s that it was clear the federal government could create
such a thing. Until those issues were resolved
by the Supreme Court after the civil war the quest of highways
was almost always a state question. But there isn’t anything in the
document that actually says that. Nobody talks about highways in
the documents so you’re left with this churning chaotic
paradoxical dialogue about how to resolve even so basic an
issue as that. RC Davis: But the minimalism
that I think you keep referring to seems to important the three
branches of government and that they can’t you know subsume each
other’s responsibility, individual liberty, due process,
uh you know it’s not a whole lot of ideas but they’re very very
important and they pretty much come out of that period. Those seem to be what’s… Tepker: They come out of the
18th century strongly modified by practical necessity in the
19th century and even more modified by the reality of the
20th century. The 20th century transformed
the constitution as well because the economy changed
and the culture changed. The congress of the 1930s and
the 1940s was faced with challenges that Madison couldn’t
think of and I think it was ultimately resolved with the
principle that’s compatible with the type of arguments he made
but not without considerable debate. RC Davis: But the idea of
conflict and friction, open competition in a civil
society that’s the part they seemed to have a pretty clear
view of though right? They wanted that to persist. Tepker: Checks, balances,
separation of powers, federalism. RC Davis: Not too much power to
any one entity or any one person. Tepker: Yeah, break up
sovereignty in a way that political theorists of the day
thought was an impossibility, and spread it over as many hands
as possible, so no one can get together and
create a tyranny. RC Davis: So a little bit of a
cumbersomeness in the way it’s set up that it’s all deliberate. Could you give an example of
somebody or maybe a situation that’s testing the separation of
powers? Uh, I think I’ve heard you talk
before about 1952 in Truman would that be a good example? Tepker: Yes it would be. In 1952, uh a case came before
the Supreme Court that dealt a little bit with this. President Truman seized steel
mills in order to keep them operating so they would produce
steel, so other industries could
produce tanks and other… RC Davis: Korean conflict was
just about to happen. Tepker: No it had already
happened. It was right in the middle of
the war and they needed to keep the engine going in order to
maintain strong military force in war that… police action excuse me that had
already begun. RC Davis: Reasonable
you know motivations yeah. Tepker: No declaration of war. The question was could the
president do it? Now the president produced
through his attorney general a pretty strong argument based on
history, but it had no limits. It ignored the friction it
ignored the balances. It ignored the separation of
powers. And the Supreme Court ultimately
said President Truman was wrong. They did so in a majority
opinion that isn’t much read today. There’s a concurring opinion by
Justice Robert Jackson who takes a similar more modulated and
pragmatic view of these things. But the bottom line is
President’s don’t have unilateral power either to
initiate war or to do some extraordinary things outside the
theater of war in the name of military necessity. RC Davis: Like nationalize the
steel industry and say the government now owns it, yeah. Tepker: Or temporarily. He didn’t nationalize it in the
sense it now belongs to us. He just said we’re going to run
it until uh labor and management get together and end this
threat of a strike. It didn’t matter. There was no provision in the
law for seizure. That requires an act of
legislative nature and the president doesn’t have that
power. RC Davis: So this idea of the
separation of powers it’s a kind of ideal in the constitution but
basically throughout history we’re going to see sort of
testing of those limits somebody saying well my what my
responsibility my authority goes further than people thought
before and it’s in that case it was the Supreme Court’s role to
push him back and say no gone too far. So that’s going to keep
happening. Uh, the declaration of war it
just seems so clearly to belong to the congress. Uh is this something that could
face some kind of constitutional test at some point? Tepker: Well it may seem clear
in the text I grant you. But if you look to historical
examples. For the entire country’s
history… Uh, there’s example after
example of presidents using military force for various
national security objectives and so if it’s a clear principle in
the text it’s honored in the many many breaches of the
principle in real history. Jefferson, James Knox Polk in
the Mexican War, Lincoln in the Civil War,
Franklin D Roosevelt selling destroyers to Churchill. Uh Cuban missile crisis,
Vietnam, uh it’s really a very strong
list of non-judicial precedents that make it clear that we
expect our presidents to take care of crises. That doesn’t mean that congress
doesn’t have a role. It’s their function I think to
define the diplomatic state of affairs and that is requires in
certain circumstances a declaration of war. When you don’t have a nation
that is causing trouble as in the case of ISIS you have to do
something besides a declaration of war. It requires a different set of
words. But they still need to act and
recognize the situation. RC Davis: It sounds like you’re
complicating on purpose our model quite a lot. So if we’re going to model. Tepker: I’m not doing that. RC Davis: If we’re going to
model what the how to think about the constitution well put
the constitution on the table well that’s not enough. Put the amendments there okay
that’s not enough. Is that enough and I think
you’re saying well there’s a whole long history of case law
and Supreme Court decisions about the constitution put that
there that’s going to color history itself is going to color
it. Tepker: But also practices. RC Davis: Also practices. Tepker: That do not actually
result in specific cases yes I think that’s part of the way in
which our principles and our understanding of the
constitution are developed. RC Davis: Maybe we could go to a
current case and talk about this. As I read the 14th amendment and
equal protection under the law seems like a pretty
straightforward thing. And yet I think about
affirmative action and the way it works and isn’t there a case
pending right now? Tepker: The Fisher Case. RC Davis: Fisher v. the
University of Texas at Austin. Tepker: Uh, the Fisher case is
the latest in a series of cases going back 30 or 40 years. Asking when is it permissible to
take race into account in order to eliminate the effects of past
racial discrimination and racism. And you’ve got a few people
Justices Scalia and Thomas notably who say never ever take
race into account figure out another way to do it. And you’ve got a larger group of
justices over the years who say no sometimes in order to have an
adequate range of appropriate remedial options to deal with
race you have to take race into an account. Just now just now the doctrine
is very heavily pointing in the direction of the Scalia/Thomas
view. Uh… but one of the questions
in the current case is whether they are going to have a fairly
absolute categorical uncomplicated principle say no
race discrimination by government at all. RC Davis: Or they could send it
back and say maybe we need more information or a narrower ruling
that just really pertains to Fisher v. Texas and doesn’t
have any implications beyond that. Tepker: Right, those would not
create headlines. RC Davis: Right. Tepker: The… go ahead. RC Davis: What would the
argument be for not ever taking race into account? Tepker: Well, I think there’s a
very strong theoretical argument in favor of that. The text the whole principle of
race discrimination the history of race discrimination suggests
that we don’t use race very well in any of our decisions making
processes but it’s a theoretical argument matched against our
argument based on reality and practicality. Sometimes to eliminate racial
discrimination by a decision maker you have to set up an
objective standard of behaviors that it can only be measured by
whether or not uh racial preferences are actually
occurring and racial discrimination is actually
occurring. And the usual response of most
civil rights agencies is to have a limited careful role for
racial preferences in remedial efforts. I know those words probably
don’t add up to much clarity. But that’s partly because the
Supreme Court has rendered decisions that are themselves
compromises and I’ll point out one other thing out. The phrase equal protection of
the laws doesn’t really give us much in the way of [inaudible]
guidance for resolving it. Now Justices Thomas and Scalia
say they’re originalists. The truth is there isn’t any
clear original understanding surrounding that phrase that
says no to affirmative action. The closest thing you’ve got are
pieces of legislation passed at the time the 14th amendment is
being considered in favor of Freedman’s Bureau which provided
social services solely to former slaves in hopes of
integrating them into society because we did that job so badly
and they’ve done it so badly over the years there is still
remedial efforts that must occur. RC Davis: Let me let me test
whether I get this the argument that you’re talking about right
now. Uh, a theme I’ve seen a lot in
legal documents is this sort of viewpoint mutual goal. And I think this must go back to
the 18th-century notion of the categorical imperative. Take some contract and then
elevate it so that it applies to everybody and look at the
results. And if you can’t apply it to
everybody and you don’t like the result its not a fair
application then you probably don’t want to stay with it. So there’s this there seems to
be a goal of trying to set something up so you could say
always in all cases this is what we’re going to do. Tepker: Well I agree that
neutral principles are an important ideal in the law but
its awfully hard to actually follow that motif through
litigation and apply it in a real world case. RC Davis: History is on that
table too with everything else. Tepker: History is on that
table, uh evidence of what would or
would not happen with a particular judicial ruling. But I agree with you when the
courts doing its job right the law should not be about who’s ox
is being gored. RC Davis: I mean if you’re
anticipating who somebody’s going to who’s going to be
offended by a particular action what I’ve seen so often is the
court backs up and says no no no don’t go that direction set it
up so that its viewpoint neutral. It works for everybody. Tepker: The viewpoint neutral
throws me off that’s more a term that I think comes out of first
amendment analysis than equal protection analysis. But there is this separate
concept called neutral principles that I think does
appropriately describe what you’re talking about
functionally. RC Davis: So now the case that
you’re talking about Fisher v. The University of Texas that has
been argued in front of the Supreme Court and twice and
we’ll get a ruling on the current argument when? Tepker: Before June. RC Davis: Before June. Tepker: Before June 30th. RC Davis: Okay, so affirmative
action seems to be actively on the table and we’re rethinking
that. Uh, freedom of religion or
protection of religious rights. Isn’t that another one that
seems to be prominent out there now a lot of cases are going
through the Supreme Court dealing with that. Tepker: Yes, and I think uh a
special issue associated with that is how do various measures
designed to promote racial equality, gender equality, or
equality based upon sexual orientation weigh against free
exercise rights and freedom of religion. And that’s going to be an issue
over the next few decades. It’s going to produce a lot of
cases. RC Davis: There’s a case and I
don’t know if this has constitutional implications but
Zubik v. Burwell. Isn’t that like a consolidation
case? There are in fact a lot of cases
that will be affected in the way the court rules over Zubik v.
Burwell. Would you talk about that a
little bit? Tepker: Well depends on what
they do but yes. Your viewers might know it
better by a different name. Uh, Society of Little Sisters
Home for the Aged and boy it takes a long time to tell the
whole story. First of all this is an
outgrowth of the Obama care issues but more generally its an
outgrowth of an idea going back to the 70s that women deserve
equal compensation for their work. And equal compensation requires
good medical benefits through and employer plan. RC Davis: Healthcare. Tepker: Healthcare. And that includes preventive
care which may include birth control. Unfortunately, some employers
primarily non-profits object to being forced to pay for birth
control on various religious grounds. The Supreme Court has said they
have a legitimate concern there based upon the Religious Freedom
Restoration Act. Having lost the case the Hobby
Lobby case the Obama Care the Obama Administration uh arranged
Obama Care to provide the services to the women without
cost to the employer. If the employer sites their
religious reasons. Right now in this case
basically, the employers are saying the
requirement that they claim a free exercise right is an undue
burden on their religious freedom. Historically, that argument I
think is laughable. RC Davis: And the Obama people
are saying how do we know that you have a problem with it
unless you tell us? Tepker: And free exercise
traditionally has said it’s up to the person making the claim
to prove the sincerity, authenticity, and centrality of
their beliefs. So I think they’re going to have
a hard time writing an opinion for the Society of Little
Sisters as harsh as that may sound but I think we’re so
politicized right now that I don’t know how the case is going
to turn out. RC Davis: We’ve only got about
30 seconds left. I want you to make a fearless
forecast. Of the things we’ve talked about
or maybe something else entirely. What do you think is going to
appear on the horizon and is going to be problematic probably
dealt with by the Supreme Court several times that people could
look forward to. Tepker: I think the events of
the University of Missouri this year and University of Oklahoma
last year point to conflicts between freedom of speech and
the duty to maintain equal educational opportunity and it’s
going to put perplexing puzzles in the face of university
administrators and faculty and judges for as far as we can see. RC Davis: We’ll get back with
you that and check on that later. Tepker: Alrighty. RC Davis: Thank you very much
for being on the show. I’m especially glad that you
could be with us today. Please join us next time for
more Current Conversations. Thank you for watching. ♪Music♪

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