(light instrumental music) - Coming up next on this special edition of "Arizona Horizon" is a focus on civics.

Former US Senator Russ Feingold joins us to talk about his concerns over efforts to radically change the US Constitution.

And we visit with longtime ASU law professor and legal scholar, Paul Bender.

That's next on this special civics edition of "Arizona Horizon."

- [Newscaster] This hour of local news is made possible by contributions from the Friends of PBS, members of your PBS station.

Thank you.

- Good evening and welcome to this special edition of "Arizona Horizon".

I'm Ted Simons.

ASU's Center for Constitutional Design at the O'Connor College of Law recently hosted former US Senator Russ Feingold, whose latest book is titled "The Constitution in Jeopardy."

In the book, Feingold and co-author Peter Prindiville examine a growing effort to radically change the US Constitution.

We spoke with Russ Feingold about this constitutional concern.

Thanks for being here.

- Good to be back in this great state of the Grand Canyon, and the Superstitions, where I've hiked, and especially my late friend John McCain.

- I was gonna say yes, John McCain, probably very many memories for you.

Thank you for coming on.

Congratulations on the book.

It's been out a while, but congratulations on the, it's a great read.

It reminds me of my political science days, these type, but it's a good read, and it really deals with Article V of the Constitution.

Explain, please.

- Yeah, most people don't think about Article V, even constitutional law professors don't think about it very much, but it's the way that we are able to change the Constitution.

And there's only two ways.

One is the way most people know about, which is through Congress.

It's happened 27 times.

Congress proposes something, and then 3/4 of the states have to ratify it.

But the other way exists too, but it's never been used.

And that is 2/3 of the states can apply for a constitutional convention where they would be able to propose amendments.

And it's a very different thing.

- Why was this, this two-pronged approach, why was this designed by the founders?

- Well, they had a little problem.

They had to ratify this thing.

They had to get it through in Philadelphia.

And Hamilton didn't want there to be any convention proposal at all.

But Virginia and a number of other states said, "Well, we're outta here if there isn't a way that we can have a convention outside of Congress."

So in the end, at the very last couple of days, in 1787, they said, "All right, we'll have these two ways to do it."

And I think they expected that both of them would be used.

But so far, throughout the whole history of the country, only the congressional route has been used.

- Yeah, what, 27 amendments we got going here?

And we'll talk about the fact that there probably could and maybe should be more, but no conventions, zero, zippo.

Why?

- Well, there could've been one right away, because people thought there should be a Bill of Rights.

And James Madison said, "Well, we'll just do it through Congress."

And they did it right away.

And then there were very few until the Progressive Era, when there were amendments.

But they were basically motivated in part because of fear that there was going to be a constitutional convention, that would create the direct election of senators, a woman's right to vote, and prohibition.

But in modern decades, it's been mostly conservative movements that have been seeking a constitutional convention to either get a balanced budget amendment or term limits, or more disturbingly, this current movement that I think would basically gut the whole Constitution.

- Well, and that's what I wanna get to, because your book pretty much outlines all of this.

It's a very good job of doing that.

But the convention aspect, nothing has happened so far in our country's history, because it seems like once you open that box, you don't know what's gonna come outta there.

You could literally change the Bill of Rights.

- You've said it perfectly.

That's the problem.

This thing is wide open.

There are some of the people in these groups, the Convention of the States group claim, "Oh, no, no, you can limit it.

Don't worry about it.

Everything's gonna be fine."

But most legal scholars agree there is no language at all.

There are no rules at all.

They could simply have a convention, and it would be done on a majority vote of the states.

In other words, each state would get one vote.

So California would get the same vote as Wyoming.

And we would end up with an extremely conservative document that would gut the ability of the federal government to deal with everything from COVID to climate change to problems with clean water.

And that is exactly what they're planning to do.

They've had mock sessions where they show that's what they're going to do.

And we're here to say people should be aware of this.

- I was gonna say, this is more than just talk here.

They've actually, as you mentioned, they've had rehearsals and the whole nine yards.

- Huge rehearsal in 2016, and they just did another one.

They passed and cheered wildly the idea that 20, a majority of the state's legislatures could simply vote to override any act of Congress or any administrative rule, just by majority vote of 26 states.

And that would greatly weaken the ability of our country to function as one unit.

- You mentioned the legal scholars.

Some say, you know, it can only be targeted to certain things.

Others say, you open the Pandora's box.

We really don't know, do we?

- We don't know.

And it doesn't appear that either Congress or even the Supreme Court has any power to decide.

James Madison took a look at this provision.

He said, "We have to do this, but there don't seem to be any rules."

And there are no rules.

So we need a constitutional amendment to fix this.

- Fix, an amendment to fix the fact that you can have an amendment.

- Amendment to amend the amendment for this.

- Yes, recursive there.

But the idea, according to your book, the idea was to get more power, and keep that power with the people.

Can that idea survive when the people are as divisive as they are now?

- Well, it's very hard in this environment.

And the problem is, is what they wanna do is use gerrymandered legislatures.

And the people who would be the delegates would be people from these very conservative legislatures that don't even reflect the people in their state.

We have this problem in Wisconsin, where we have democratic office holders, but the legislature is not very representative of the people because of gerrymandering, because of malapportionment.

So that's the problem.

What you'll have is a crisis where this thing will be passed, but most of the people in the country will consider it not to be a legitimate document.

- You mentioned this is a crisis.

How close is this to actually happening?

- Much closer than you would think.

Yesterday the Speaker of the House said that he was totally onboard this thing.

Kevin McCarthy said, "I'm for the Convention of the States proposal."

And that means if the Republicans take over the House and the Senate, which is possible, they could possibly say, "Well, we think there's enough petitions here," which I don't think there is, they could simply announce that and call a convention.

So there's a possibility this could happen next year or early 2025.

- But is this, a possibility it could happen, but is this much ado about not all, is this a lot of posturing, a lot of yelling and screaming and getting together and doing rehearsals, and maybe making some money off of it on the side?

Or is this, I mean...

I mean, this is serious business.

I mean, even if you want the Constitution to be changed and overhauled and this sorta, I mean, you open that thing up and you don't know what's gonna pop out.

- I think I wish it was just for show and for raising money.

I think they're dead serious.

Steve Bannon calls this his highest priority.

And if anybody thinks January 6th was just for show, it wasn't.

This isn't just for show either.

They wanna take control of this country.

A minority of people wanna put a stranglehold on this diverse nation in the 21st century by essentially undoing the work of the founders in 1787 to 1789.

- You mentioned 27 amendments so far, obviously zero by way of this constitutional convention.

But the amendments, but when you think about it, what, a couple centuries, a few centuries.

That's not that many amendments, is it?

- Well, we call this twin jeopardies.

One jeopardy is the problem that we already talked about, which is that constitutional convention.

The other thing, it's too darn hard to pass constitutional amendments the regular way.

And in fact, it's not even 27.

Because the first 10 were right away.

That's the Bill of Rights.

There's only been 17.

And we need to change some things.

We need to get rid of the Electoral College.

There's no right to vote in the Constitution.

As I like to say, the founders were very weak on climate change.

They didn't get it.

So we have no provision that has to do with the environment.

So we think that we need to change the rules so that it's somewhat easier, not too easy, but somewhat easier to amend the Constitution, but doing it in a way that won't end up being very biased toward a non-representative group of people.

- Would there be a way to amend the Constitution regarding Constitutional Convention?

You mentioned that you could do that, and we did the recursive thing here.

Is that likely to happen?

- Maybe not, but it has to happen.

We're in a strait jacket, otherwise.

We can't fix this document.

It requires 2/3 of both houses.

And can you imagine how hard it is to get 2/3 of both houses on anything right now?

The president has nothing to do with this.

This is just through Congress.

And then you gotta get three quarters of the states.

So we need to figure out a way to, yes, through that mechanism, get some Democrats and some Republicans to say, look, we have to figure out a way to be able to change the Constitution, otherwise it's gonna die on the vine.

- Last question here.

Is it the difficulty of getting that convention is such that it's never been used, and what you're talking about here would really be a possibility of a radical change, is it difficult enough?

I mean, that difficulty has kept things at bay.

It's kept this threat, if you will, at bay.

Isn't that mean it working?

Isn't it working?

- It's working except for the point now, we haven't had a constitutional amendment for 50 years, and it's becoming pretty clear that it's kind of a dead letter.

We have to remember that the Constitution begins not with the words "We the States," it says "We the People."

And so there has to be a way for the people to say, "We think we need to change this thing."

It goes back to the people.

And so we need to make it easier, but we can't do it in a way that will completely gut the ability of our country to solve its problems.

A fascinating book, "Constitution in Jeopardy."

Senator Russ Feingold, it's good to have you here.

Thank you so much for joining us.

- It was a pleasure.

Thanks so much.

- You bet.

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- I'm Ted Simons, host and managing editor of "Arizona Horizon."

We're doing something that benefits the community.

- What are the conversations that are happening right now?

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(uplifting music) - All eyes are on Arizona, as the political season kicks into high gear.

- Thank you for joining us.

- Paul Bender has lived a remarkable life in the law.

He's influenced untold numbers of attorneys in Arizona and around the world through his career as a professor and one time dean of ASU's law school.

He's also appeared here on "Arizona Horizon" for decades, helping explain and analyze a variety of legal issues.

Paul attended high school in Brooklyn with the late Supreme Court Justice Ruth Bader Ginsburg.

He clerked for two Supreme Court justices, and served as Solicitor General of the United States, and tried numerous cases before the nation's highest court.

To this day, he still teaches at ASU's O'Connor College of Law.

We often speak with Paul about legal issues, but we recently asked him to speak with us about himself.

Good to see you.

Thanks for doing this for us.

- This has been one of the high points of my life in Arizona.

I don't know how I fell into this.

Mike Grant, I guess.

- Yeah.

- We got together and he, as you know, he was a lawyer, and we really used to enjoy doing those things, and I really got to like it.

- Well, you did.

You got to like it, and you've done such a great job, we kept you on after Michael left, we kept you on.

I just wanna start kind of 30,000 feet here.

The law, when I say the law, what does that mean to you?

- It's a system.

It's a way of the people live together according to the law.

It means they have rules, and they try to make the rules reasonable and fair and live by them.

And that's a way of structuring a society.

Without law, if everybody just does what they wanna do at the moment, that can be chaotic and really bad for most people.

So the law to me is a way of organizing life, of taking the things that people do all the time and trying to make sense out of them, and make rules about what you can do and what you can't do.

And they're rules that relate to being a human being, relate to the reasons why you're a human being, and also relate to your relationships with other human beings.

Law is always a conflict between two people.

And so the law tries to bring logic and principle to the resolution of those conflicts.

That's what's attractive to me about it.

- Yeah, I was gonna say, you born and bred in Brooklyn, New York.

I wanna get to the what attracted you to the law here, but born and bred.

What kind of kid were you?

- I don't know.

- [Ted] You don't, can't remember about.

- No, I was a normal kid, I guess.

I pretty much liked school.

- [Ted] Yeah.

- I was not very, I was a good swimmer.

- [Ted] Interesting.

- I was on a high school swimming team, but I was not really athletic.

I played the piano for a long time.

I still do.

And I went to school.

- Yeah, a lot of kids, you know, grew up in, I would imagine Dodger fans and all this kind of business.

- Yeah, I was a great Dodger fan.

- But sports, not entirely your existence when you were a kid.

- No, not entirely.

I was really interested in, I don't know why I really got into the Dodgers.

- [Ted] Yeah.

- But that was just part of my life.

I mean, I was not a fan in any real sense.

- Sounds like a normal kid.

So what attracted you to the law?

- Well, I was originally, when I went, yeah, I am not a person who thinks very much about what he's gonna be doing.

I don't live a structured life.

I just let things happen.

And so there I was.

And in high school, you don't have to make choices, but then you have to decide what you're gonna do afterwards.

So that was pretty easy, because I went to Harvard College.

That was a very good place.

I knew people who had gone there.

I had nothing exact in mind about why you're going to Harvard, why you're going to college.

I was just, because everybody goes to college.

- Right.

- So, but then once college is ending, you have to decide what you wanna do there.

And I was attracted to physics, because again, of the logic in it that really attracted me.

And so when I got to Harvard, I decided to major in physics.

I always liked courses in English especially, but a little bit stuff in government, but mostly math and English were the kinds of things that I was interested in.

So I said, lemme try being a physicist.

And so I majored in physics.

And it became clear to me that I was not a first rate physicist.

I mean, you know, people in my class at Harvard majoring in physics, I mean, you could imagine.

- [Ted] Right, right.

- The brains that were there.

And so I says, you know, I can survive this, but I will not really be good at it.

And then in, where we lived in Winthrop House, the two guys next door were both going to law school.

And there was a course I took as an undergraduate in constitutional law, given by Robert McCloskey, who was a lawyer.

He wasn't on the law school faculty, but he taught law related stuff.

And it was just wonderful, that course.

And that to me was just an, you can think about the way people relate to each other logically according to principle.

That just really attracted me.

So I said, "Hey, why don't I go to law school?"

- Well, and there you went to law school.

- [Paul] And then I went to law school.

- And then from that, before we get too far ahead though, did you go to high school with Ruth Bader Ginsburg?

- Yeah.

Yeah, we were in the same class.

- [Ted] What was she like in high school?

- She was at the top of the class.

I was pretty far down.

I think she was the second in the class.

I remember the guy who was first in the class.

He went to Princeton.

And she went to Cornell, and I almost went to Cornell.

That's where I would've gone if I hadn't gotten into Harvard.

We were not good friends in school.

We knew each other, but she had a whole different, it's a big school, but she was very smart, and she was a real star in high school, as you can imagine.

And she was a wonderful person.

- Yeah.

Yeah.

Okay, so you're at Harvard.

- Yeah.

- All right.

She's off at Cornell or whatever, but you're at Harvard.

The law is, just one class especially, kinda gets your attention.

But there are different aspects of the law.

When did you know constitutional law was kind of the lane you wanted to stay in?

- That's a really good question.

I was attracted to it initially, as I just said before, by taking a con law course in college.

So that was kind of in the back of my mind.

And then you go through law school, it's what, I don't plan anything, I just do what's there.

So there I am in law school.

What do I do after that?

Well, that was an easy problem to solve, because Harvard has a traveling fellowship, which they award to three law school graduates on the basis of their grades.

So I was third in the class, I think.

So I got a Sheldon Traveling Fellowship, so I didn't have to make any choices.

So my wife and I had a wonderful year traveling around Europe, and I was doing absolutely nothing constructive.

I mean, we would go to courts and talk to lawyers, and stuff like that, but it was just, it was a vacation.

It was a honeymoon.

It was wonderful.

But then I had to get a job.

And so I had, before I went on the trip, I had interviewed with a couple of firms, and I took a job at Paul, Weiss, Rifkind, Wharton & Garrison, still a prominent New York firm, very much into theater and the arts, and it seemed like a good place for me.

And so when the Sheldon was up, well, so I have, I was about to go there and take a job, but then people come around, and to law clerks, and law schools come around and say, "Hey, you wanna go teach law school?"

And I decided that that sounded like a good thing to do.

I'm trying to make sense, give you a sensible answer to why I do what I did.

Law school was very enjoyable to me.

I really liked that way of approaching things, especially the way the Harvard faculty did things.

Everything was questioned.

Nothing was there for sure.

And I just, I like that kind of thing.

So I said, "Hey, let's try being a law professor."

And then, because I had clerked for a Supreme Court justice, and also Learned Hand, who was very well known, I had some experience with constitutional issues.

And I had always been interested in it from the beginning.

And so as a teacher, when it became a chance, since I think I started teaching evidence, and I remember Justice Frankfurter was asking me what I was gonna teach.

He was a professor before he went on the court.

And I said, "Evidence."

And I said, "You know, I don't know what to do.

I've never tried a case.

I don't, what am I gonna do?

How am I teaching evidence?"

He said, "Don't worry about it.

You're smarter than most of them."

- That's nice to hear from a Supreme Court justice.

- So, and that was interesting too, but constitutional law was always something that interested me for the reason I've said before.

And so when a chance came to teach the basic con law course, I started doing that.

And that's what I've done ever since.

- Yeah, you went on to Penn, correct?

- [Paul] Yeah.

- Yeah, and then became Dean at ASU's law school.

- [Paul] Right.

- So academia, it sounds to me like you were a kid who got to college, a pretty doggone good college, and was very successful there and moved on to, sounds like academia was always there, whether you knew it or not.

- Well, I never planned to do that, but I liked law school so much.

And I admired a number of people on the faculty.

And so when a chance came to do that, which I had found so enjoyable as a student, I took that chance.

- I can't let you go without talking about attacks on the judiciary in general and concern regarding the politicization of the Supreme Court.

Can you do that in a few minutes for us?

- There should be a concern about the politicization of the Supreme Court, because the Supreme Court's job is to decide things according to the law.

And that means to decide things according to principle.

And I think most people today, not on the court, who think about the court, think it's not deciding things on the basis of principle, but it's decide, oh, they're Republicans, they're appointed by a Republican president, so they do what the Republican Party wants to do.

Or the Democrats, the liberals are doing what the Democrats want to, that's just wrong.

I mean, the whole purpose of the court is to do things on a principled basis, not on a partisan basis.

And the court is been doing too many things on a partisan basis, and it's not good for the court at all.

And it doesn't help to have a president like President Trump appointing people for specific reason.

Hey, we wanna overrule Roe and Wade.

I appoint people to overrule Roe and Wade.

I mean, that's not what the court is for.

The court is to decide things according to basic principles, and to reason about them logically.

And this court has drifted away from that.

- With that said, how confident are you in the strength of the Constitution to withstand assaults, to withstand ethics concerns, to withstand?

How confident are you that this experiment continues?

- Not as confident as I'd like to be.

I've just been amazed at the Chief Justice's resistance to adopting a code of ethics that was judicially enforceable.

I cannot imagine why he is resisting that.

I mean, all the other federal courts have it.

They ought to have it also.

And it's a big problem, because, I mean, these are people who are prominent people, they get to be on the court.

They know a lot of prominent people.

A lot of cases come to them that they know something about.

And they ought to stay away from those, because they have some relationship with the parties.

And they resist having rules like that.

They make up their mind on each individual case, on an individual basis by themselves.

And that's not a good way of doing things.

And so they're losing a lot of respect from the country in doing that.

That's a big problem.

And the ethical problem is a big problem.

I mean, they're much too much into wanting to make money.

Just all of the justices, they all work at another job almost.

They teach during the summer, they go to Greece and teach a law school course, or Rome or something like that.

Nobody used to do that.

And so, and they also appear at conferences and meetings, and they talk about things too much.

They don't spend enough time doing their job amongst themselves, and just doing that.

They've, all of them, to some extent, have gotten a taste for the public law life and being public figures.

And that's a bad idea.

Supreme Court justices should not be public figures.

- Interesting.

Interesting way to look at that.

Well, I'm glad we had some time to talk to you.

I just wanna thank you again for being such a friend of this program, and coming on and helping explain legal matters.

- I'm glad, it's been one of the high points in my life.

- Well, you're excellent at it.

And we'll keep asking you as long as you keep saying yes.

Paul Bender, constitutional scholar.

What a pleasure.

Thank you so much, sir.

- Thanks, Ted.

- We appreciate it.

- I really appreciate it, right.

- And that is it for now.

I'm Ted Simons.

Thank you so much for joining us on this special edition of "Arizona Horizon."

Have a great evening.

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