Question 2: You mentioned a book in the beginning that was about Lincoln and I didn t hear what the title was?

Question 1: To go back to your point on Supreme Court cases being fully settled; what if in the Dred Scott Case, the decision was 9-0, is that significantly different from 7-2? Would that determine if it was fully settled as opposed to 7-2? Professor Sikkenga: Good question. Yes, Lincoln s view was it has to meet all of the criteria, not just one of them. But I think his view would be, if the decision is 9-0, it deserves much more weight by the President; because it means the Supreme Court unanimously agrees. It means that whatever their differences of opinion, they can agree on this issue. And there have been important times in American History where the Supreme Court has handed down unanimous decisions, so Marbury v. Madison, or Mcculloch v. Maryland, which was a case about the power of the Congress to create a national bank which was a big issue at the time. Some of you may remember Richard Nixon s presidency, and Richard Nixon s claim that he could not be investigated while president, because if the president does it, it s not illegal, and that famous line from President Nixon. The Supreme Court held that Bill Clinton could not be sued by Paula Jones while he was president, even though she was suing him for something he did as a private citizen. In all of those cases, the Supreme Court ruled unanimously. And I think Lincoln, in the case for example, with Clinton, they ruled in favor of Paula Jones, the lawsuit went forward and that s when the whole thing with Monica Lewinsky became uncovered, because of the Supreme Court s unanimous ruling. So I think if it s unanimous, Lincoln would say it deserves much more consideration. The more closely divided the Court is, the more a president could say, hmm, if it s only a one vote switch one way or another, should 5 justices really decide the issue forever? I think Lincoln would say no. Question 2: You mentioned a book in the beginning that was about Lincoln and I didn t hear what the title was? Professor Sikkenga: There are some really great books on Lincoln if you wanted to explore him a little bit more. One is, I don t know if some of you know the book or not, it's called Founder s Son, it s a great book written by Richard Brookhiser, I d strongly recommend it. It's about Lincoln s idea of carrying on the legacy of the American Founders, and the principles of the American Founding. It came out about a year or two ago, it s a short book, a paperback book, I saw it down at your Barnes & Noble, actually they have a good history section there. Great book, I would recommend that, if you re interested in more specific things, there s a book called, Lincoln and the Supreme Court, by a guy named Brian McGinty, that was published a couple years back. Founder s Son though is a great introduction to Lincoln, and I would also say a book I would recommend on Lincoln is called Lincoln: A Biography, and it was written by a British guy named Lord Charnwood, but also is interesting because it s probably the best single biography of Lincoln, and I also love it because it has an introduction by my friend and colleague who passed away in August 2015, Peter Schramm. Yes, he has spoken here many times I know, and Peter was a great expert on Lincoln and a lover of Lincoln. I always like to say that he forgot more about Lincoln than I knew, or will ever know, and

especially a lot of Lincoln s good jokes. But that is a great biography of Lincoln I would strongly recommend to you, it s a good read, it s delightful good oldfashioned English. Question 3: Ruth Ginsberg, who I grant you ve heard many people speak on her mental and physical capacity to perform the job at hand, and the monumental responsibility and enormous pressure on her to resign...historically, have there been many judges in that situation where they wouldn t leave because they re so obsessed with the power that comes with it, to where they ve rendered themselves incompetent to serve? Professor Sikkenga: It s actually the plot of a John Grisham book, of all the things! But the example you were giving sir, Judge Douglass, William Douglass, he was appointed to the Court by Franklin Roosevelt in 1939 and did not leave the court until 1975, he was there for 36 years. I think he was the first longest serving justice. By the time we got into the early 70 s it was clear that Bill Douglass had become erratic, let s just say. Not saying that as you get older you get more erratic, but what happened with Bill Douglass was, some of you may remember this from the early 1970 s, Gerald Ford actually declared that if Bill Douglass didn t leave the Court, he might, seeing as he was a leader in the House of Representatives, move articles of impeachment to remove a justice. He ruminated on that in public. Well that sent shock waves out, and the story goes, and we re not sure that it s quite true, but the story goes that the Supreme Court members went to Bill Douglas and said, You know, for your sake, for the Supreme Court s sake, for the country s sake, maybe it s time for you to retire. And Bill Douglass reportedly said, Hell no! I won t go!, OK, before that was a phrase. So, what did they do? Well, they knew that they had to kinda get him off somehow, so the story is that if you want a man to do something, what do you do? They went and talked to his wife. And you know what, he resigned the next week. But the most amazing fact is, after he resigned, the next court s next turn, Bill Douglass showed up. And he said, Well I m Justice Emeritus now. And that s not a real thing. And the rest of his Supreme Court friends, and colleagues of a many number of years, had to say to him politely, Bill, you re not. You can t be here. You need to go home and you need to get a hobby or something. So some justices, yes, have stayed on a while, and have had to be pushed gently to be removed. Audience member: Well I recall the attempted impeachment of Earl Warren. Professor Sikkenga: Sure, and there have been justices, Justice Chase from early in the Republic, was impeached. And this is actually a kind of interesting historical story to show you about people s view of the Supreme Court. The Supreme Court was a very weak institution early in the Republic. John Jay left the Supreme Court to become Governor of New York, because that was a much bigger and better job, than Supreme Court justice. Oliver Ellsworth left to become an ambassador, because who wants to be on the Supreme Court. They didn t even have their own building until 1935 for the Supreme Court. So, they met in the basement of the Capitol Building. So, there were a lot of people who didn t think

the Supreme Court was any big deal in those days. That changed, of course, over time. Question 4: Can you talk a little bit about how the court case on the immigration order that we face now from a more constitutional standpoint? Professor Sikkenga: Yes, the legal standpoint and court case on the 9th circuit ruled against President Trump s immigration order, on the grounds that there may be, well they haven t actually ruled against it. There have been misreports in the media. They ruled that the injunction that the lower court gave- an injunction is an order to stop something from happening- that that should be upheld while the case is being argued. Okay, so it s temporarily on hold, until the case is resolved. You know an example of I think, yesterday, if you saw the news conference, one thing that struck me as to what we are saying here is that the President said that he respectfully, but very seriously, disagreed with what the ninth circuit said, and he called them out on it, and they d been reversed many times. There were many people in the room that were aghast at that- How can you say that about a court?. I personally think that it s fine for presidents to do that. He said, I respectfully disagree, they re wrong, here s why. And I think that s fine. If you may remember, President Obama did the exact same thing in a State of the Union address, where he criticised the Citizens United decision right in front to the Supreme Court as they were sitting there. People were aghast- You can t say that!. The president is a Constitutional officer. If he wants to say that they made the wrong Constitutional decision, he certainly has the right to do that. Abraham Lincoln would have agreed with that. So, on the merits of the case, we are going to wait and see how it unfolds. It s not even close to being done yet, and, frankly, the president may respond by just issuing a different executive order that goes all the way around this case. And again, I think that Lincoln would be entirely in favor of executives responding this way in that kind of a moment. Question 5: There are some conservatives that maintain that progressive justices are more likely to express their view based on their own interpretation of justice, when referring to the Constitution or the law. I have noticed that in the ninth circuit decision. I was wondering if I could have your views of progressives generally on that subject, and the view of the ninth circuit? Professor Sikkenga: There are really two competing schools of Constitutional interpretation on the Supreme Court and the federal courts. One is the view that the Constitution is, should be, a living Constitution, that should be understood in what it means now. And how do you know that? Well, the judges decide that. So, that has typically been associated with progressivism. That came out of the school of progressive thinking, and it still has some adherence to it, including on the ninth circuit.the other view of the Supreme Court and how it should approach the Constitution is called originalism, which is that the Supreme Court understands the Constitution according to its original principles, and understand the text that

way. The ninth circuit is still heavily along the lines of a living Constitution approach. On the Supreme Court we actually have quite a balance. Justice Scalia was a famous originalist as many of you know. Judge Gorsuch has claimed to be an originalist, so he ll bring that same judicial philosophy to the Supreme Court. Abraham Lincoln believed very strongly in the originalist approach to interpreting the Constitution. He thought progress should be made by the political branches. It s not the Supreme Court s job to create social justice. It s the Supreme Court s job to protect the liberties that exist already in the text of the Constitution, and that the political branches should respond by moving the country forward. So for example, when Lincoln became president, how did he want to deal with slavery. If there had been no civil war, what he wanted to do was encourage, starting with the border states, he wanted to encourage the state legislatures to begin gradual emancipation plans, and would have the federal government help pay for those gradual emancipations in places like Kentucky, and Missouri, and Maryland, and then he wanted to sort of move south gradually over time. So, and, but that s not the Supreme Court s job he didn t think. He thought it would be be the political branches, himself and Congress, working on that. And that might account for why the ninth circuit frankly has been overturned so much because they don t really have very many originalists on there. Originalism made a huge comeback in the 1980s. And now, what s very interesting to me as a scholar of these things is, as one famous liberal expert- knowledge law professor, Akhil Amar, at Yale Law School said, We re all originalists now. - that almost nobody ignores the original meaning of the Constitution as a judge now, because it s not considered intellectually respectable anymore. So there has been some push back against this living Constitution approach that was dominant for thirty, or forty, or fifty years, especially in law schools. The case, the D.C. vs. Heller case, you had a 5-4 split decision on the court, but what s interesting to me is, both sides were arguing about the original meaning of the Second Amendment. It wasn t- well here s what the Second Amendment means but we don t care about that anymore. Both sides says, Here s what it originally meant, and they disputed over that. So you can still be an originalist and come to different opinions on the thing. Question 6: If you would remind me, I don t know if it was the Supreme Court or what it was, but with Andrew Jackson and the Indians, the court came out finding that he couldn t do that, and basically he said that they had no power to stop him. Was that the Supreme Court? Professor Sikkenga: That was a case called Worcester vs. Georgia, in 1832, and it was actually Georgia that was allowing the Cherokee Indians to be removed from territory and land that was, in fact, by treaty with the United States, theirs. Went to the Supreme Court, and the Supreme Court ruled in favor of the Indians, and the idea was that, well Georgia s going to have to comply, and Georgia wasn t complying, someone mentioned to Andrew Jackson, and Andrew Jackson famously said, Well, John Marshall has made his decision, now let him enforce it

Questioner: So the only way, I would assume, that Jackson could be stopped, was for Congress to stop him. Would that be the way to stop Jackson? Professor Sikkenga: Well, Jackson was very popular in 1832, right? Lincoln would have said, look, in that particular case, the Worcester vs. Georgia case, Jackson should have abided by that particular decision. He should have, in fact, enforced that particular decision. If he disagreed with the broader interpretation, he could have argued publicly with the Supreme Court. What Jackson actually did, is simply ignored even that particular decision. Lincoln would not have gone that far, in his understanding, but of course, Jackson always said, that is for the state of Georgia to deal with, not me. The ruling was against them. What do you want me to do about it? But there have been many moments in American History like this one that we ve kind of forgotten, along these Jacksonian lines. Question 7: When the Supreme court first started out, they gave them lifetime appointments a lifetime was much shorter back then as opposed to now. Should that be changed now because people on average live longer than they did in the past? Professor Sikkenga: There has been a lot of discussion on that, and there has been a proposed Constitutional Amendment, but never went anywhere, to limit Supreme Court terms to twenty-five years. F.D.R, you remember the Court- Packing Scheme of the 1930s, some of you history buffs remember that. FDR said, in 1937, he went on the radio and gave a fireside chat, where he said, Well, the Supreme Court has been blocking really everything that I ve wanted to do. We need to reform the Supreme Court. He said, at least six of the members are seventy or above. And he said, Once you get to seventy and above, you slow down a lot. So what he said is, I will appoint a helper judge justice for every justice that is seventy or more. This was called the Court-Packing Scheme. So the Supreme Court would have gone from nine people to fifteen people. And of course FDR would have appointed those six, and they would have been FDR s men, as you might expect. What s very interesting is, there was a moment in American history where, even though Congress agreed with FDR that we have to guard carefully the independence of the courts. So we agree agree with you, we don t like what the Supreme Court is saying, but we won t go that far. And he pushed, and pushed, and pushed, and the Democrats in Congress said, we just won t go for it. So the Court- Packing Scheme died by 1938 or so. But FDR was really mad about that, and continued pushing, even after his advisers said stop, give up. Eventually, he appointed those six justices, and by 1942 he had 9-0 decisions in his favor. There s a really good book, if you like FDR, the history of the New Deal, or the controversy over the Supreme Court, by a guy named Jeff Shesol, called Supreme Power: FDR vs. the Supreme Court. It s a great book for some of you who are history buffs. Audience: So does Congress determine the size of the Supreme Court? Professor Sikkenga: Yeah, it s set by law. It s not in the Constitution. The Supreme Court has varied anywhere from four people to ten people. It s been set at nine since 1869, and there have been some calls to say, if we re not going to get

real lifetime tenure, let s increase the number of justices, so that not every fight, not every vacancy is a life or death political fight. I think you may see- it s going to take a long time, because people say once you start fiddling with the terms of the justices, or you start fiddling with the number of justices, they re worried that you re attacking the independance of the Federal Courts. And so, the experience of FDR still lingers in the minds of lots of politicians, who even if they don t like what the Supreme Court says, are very reluctant to bring that up, because of the most popular president of his day, with huge majorities in Congress, couldn t get around this issue. Question 8: I wanted to ask, what can we do as American citizens to make sure that the Supreme Court become less political, since you said Read the Constitution to our children? Professor Sikkenga: That s the first way, because as Abraham Lincoln said, in our Republic, public opinion is everything. If you can get public opinion behind you, and it becomes a sustained majority over time, you will win the political fight. There s no question about that. It s a matter of mobilizing public opinion. But the public has to have an opinion. They have to understand the Constitution, and it s not an easy top-down solution. I think of it as a ground-up solution, where the citizens begin to really understand the meaning of the Constitution. They start having public discussions about it. They write letters to their newspaper, or they talk with their friends about it. Frankly, they educate their children and grandchildren in the principles, and it starts to build. And then guess what? Politicians will reflect what the public wants. And, if the public wants a Supreme Court that scales itself back, and is more modest in its understanding. If they want that over time, they ll get that over time. Audience: But the Constitution seems so political these days... Professor Sikkenga: It is, and it became more political. I think the turning point of our modern times is probably in 1987 with the nomination of Robert Bork. In fact that s become a term, to get Borked. It means to be unfairly attacked once you re nominated for something. It s not like that never happened before, but even in the case when Justice Chase was impeached in the early 1800 s, he was impeached because he was a Federalist making decisions that Thomas Jefferson didn t like. Thomas Jefferson suggested to one of his friends, Isn t there anything that we can do about that guy? So it was a little political and they had him impeached. But what is really interesting is, he went to the Senate. He was impeached by the House, and went to the Senate, and the Senate did not vote to convict him, because even the members of Jefferson s own party said, Okay, the guy has made decisions we don t like, but that doesn t mean that he s engaged in bad behavior. That s the standard of the Constitution, good behavior. Bad decisions aren t bad behavior; those are just bad decisions, and they ended up not convicting him. So, it s been political for a long time, but I think recently in the last thirty years it s become very political, too politicised. But look, part of the reason

is because the Supreme Court interjects itself into a lot of political issues; that if it didn t, there wouldn t be such political controversy over Supreme Court nominees. Audience: Like when Bush was elected? Professor Sikkenga: We could give twenty-two examples of of the Supreme Court interjecting itself on political issues, that if it didn t, people wouldn t get so politically agitated about the Court. The Dred Scott decision is the most infamous. The Supreme Court actually believed it could decide the issue of slavery forever for the United States in one decision. And how did that work out? Not too well. Question 9: We all think that politics is so ugly and awful, and my son asked me, is this what it s always been, nasty business? Do we have reason to be discouraged now? Professor Sikkenga: I have a sticker on my desk when you walk into my office, and it s facing out to the students when they sit down and it says, Politics is a good thing. Now maybe I m a political science professor, so what else would I have on there, right? Aristotle s great insight is where there are people, there s politics. So whether that is offices, or teams, or associations, or even churches, or wherever there are people, there s politics. But politics also has a great side to it. Abraham Lincoln was a very political guy, but he was political on behalf of what was right for the country. George Washington was quite political, but he believed in justice. Sometimes we think that politics is just about power, right, and that it s just an ugly zero-sum scramble for power. Clearly power is a part of politics, but I actually think for the best statesmen, people like Washington and Lincoln, politics is more about justice, about what s right, and they pursue power so that they can do justice. A great example of that would be Winston Churchill, who was a statesman, who understood that the Nazis were evil and had to be opposed, and politics was to be his means to seek justice and save civilization. There s a great story of Churchill, where he was on an airplane riding back across the ocean with Franklin Roosevelt and a few others after a conference, and they were playing poker with some of the airmen who were on the plane. They were stopped in Iceland and Churchill started losing, and got a little angry about it, and FDR looked over at one of the men and said, Hey! and just gave him a look, and the airman said, I m not going to let him win! And FDR leaned over and whispered in his ear, Let him win, he saved civilization. Question 10: Civil wars are probably the worst thing a president can inherit. Do you think that Lincoln had a sense that The Civil War might erupt during his time in office? Professor Sikkenga: He desperately hoped it would not. You know in 1820, Thomas Jefferson actually said the Missouri Compromise was like a firebell in the night, which was an alarm saying now the country was going to be politically divided North and South over slavery, which he feared. He said, Slavery will be the rock on which the Union splits. He said that forty-one years before the Civil

War. In Lincoln s First Inaugural, southern states, many of them had already seceded, but Lincoln actually, in his Inaugural says, just because you ve seceded does not mean that there has to be war. I will not lift a sword against you. If you don t attack us, we won t attack you, we want the Union to remain together, the Union is together, and we won t back down on this, but we re not going to push the issue and there doesn't have to be war. He specifically said, I will not interfere with slavery where it exists, in the states that it exists. He said, I m the president; I don t have the Constitutional authority to do that. So he always distinguished between his personal view, which was I hate slavery and want it to be abolished, and his views as president, which was, I have to uphold the Constitution and the Constitution doesn t give me the power to abolish slavery in the states. He told the states that. Unfortunately they didn t believe him, and that s what caused the Civil War, at that exact moment. Question 11: Earlier you mentioned the rivalry between Adams and Jefferson, then later on in life they had their own letter-writing, so I just wondering what your thoughts were on that relationship? Professor Sikkenga: Can I recommend another good book if you re interested? It s called The Adams-Jefferson Correspondence. It s just a collection of their letters put together. Boy were they smart, in fact, these people were president. In fact they were so smart, that if you ve been Monticello, to Jefferson s home, and you ve seen his tombstone, he wrote on the tombstone, he actually gave instructions for his tombstone and he said, here s what I want on here and not one whit more, so nothing else: Author of the Declaration of Independence, of the Virginia Statute of Religious Freedom, and Father of the University of Virginia. That s what Jefferson wanted on his tombstone, because he thought being president was not as good as those things. He and Adams as you know were great friends in the Continental Congress when independence came about. Adams loved Jefferson. Jefferson was quiet in a room like this, but in committees he was very engaged and energetic. Adams was more like the kind of guy to stand up in a crowd like this and make a speech. So they kind of complimented each other well. They both strongly believed in independence. They both supported the Constitution, but they fell out in the 1790s, and it was a pretty bitter falling out, and then afterwards, was one of the great stories in American history, and some of you know it. Afterwards they were old men who had served their terms as President, and they were out of public life, and they both had a mutual friend named Dr. Benjamin Rush, who was very famous at the time. He was a physician in Philadelphia. He knew them both and he thought it was terrible that they were estranged, so he actually approached, I think he approached Adams first and said, Would you be willing to have me write to Jefferson, and see if he wants to write back to you, so you guys can start talking to each other. And Adams said, Well, I don t think he ll want it, but OK. And he wrote to Jefferson, and Jefferson said, I m delighted to do it. We should have done this years ago. And then they started a correspondence that lasted, oh, ten, fifteen years. And it s collected in this book, and they talk about everything. They talk about politics, life, their wives, their children, Ancient Greek

& Roman history. Literally, everything under the sun, and you can t imagine that these two were famous politicians. They were incredibly learned, very thoughtful, and I think by the end, friends again. Although, I think as you know, they died on the same day. Isn t it amazing? They died on July 4, 1826, the same day. Jefferson died in Charlottesville, Virginia, of course, Adams in Massachusetts, but Jefferson died first. Adams was not yet dead that day, and he didn t know that Jefferson had already died, and so he reportedly said, But Jefferson still lives. But it wasn t true. Jefferson was dead. Question 12: You mentioned that Churchill was a statesman. Who and where are the American statesmen today? I believe it s a real loss. Professor Sikkenga: Yes, it is a real loss. Well, let me say this, if you want to read a great speech on what a statesman is, let me recommend a great speechagain you can Google it, we have it on our website. It s called Oration in Memory of Abraham Lincoln, and it s by Frederick Douglass, the great 19th century abolitionist, who was a great friend of Abraham Lincoln, and, and one of the greatest Americans who ever lived. But he gave a speech saying, Abraham Lincoln is a statesman. Here s why, and he lays out what a statesman is. One of the interesting things he says is that it s very hard to judge statesmen while they re still alive. He says, Abraham Lincoln, at the time, we forget this now, because everyone loves Abraham Lincoln. We forget, Abraham Lincoln was subject to fierce denunciations. His cabinet thought he was a hick from Illinois, which was absolute nowhere in those days. They thought he was an uneducated person, who knew nothing. They thought that all he did was tell stupid jokes, instead of being serious all the time. And Lincoln s response to that was, especially during the Civil War when he would tell jokes a lot was, I tell jokes so that I can laugh. Otherwise, I d be crying, weeping all the time. They just thought he was a fool. They were fancy, sophisticated, establishment people, and he was not. But they recognized at the end that he was a statesman. On his death, Secretary Stanton was famously reported to have said, Now he belongs to the ages. So by the time they were done, they recognized his greatness. But Frederick Douglass says, in a speech that he gave eleven years after Lincoln s assassination, he said look, at the time people hated Lincoln. The slave holders hated Lincoln, but by the way, the abolitionists hated Lincoln too. The people who wanted more violent war thought Lincoln was too weak. The people who wanted peace thought Lincoln was too violent. He was assailed on all sides and all the time, and often statesmen are. Winston Churchill was assailed on all sides and all times, and we think Oh we love Churchill, people thought he was a washed up fool, especially after World War 1. So history is usually the judge of who statesmen are Audience: So what are the qualities which make a good statesman? Professor Sikkenga: The qualities I always think, when I talk to my students about this...first I think it s a commitment to doing the right thing, to justice. And to justice, you have to be honest about your pursuit of justice, because Lincoln was

always honest, I hate slavery. Slavery is wrong. It s contrary to the principles of this country and it needs to be gotten rid of. He never hid that. So what one thing a statesman will always be is honest about what justice is and they will try to do justice. What s that saying by Mark Twain, always do right. This will gratify some people and astonish the rest. That s a statesman. But one of the other qualities of a statesman is prudence. I take this from Aristotle, he s a Greek thinker. He says prudence, which is knowing how to do justice in the circumstances you face. That can be tricky business. Have you seen the movie Lincoln? I highly recommend that movie if you have not seen it, very strongly recommend it. There is a great scene where Lincoln brings Thaddeus Stevens, who is a fire-breathing abolitionist, he brings him (because the movie is about getting the 13th amendment passed) he brings him down into the basement of the White House and he says Stevens, now, your compass, I admire your compass always points true north, that s the phrase he uses to describe that slavery is wrong, but, he says the problem is you re staring at the stars and you don t understand how to get through the swamps to get there. To get through the swamps and get to true north is prudence. You can be all on fire for justice, but if you re a fool and rush off a cliff, that s not a statesman. That s William Lloyd Garrison, who was so against slavery that he was willing to say to hell with all the southern states and all the slaveholders. And he actually burned a copy of the Constitution on the Fourth of July. Okay, now that s being a zealot. He was all on fire, but he was... or John Brown, you remember John Brown and his ill-fated attack on Harper s Ferry. He was all on fire but he was a fool, he was not prudent. So a statesman also has to be prudent. And I think that s one of the reasons it s hard to judge who a statesman is while they re alive, because prudence requires you to make certain choices, difficult choices, that, only history really can judge later. Some people at the time maybe if they re clear sighted can judge it, but you know how it is, people are animated by their interests and their partisan passions and all the rest and they want to...and eventually history makes these judgements. The final virtue of a statesman is courage. You ve got to have courage to be a statesman. Winston Churchill had courage in spades. Abraham Lincoln had a quiet courage, a very quiet courage. He was not a shouter, he was patient with people, which as my wife reminds me, patience is a form of courage. It takes courage to be patient, he was patient with people. A certain dignity that comes with being prudent and courageous and just. But, people always see that over time, so to say who s a statesman now is a very hard thing. There might be people who want to be statesmen if they want to be they re going to have to understand that you re still going to get criticized. If you re in politics to get loved, you re not going to be a statesman, because you re going to have to make hard decisions. Question 13: Bill O Riley has written a number of books, about Killing Lincoln and others, what are your opinion of these books? Are they accurate? Professor Sikkenga: I have only read the Patton book. So I don t know, my dad has read some of the others, I can t comment on all of them. I am always in favor of people reading history. Now I don t like inaccurate history, I don t like fake news either. But, look, I always...i think there is a lot of good history out there...here is

the beautiful thing with history, people say oh well history is so boring, good history books sell. Biographies of really interesting people sell, if they re well done. Now, Alexander Hamilton, who would have thought he would be the subject of a huge hit broadway musical. Right, that seems impossible? I want creative people, smart creative people, to be writing about these great people, and I m not afraid if those books show them with their warts. Because Alexander Hamilton had warts, a lot of warts. George Washington wasn t perfect. He didn t really cut down that cherry tree y know right? Abraham Lincoln told off color jokes. Really good ones, yeah! But I am not going to repeat them in mixed company. Okay, so look, I am always...i am never afraid of historical accuracy. Because the clearer picture you get of these statesmen, the more you know Abraham Lincoln, the more you know Winston Churchill, who had a lot of vices himself, the more you know them, the more you admire them. Because you see despite the fact that they were human beings, despite that fact, they re still great. That s even more impressive than a mythologized person who doesn t have any faults. So I encourage reading history books, especially history books that give an accurate portrayal of the person, warts and all. I don t like modern...i ll say this from my own personal point of view, to many modern academic history is aimed at purely debunking great people, and that s wrong, because in fact they were great, and that s not the right approach and isn t accurate. We don t have to be afraid of the truth when talking about these people. John Marshall, the great Supreme Court Justice, he s the only big statue in the Supreme Court, he s in the basement of the Supreme Court. There is a great book called John Marshall, the Definer of a Nation, by Gene Edward Smith. He talks about the history of the Supreme Court, of how it developed, he shows John Marshall with his warts and all. John Marshall liked madera wine, a lot. He was a convivial character. He twisted arms and made deals, and arranged things, and did stuff that statesmen sometimes have to do, but the more you see him the more you admire him. Question 14: Abraham Lincoln, I heard that he was not very bright and was a bumbling president at the time of the Gettysburg address, and when he was going to give the speech, they had gotten this orator to talk, and he talked for 2 ½ hours before because they knew they had to get somebody of some respect because Abraham Lincoln was going to make a fool of himself, and what transpired was the Gettysburg Address. Professor Sikkenga: Lincoln was constantly underestimated. Here is the interesting thing, he always used that to his advantage. He never insisted on being the big man in the room. He was always perfectly willing to let other people have credit for it and as long as a thing got done, and done well, he was perfectly willing to let others do it. And so after that speech, after Lincoln gave the Gettysburg Address...and by the way, is so short, it s only 272 words. It was so short, that the photographers don t have quick cameras like we have now, they had to set up the cameras and get everything ready. By the time he was done they hadn t set up the cameras! So we only have one photograph, vaguely of Lincoln giving the Gettysburg Address, and we re not even sure it s quite accurate, because it was so short. After that address, this is true, Edward Everett, who was the most famous

orator of his day, wrote Lincoln a note and said, You got nearer to the rub of the thing in 2 ½ minutes than I did in 2 ½ hours. Questioner: We are friends with Everett s younger relatives and they still talk about that. Professor Sikkenga: And you know, Everett was a great guy, but he could recognise Lincoln s genius, and he saw that. And over time people did too of course. Question 15: Two quick things, I remember learning way way back when that there was a newspaper article about the ceremony at Gettysburg; and they said Edward Everett spoke and they want at length to explain what he said and then at the bottom it said, the President also spoke. The other thing is what do you think of Doris Kearns Goodwin book about Lincoln and his cabinet? Professor Professor Sikkenga: Oh I like that book a lot. Let me just say another book I can recommend, many of you probably know about it or have read it,team of Rivals. I encourage you to read that book because it shows you Lincoln s political genius. He knew that he was a hick outsider, who needed support from the establishment; and he was not afraid to have guys who were smarter than him in the room. Lincoln was a very very smart guy. If you could learn euclidean geometry just by picking up the book and reading it, you re a pretty smart guy. He wasn t afraid of math. He was a smart guy. But, he didn t have any college education. George Washington had no college education. He had a cabinet and was surrounded by people like Thomas Jefferson, Alexander Hamilton, James MAdison, Henry Knox, you name it. Those were the smartest guys of their age; not to mention James Wilson. He attended lectures on law by James Wilson. George Washington was not the smartest guy in the room by a mile and he knew it. But what was interesting is, everybody in the room knew that George Washington had the best judgement. He had the best character and the best judgement. That s why he was unanimously elected president twice. The only person ever unanimously elected, and nobody will ever be unanimously elected again I predict, right. But because of his character, he gave power back after he had it. Nobody in the history of the world had done that since Cincinnatus. George III heard that, he said - he had heard that George Washington after the Revolutionary War was going to hand power back to Congress, he said if he does that, he ll be the greatest man of the age. And he did that. And if you go to Congress now and look inside the capitol building, there are paintings inside of the rotunda. And one of them is George Washington handing back his sword in 1783. That s what he was actually famous for be he was even became president. So, judgement. Abraham Lincoln had the best judgement of anybody in the room. That s a quality that a statesman has to have. That s part of prudence. They have to have that kind of judgement. They don t have to be the smartest people, but they have to know what the right thing is and how to do it. And boy, I tell my students this, who are a bunch of 20 year olds - who don t always have the best judgement, I tell them the farther you go in life, the older you get, the more you see the importance of not just knowing things but knowing

what the right things are and what the important things are. And that s part of judgement. Yeah, they sometimes look at me like really? But they learn that over time. And our students really do have good judgement and good character. We care about that. Question 16: I have read that as far as the Supreme Court being political that there have been the last 12 years there have been more 5:4 decisions than the history of the whole Supreme Court. Is that true? Professor Sikkenga: It depends on what span of time you re talking about. But yeah, the Court has been closely divided on lots of issues. Sometimes the 5:4 split though is not what you d expect. Just to give you an example, in some cases Roberts like in the Obamacare decision. But the truth is actually, the Court is kind of more - those are the cases the media reports, right? The Supreme Court decides about 85 cases a year where they hand down a full opinion. We get about 5 to 10 of those reported to us. Okay, I end up usually reading, because it's my professional obligation, all 85. And sometimes, they are long and kind of tedious; but what I ve found is, the Justices often split along lines you don t expect. That sometimes Justice Scalia voted with Justice Ginsburg - that s amazing, but it's true - on things like the 4th Amendment and searches and seizure. On things like the 1st Amendment, a lot of decisions are in fact not 5 to 4. So I like to hope that the Court is not hopelessly partisan-ly split 5 to 4. But I would also say that the Court should examine itself and say, wait why are we split 5 to 4. We ve had so many prior precedents, what are we doing here that s causing us to be 5:4? For example maybe we are taking on cases we shouldn t take. Maybe we are making decisions that are less legal than they are political, and that s why we have a 5:4 split. I would encourage the Court to think about how it could be a little more modest in its understanding of itself. The Court has become incredibly powerful and a bit imperial sometimes. And it shouldn t be like that. It shouldn t be like that. Question 17: I have a question relative to the 10th Amendment, that seems to be virtually ignored, can you comment on that? Professor Sikkenga: The 10th Amendment says that, I can read it for you right here. So those of you who probably know it, but I ll read it for you. It says, The powers not delegated to the US by the constitution nor prohibited by the states are reserved to the states respectively or to the people. The Supreme Court, under Chief Justice Rehnquist, The Supreme Court rediscovered, I think, that states actually have powers - reserved powers. Okay. Here s the problem though, it s very hard to find principled defenders of Federalism. When your party is in charge of the federal government, then you like the federal government. When your party is not in charge of the federal government, then you like the states. I don t like that. I myself believe very strongly in the 10th Amendment. I believe that states - there s no problem under the framework of the Constitution for everybody - that there s no problem with states having different policies on different issues; and letting states be laboratories of democracy on these issues. Unfortunately, there s been hard to find principled defenders of federalism. There are a few. Justice O'Connor,

for example, was a famous and principled defender of Federalism. She thought the states, even on policies - she said, she famously wrote, This state has adopted a policy, that if I were in the state legislature, I would vote against it in a minute; but it's their right to have that policy. So, she was a old fashioned defender of Federalism. There are not, unfortunately, too many including among the politician class of people who recognize that. But, there has been a lot of progress. The Supreme Court has returned to the 10th Amendment and used it. In the 1940s, the Supreme Court said, the 10th Amendment doesn t mean anything. They called it a truism. Since then, the Court has rediscovered it and imposed some limits on federal power and on behalf of the states. Which I support. We re at kind of in the middle right now. Question 18: You mentioned the Supreme Court decides approximately 80 cases a year, and there is roughly a two to three year window for cases to even reach the Supreme Court, so could you explain the process of them deciding what cases come and how can some cases all of a sudden get to the top? Professor Sikkenga: Well, they get about 8,000 appeals a year, and they decide about 80 cases. So, you have a 1% chance. Takes about 5 years for them on appeal to actually decide a case on average. It takes 5 years. So sometimes people who are older and bring cases, they die before their case gets actually brought. That can happen, so their estate brings the case. There the judges decide to hear cases, they get appeals and they have what s called the Rule of 4. Four Justices have to agree to take the case. If they agree, then they schedule the oral arguments. Then they do all the - the hear the case - oral argument is a great thing to do by the way. We always take students to hear the Supreme Court s oral arguments. It s easy to get into and a lot of fun to actually see them in action. They never let Lawyers speak for than about 30 seconds before they interrupt them, which they can do because they are Supreme Court Justices. And then they hand down the decisions. They usually decide to take cases if the lower federal courts disagree on the issue. Generally speaking, that s how cases get to the Supreme Court. We don t often pay attention to - we spend so much time focusing on the Supreme court, we don t think about the lower federal courts. That s where most of the action happens. That s where the decisions are made, the Circuit courts are where most constitutional interpretations are made because most don t make it to the Supreme Court. So usually it happens to be a very important issue that has not been clearly decided yet, there has to be disagreement among the lower courts, and the issue has to be a real live and important issue. If it meets those criteria, then they vote 4 Justices take it, then they take on the case. Question 19: We have three branches of government. Congress passes the laws and then if the President vetoes the laws, the law is dead, unless Congress overrides it then it s alive again. Then, if it goes to the Supreme Court, they can kill it. Right? The law. Is there anything that can override the Supreme Court. Professor Sikkenga: Well, I think one of the arguments that I ve been making to you all day is that Supreme Court decisions should not be thought of as

automatically and forever killing a law or an executive action. That Congress should actually respond, that the President should respond in ways to the Court. They shouldn t feel like their hands are tied and they can t do anything. So the President can respond with executive orders that make - limit the Court s ruling as narrowly as possible. Congress can respond with laws. Congress has done that in the past. To protect religious freedom, for example, in 1993 - in 1997. They passed the Religious Freedom Restoration Act, which was done in response to a Court decision which said you don t have this religious freedom. And Congress passed a law saying, well on the federal level, you do. So they have - there has been - we tend to think that the Constitution is constitutional dictation. The Court dictates to us what it means. The truth historically has been, and I hope we keep this alive, is that it is more like conversation, not dictation. That the conversation goes back and forth; and that we need to be part of that conversation. The President needs to be part of it. Congress needs to be part of it. The States need to be part of it, and the people themselves need to be part of it. And, too often we ve thought of it as just The Supreme Court speaks and their the prophets who tell us everything that the Constitution means. And I think that has a very bad effect because it begins to say to us, you people don t need to know what the Constitution is. Leave it to the experts. That s not our Constitution. That s not We the People. That s not how it should be.