JWI Audio: Joseph Tartakovsky’s “The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law.”

On Friday, June 15th, JWI’s Deputy Director Garrett Snedeker and Intern Michael McCall shared a discussion with Joseph Tartakovsky, author of the new book The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law (Encounter Books, 2018). Mr. Tartakovsky, a lawyer by trade, is currently the James Wilson Fellow in Constitutional Law at the Claremont Institute for the Study of Statesmanship and Political Philosophy. Tartakovsky has set out to tell not just the story of the American Constitution, but also to tell it anew, through the lives of ten historical personages who had a hand in influencing the character of and the cultural fabric that surrounds our national document.  To listen, click on the link above. Below you may find the following:

A link to Mr. Tartakovsky’s book which is available for purchase from the publisher, Encounter Books.

–A transcribed version of the interview, edited for clarity and length:

McCall:  I’d like to begin with a question about the book’s form. In your interview with Steven Hayward over at Power Line Blog, you noticed that using the biographical approach allows you to insert more of a human interest into the subject, making the reading not just a list of court cases, but something that’s speckled with the more enjoyable types of gossip and intrigue which are inherent to personal lives, and which are amplified when such lives are lived on the national stage. I was wondering, though, if you would side with Lytton Strachey—someone you list as an influence for the book in its form—who, in tackling another historical mammoth (the Victorian Era), said that ignorance is the first requisite of the historian. Meaning, here, that the truth of such a large and a sweeping subject is most fully found in the particular, not the comprehensive, and thus a reliable discriminatory eye is required on the writer’s part to fix in on that which is necessary and vital. In doing so, Strachey says that the biographer accomplishes his first duty: achieving a “becoming brevity.” How do you see Lives of the Constitution in relation to such an approach? Was a “becoming brevity” something you hoped to achieve here?

Tartakovsky:  Well that’s a nice quote from Strachey. I hadn’t heard that quote but I know of his method, and I reference him in the opening chapter. That’s exactly what I was trying to do—what he is describing, what Plutarch did, what Samuel Johnson did with the English poets. The story of our Constitution and our life under it is so vast and so sweeping that I don’t know any other way to capture it than to pick people, in this case 10, at different points in our history who exemplified different tendencies or eras; and then to follow them through their adventures in life, through the world in which they moved, and see how they navigated it and what challenges they confronted, how they overcame those challenges, and what that can teach us today.

I actually don’t think that constitutional history is just a series of court decisions. Those decisions are not, to me, that interesting without the context, without the people. I think that by looking at the people’s lives you gain deeper understandings of their ideas—or their jurisprudence. I don’t think you can understand Alexander Hamilton’s constitutional thought without knowing a good deal about his wartime service, from which all of his legal thinking, I think, flowed. And the same is true with the nine other figures. So the biographical method seems to be the way to approach something as grand and long-running as the American story under the Constitution.

McCall:  The other question on form I wanted to ask you has to do with your finale, your grand wrapping up of the argument of the book as a whole. You do it in a really impressive fashion, and from a somewhat different angle than that of the rest of the book. There, in the last passages of the book, your writing pays homage to the kind of too-muchness that your earlier  discriminating approach necessarily leaves out. It pans out to a larger view of everyone else who could be said to have had a hand in making the Constitution what it is: what you call the “unheralded, millions of Americans who’ve done nothing more than quietly transmit the constitutional inheritance unimpaired.” What led you to finish on such a note? The effect of reading it was memorable to say the least.

Tartakovsky:  The people in this book teach us things that we’ve forgotten that are worth reviving. I wanted to leave the reader with the sense that history isn’t just made by these famous people. There are of course famous people in our history: people who did more than others, who led the way, who fought the great fights, made the great speeches, argued the great cases. But there’s something more than that. It wouldn’t work if it was just a bunch of platonic guardians overseeing the whole structure of the Constitution, enforcing its limits. There’s a magic in our history, a sort of loyalty to the Constitution and the constitutional culture that we’ve had. It [our constitutional system] would not work, I’m quite convinced, if the vast majority of the people didn’t believe in the Constitution, didn’t think it was something worth preserving, and didn’t teach their children that it was worth carrying on by them.

Snedeker:  I’m reminded of a quote—I don’t remember if you brought it up in your chapter on Scalia—but Scalia often liked to invoke how certain constitutions across different countries had far more explicit guarantees than our own. If you look at, for example, the Soviet Constitution, it certainly seems to guarantee much more, but Scalia often tried to reinforce the point that those are nothing more than parchment guarantees. They’re only as strong, that is, as the country’s civic norms, and its individuals that have to live in fidelity to those norms in order that these  guarantees might be lived in practice. Was that something that was part of the inspiration for your account at the end?

Tartakovsky:  Absolutely. We know that it’s not enough just to have a good constitutional text on paper; the text has to be sustained by a culture. We know this because we see what happens in other countries. So today, most constitutions imitate ours. They start with something like “We the people of Mongolia,” or “We the people of Morocco.” A lot of them have bills of rights that are pretty impressive on paper, but they’re meaningless in practice unless they are protected and sustained in a culture.

I remember seeing this for myself when I was living in Russia in 2002-2003. The Russian Constitution has a guarantee of free press and free speech, and I remember when the government, still under Putin, took over the last independent TV station in the country, the very last one. This was the only news on TV that was still in any way presenting an opposition. And when this happened, what I saw was that the Russians were not outraged, but shrugged. This is because they did not have a culture of free press—they never have, and so we see that the text of the Russian Constitution is literally meaningless because nobody respects it.

McCall:  Turning, then, to some of the “Lives” themselves, It’s only right to begin with our Institute’s namesake. And It’s not only right, but it’s appropriate in consideration of a larger project I see your book as taking part in regarding Wilson: the project of restoring his historical reputation, of raising him back to the place of importance he once had during that remarkable Founding Era. How do you see your book as engaged in this project, and why do you think it’s worthwhile?

Tartakovsky:  I put James Wilson on my cover! I love James Wilson. I mean, he is, as the kids say, the man. I discovered him through his Lectures on Law, and thought: no one has explained to me the basis of the American regime and its foundation in natural law better than this. There’s a relevant story to tell here regarding his historical reputation. You know they exhumed him in 1907, or 1908, and brought his body back to Philadelphia; Theodore Roosevelt’s attorney general was there at this memorial for Wilson, more than a century after he died. And Roosevelt’s Attorney General said that it was one of the  great mysteries of history that he hadn’t been able to solve: the question of why Wilson’s fame has not kept pace with his service. It’s a striking phenomenon.

James Wilson was so central to his age, and he is so forgotten today. He clearly belongs in the first ranks of the founders, with Washington, Madison, Hamilton, and Jefferson. Wilson was one of the six men to sign both the Declaration and the Constitution. He is next to Madison as the guiding force at the Constitutional Convention. He was the first to offer public defense of the Constitution, as a member of the convention, in his State House Yard Speech, which became the single most cited document in the entire ratification debate. He was instrumental in the ratification process in Philadelphia—which was the first big state to ratify it, and the second state overall. And he wrote the Lectures on Law, which are as good as The Federalist Papers, and should be read alongside it.

So we have much to learn from James Wilson, especially because you still see him. We come across these constitutional fights today and you find again and again that James Wilson was there first. Just to give one example: there’s this question of whether the President can pardon himself, and at the Convention there was a sort of a skirmish over the issue. James Wilson seemed to suggest that the President could pardon himself, (noting that it would lead immediately to impeachment), but on that particular question, that’s where he stood. So we see that James Wilson seemed to have had something to say about everything, and he seems to be right about most things he said.

And lastly, James Wilson, in interesting ways, predicted the course of American development. You see, for instance, conservatives often speaking with outrage about the 17th amendment—which made for direct election of U.S. senators—calling it a betrayal of the Founding. James Wilson, however, fought hard at the Convention for weeks in defense of the direct election of senators. He thought election by state legislatures, as we originally had, was a betrayal of the principle of republicanism. And so Wilson, I think, reminds us better than anyone else that our fights over the Constitution rarely present disputes about departures from the Founding, but actually belated agreements with one founder over another, and we often find that we’re belatedly agreeing with Mr. James Wilson.

Snedeker:  It does seem like more and more as Wilson’s reputation is being restored, there’s an appreciation for, as you said, his prescience, but there’s also a growing appreciation for how irreducibly logical his reasoning is, and its ability to hold up over the course of time. There’s something to be said about having a set of principles that can be tapped from era to era to era, and even if you don’t (in one particular circumstance or another) see through the full extent of the principle, it’s the power of that principle that seems to endure. Wilson would probably be the first to say that you shouldn’t be praising me, you should be praising the principles that I’m expounding. And I think it’s a testament to the teaching that he inherited from Thomas Reid and the Scottish Enlightenment that it endures to this day. Maybe you could talk a little bit about just how unique that school’s influence was on the philosophy of the Founding.

Tartakovsky:  James Wilson brought the Scottish Enlightenment into the Founding project. He loved Thomas Reid. His “Lectures on Law” quote entire paragraphs of Thomas Reid, and that’s how I learned about him. Reid in particular had this belief in something called the moral sense—a sort of a sixth sense about moral action. The idea was that we instinctively know right and wrong, and we know this because it registers within us immediately as an impression, like light and dark, or sweet and sour.

I find this argument very convincing. When you hear about someone’s behavior, you immediately find it praise worthy or blame worthy without having to think about it all that much. When we get offended very fast, for instance, you don’t have to sort of reason through why you’re angry, you just know it. Scientists find this in children, actually, and at a very early age they do these experiments where they’ll have six-month-old babies watch a video of an actor taking away a toy from a kid, who starts to cry, and then watch another video where an actor gives a toy to a kid. When they then put the six-month-old in front of each actor, the little babies crawl toward the “nice man.”

So I find that there’s something true about this principle within human nature, and it’s something that ran through the heart of Reid’s thought. He wasn’t blind to the lesser qualities of human nature, but he thought that human beings had this instinct for generosity and justice, and this gave him a trust in “the people.” And so James Wilson, I find, was almost unique in this aspect in terms of his philosophy. Most of the founders were either in one of two camps. They were either like Hamilton who feared “the people,” thought of their sentiments as a kind of mob mentality, leading them to choose poorly and leaving them highly susceptible to demagogues. In this light, these founders wanted a strong government to keep the populace in check, or at least to keep government a good distance from “the people.” Or, on the other hand, they were like Jefferson who feared government and wanted strong popular control. Wilson was, as far as I could tell, the only guy who wanted both strong government and strong popular control. In the Founding era, the big fear was a too-strong executive. They had lived under kings, so they wanted a strong legislature, and a weak executive. But James Wilson was saying things like, “the President should be a man of the people,” and he fearlessly used this phrase which was almost scandalizing to many of the founders at the time. He even called for direct elections of the president, which was also sort of scandalizing. So he was very unique, and it does, as you say, seem to derive from this understanding of human nature from Thomas Reid.

James Wilson often talked about justice, generosity, and fair dealing in ways that were not always strictly constitutionalized. He hoped that American’s would free the slaves, treat the Indians properly, and receive foreigners with respect. These are qualities that can’t be codified in a constitution. They’re part of this constitutional culture, these traditions and habits and assumptions that run through what might be called our constitutional fabric; and James Wilson spoke more eloquently than anyone else about them.

McCall:  In your chapter on Wilson, you spend some time looking at his career on the Supreme Court and some of the judgements he rendered while there, and I’d like to ask you about the seminal case of Chisholm v. Georgia from 1793. At issue was the question of whether a private citizen could sue a state government in federal court without that state’s consent. The Court, by way of reasoning set out by Justices Wilson and Jay, held that the state could not appeal to its own sovereign immunity here. It couldn’t refuse to make itself responsible for defending its policies in a lawsuit brought by a private litigant. The decision was short lived; the authority of the ruling was soon swept away by the 11th amendment, and the case is little read today for it built no lasting precedent. Would you, however, agree with Professor Arkes argument that the Court’s ruling can and should stand as right or wrong regardless of its relationship to legal precedent? Or, in other words, do you think Wilson and Jay might have been right? And should it matter?

Tartakovsky:  As a matter of text, I think they were right. I think that there was a doctrine that states simply could not be sued as defendants, and the Constitution, as originally written, seemed to me clearly to have abrogated that immunity in federal courts. So, if you’re living in Massachusetts, you don’t want to be sued in Virginia and get some sort of money judgment against you by a hostile Virginia jury overseen by a hostile Virginia judge. Now a federal court was supposed to be a neutral court, so that made sense that states could sort of sue each other over debt. But it was an explosive question because there was a lot of debt, so great, in fact, that it could have been bankrupting. So, as you say, they decided Chisholm in 1793, and the states erupted in anger. There was a measure of ambiguity in it, but I think that the Court was right. So they did what you’re supposed to do. You say: “this is not what the Constitution ought to do. We’re not ready for this.” So they passed the 11th amendment to reverse Chisholm.

I’ll tell you something interesting: it’s a surprising live question. This question, the Chisholm question, is heading back to the Supreme Court right now. There’s a petition that I helped write in a case called Nevada v. Hall. Notwithstanding the 11th amendment, states have not been sued by other states for many, many decades. And then in the 70′s the Court decided that the Constitution is essentially silent on this, and so states can be sued. Now, there haven’t been that many suits, but they’ve been growing. So, for instance, Nevada and California have had plaintiffs sue each other, and it’s very disruptive. The state of Nevada and the state of California, right now, are asking the court to find that a states can’t be sued. One of the big precedents leading up to this was a case called Alden v. Maine, and there the Supreme Court has this long discussion of the reasoning of Wilson and Jay in Chisholm. And one of the least likable aspects of that decision is that Justice Kennedy, writing the decision for the Court, disparages James Wilson as a radical nationalist. Now this is very ahistorical. James Wilson was not a “radical nationalist.” Yes, In contrast to what the Constitution actually said in the end, he was a big state nationalist. He wanted the federal government to be strong, for the federal courts to have more power, but the Constitution that arrived from the convention was in the end, of course, a compromise. So it seems like a slander on James Wilson to call him a radical when he was the most eloquent expounder of a certain view, which was shared with people like Washington, Hamilton, Madison, but that the small states weren’t ready to accept. But you see how these sort of issues keep arising. They recur throughout history in interesting ways and once again, James Wilson is at the heart of it.

McCall:  When you first focus on the Federalist lineage, here meaning Hamilton and Wilson in the first two chapters under the heading “Builders,” your aim, in my view, seemed to be to paint the picture of Hamilton as this robust, expert administrator and the driving force in implementing much of what we know today as the principles of the modern economy. We don’t, however, see much of Hamilton the theorist, Hamilton the philosophical genius behind say, The Federalist Papers, as much of the philosophical interest, and for our purposes the striking connection to natural law, rests on Wilson. Is this a correct assessment of what you were doing there? Kind of dividing the duties there between them?

Tartakovsky:  Yeah, I’d say that’s right. I think when you want to understand the philosophical basis of our government, James Wilson is the person to read. If you want to see how the principle of human quality flows through the various institutional arrangements in the Constitution, why we were the first country on earth to institutionalize the principle of human quality, you have to look at James Wilson.

Hamilton of course believed in this, but I did divide the duty. Hamilton was a practical guy in this sense. He famously was very, I don’t want to say useless, but very ineffective at the Constitutional Conventional. He left early. He made one speech that no one very much agreed with. He was never able to vote in any effective way because he was a member of the three man delegation. They were both hardened anti federalists, so he was constantly out voted, and they left quite early, and so he was unable to vote because there wasn’t a quorum from New York. I find that Hamilton was a kind of guy to which it didn’t really matter what the Constitution produced because going to work with whatever they offered. He was going to make the product what he thought it ought to be. He was going to imbue the government with the proper energy and power. So I think that Hamilton is a more interesting guy to look at through the lens of the practical operation of the Constitution during those early years, and James Wilson is the guy through which we can best see the documents theoretical underpinnings, although they did have a lot of cross over.

McCall:  Moving on from those early days to what we might call our country’s adolescence, we come to one of my favorite ”Lives”: that of the Massachusetts Senator Daniel Webster. What made the chapter so enjoyable for me was the way in which you chronicle his particular mode of statesmanship, one you see as inextricably tied to his profound oratorical promise. You describe him as a kind of American Churchill; someone who, in the face of the gathering storm that would reach its climax in the crisis of the house divided, sought to, as you say, “rally the deepest and best instincts of the American people.” Can you speak more to this comparison, and your idea of  Webster’s place in the history of American political rhetoric?

Tartakovsky:  Daniel Webster lived in an age of oratory. This was before popular forms of entertainment, and so having someone make a speech was like going to the movies and theater and Netflix all rolled in one. It was like the most fun you could have. People then tolerated three or four hour speeches. And when you read about Webster, and see descriptions of him by contemporaries, everyone seemed to agree that there was just something astonishing about this guy and his speech. Something electric about it. People would listen to him speak and they would say things like “they thought their temples were going to explode because they were so awed.” People started calling him “God-like Daniel” because his oratory was so powerful. Even his enemies recognized this. It seems to have been a large part of his influence. He expressed American doctrines and defended the Constitution in ways that shaped American history. Generations of school children have studied his words, and they are, I think, still apt today.

He was fighting over things that were then unsettled like: is the Supreme Court the final expository of what the Constitution means? Can a state, if it thinks a federal law is unconstitutional, refuse to obey it within the confines of the state? These were live controversies and the Civil War settled them. But certainly a sub- theme of the book is that the power an individual has, the influence they have, does seem to correlate quite closely to how eloquent they were. That’s why when people think of these things later on, they’re drawn to the way they were expressed, especially by people like Webster, and to a lesser extent James Wilson, who, by the way, coined the phrase politically correct. I definitely wanted to explore the relationship between influence and rhetoric, and I found no better person to do that with than Daniel Webster.

McCall:  Next, perhaps we can look at another forgotten jurist not named Wilson, and talk about Stephen Field. Maybe you could begin by giving us some background on who he was, and describing what made him a different kind of judge, before we get into the more substantive ground of his legal reasoning.

Tartakovsky:  Stephen Field was a justice appointed by Lincoln in 1863 and later would become the second longest serving justice in our history. He had begun his career as a lawyer during the gold rush and became mayor of a California town. It’s a funny story. He moved to this town that had just been founded in the Sierra foothills and runs for mayor. His opponent accuses him of being a newcomer because he had only been there for three days before he ran for mayor, but his opponent had only been there for six days, and Field wins. This is essentially the state of nature. I mean, California and the gold rush. It’s as wild as you can imagine.

But Field notices that the whole precarious order seems to hold together so long as you had respect for property rights. And Field turns this experience into a constitutional philosophy and to this day remains, I think, one of the most brilliant investigators of the relationship between property rights and the Constitution. While people today are likely to talk about free speech as sort of the essential constitutional liberty, Field gave such a place to property rights. He grappled with questions that arose during America’s industrial rise after the Civil War: monopoly powers, new state regulations on railroad rates, new measures to protect the public against purported health and safety dangers, dangerous foods, and other things like that. And he particularly looked at what limits the Constitution imposed on this new source of laws. We still see him today: his reasoning is still controversial, but, unlike in his own time, is somewhat on the march. For instance, the idea that corporations are people under the Constitution, this is something that Field developed.

McCall:  Field seems to offer an excellent example of natural law jurisprudence in action, especially when it came to questions concerning what Professor Arkes has called the right of worker to pursue a calling; an individual’s right, that is, to make a living at a legitimate occupation without the imposition of the kinds of arbitrary regulations that would bar entrance into a trade. How does such view play out in Field’s jurisprudence? Is this a question that we’re still grappling with today?

Tartakovsky:   Yes, very dramatically in fact; I’m glad you brought that up. Hadley quotes Stephen Field all the time on this particular point. Stephen Field created this idea that the Constitution protects a right to pursue your calling to work without interference. This is what the pursuit of happiness meant for him. He treated it as if it was a clause in the Constitution. He used it in many interesting ways, he defended the Chinese in California, for instance. California was terrible with respect to the Chinese back then, as bad as the South was with respect to blacks. They would pass laws like: you couldn’t have a job unless you had 12 white citizens affirm that you had good character. And Field quite rightly said: you can’t live if you can’t work. He was suspicious of what we would today call rent-seeking behavior—laws that would say things like: “You can’t have margarine, because it’s dangerous.” And he would say, “Well this is clearly a law passed at the behest of the dairy industry.”

He basically lost most of these fights in his day, and his most famous failure on the Court was in the Slaughterhouse Cases. Here, Louisiana said, “All slaughtering in New Orleans, for a quarter of a million people, for 25 years, will be done by one company.” And, as a result, 1000 butchers are basically put out of work. Field realized this was unconstitutional, and made it known in his dissent. But his ideas are on the move today, especially in the challenges, most of which I think are quite correct, against these sort of petty licensing regimes one sees in markets for hair-braiding and such. These laws are obviously, to me, in many cases, examples of pure protectionism. There was a great case, brought relatively recently, in which a bunch of Benedictine monks who made caskets for a living ran up against a law, also in Louisiana, that said that you can’t sell caskets unless you are a licensed funeral director. There’s no reason why you ought to be a licensed funeral director to sell caskets. The only good reason for such a law is that it keeps the monopoly on the funeral casket sales within this little industry group. The fifth Circuit struck down the law and thus we have the Louisiana monks prevailing where the Louisiana butchers, 140 years earlier, had failed; and they did so on the back of a quintessential Fieldian argument.

McCall:  Lastly, on account of our time constraints, let’s move on to Justice Robert Jackson, who we also find, as your book notes, engaged in a couple of legal battles that are still very much alive today. To begin in a more general sense: who was Robert Jackson? And, more specifically, what does his jurisprudence have to teach us today on a hot topic like the limits of the First Amendment?

Tartakovsky:   Justice Jackson was born in Pennsylvania, grows up in New York, and launches his career as a classic country lawyer. He begins trying cases over life stock in barns, lit by lamps, but has the good fortune of befriending the young FDR in upstate New York democratic politics. FDR eventually brings him to Washington as the counsel for the IRS and from there he skyrockets, eventually becoming the Solicitor General, and then Attorney General, and then is put on the Supreme Court  a few months before Pearl Harbor.

Jackson led one of the great rear guard campaigns against what I would call First Amendment Absolutism, which is a legal doctrine that I dislike, and that Hadley Arkes has proven himself to be just about the most eloquent critic writing about it today. The First Amendment used to mean something like this: “The Federal Government cannot smash the printing presses.” Today, however, the doctrine of free speech is so broadly defined, covering so much non-speech activity, that it is in danger of swallowing everything. Look, for instance at the recent Masterpiece Cake Shop Case. The main thrust of the argument was not that the baker had religious liberty right, but that he had made a free speech claim. Baking is now a form of free speech because everything is free speech these days, and so this is the most appealing avenue for an individual and his lawyers to pursue.

Today is an interesting day to talk about Jackson because I think today is the anniversary of the famous Barnett Case concerning the constitutionality of mandatory flag saluting in schools. Jackson in that case wrote what I think is the most unimprovable statement about what the First Amendment means. He said that no official can say what will be orthodox in politics, nationalism, religion or other matters of opinion. If that’s what the First Amendment were limited to, I think we would be pretty faithfully interpreting it. But we’ve gone further that; as Hadley points out, we’ve used the First Amendment to strike down laws that have very little to do with the government trying to restrict expression of opinion. Look for instance to the challenges lobbed at ordinances that say that you can’t let your garden and plants grow too high and look too sloppy. We have people saying: “Well, we have an expressive right to have our foliage look the way we want away”—I mean, this is where we’re going.

It’s worth remembering that Jackson was the one who said that the Constitution is not a suicide pact. People quote that all of the time. What that quote actually means, though, when read in its fullest context is this: don’t extend the free speech doctrine so far that it disarms the public authorities from ensuring people’s safety and security. It comes up in the fascinating Terminiello Case, in which, after the war, a fascist gets up and makes a speech about Jews, and rants that “Eleanor Roosevelt is a communist,” and all sorts of conspiracy stuff. He then got prosecuted for breaching the peace. Now, he didn’t get prosecuted because of the content of the speech; he got prosecuted because was urging his listeners to confront the crowd people outside. He was trying to create a riot. The majority for the Supreme Court writes that this what democracy is all about: people being free to have robust expressions of their views. Jackson, however, dissented; he said: this is danger. This is not what the purpose of the First Amendment is. At issue is the state authority trying to prevent people from getting killed, so don’t valorize this as a free speech issue, dressing it up as this wonderful thing that it isn’t.

The majority, as I said, prevailed, and inscribed this idea that when someone wants to make a political speech, under almost no circumstances can you regulate it in any way. And this was very much at issue in the Charlottesville case last summer. I’m actually pretty familiar with this: the city of  Charlottesville had been working with these white supremacist groups in order to allow them to organize and have their say. However, they learned a few weeks before the rally was supposed to happen that it was going to be much bigger than they thought. They learned that there was going to be thousands of people flooding in form both sides, all in downtown Charlottesville in this half acre park and these narrow streets, and it was going to create a situation that the authorities were not going to be able to control. They wouldn’t be able to get emergency vehicles in or out. And so, the city said, “We’re going to move it to another park, a larger park, with better access, a mile away.” The ACLU brought a lawsuit, making the majority’s argument from Terminiello, and the court agreed with it, doing exactly what Justice Jackson had warned about. And the result was that people got killed, which was exactly what the city had argued would happen. So, I don’t know,  maybe it’s just me, having written a book in part about Jackson, but Jackson came to mind. This is what Jackson was talking about. And no one really thinks that the tragedy of Charlottesville was some sort of big blow for in favor of free speech, or some sort of great exhibition of the glory of our liberties.

Snedeker:  So, under your reading of Terminiello, and Jackson’s reading and Terminiello, it was the police who were making the most astute observations of what had to be defended more than anything else here. And your analogy is that, in Charlottesville, if there had been the proper care given to the argument that public safety was at stake, rather than any notion of free speech, you wouldn’t have had any actual restriction on the content of the speech, because nothing would’ve stopped the protestors from making the most robust arguments on one side or the other. But you just wouldn’t have had a conflict in which there’d be bloodshed? Does that sound right?

Tartakovsky:  Yeah, that’s exactly right. Historically, this may not have been true, but today, in this day and age, I believe that most mayors, fire chiefs, police chiefs, people that have to deal with this stuff on a daily basis, they really do respect the principle of free speech. They know that it is not their job to squelch an opinion they disagree with, but they do have a duty to keep people safe. And I find that, in the Charlottesville case, the authorities were very clear about that, and I thought very honest. Look, they said, you can’t say that we’re trying to suppress speech. We’ve been working with these white supremacists  for months to facilitate this, but there’s unignorable danger in holding this event here. As the fire chief said in an affidavit: “look, I’m not going to be able to get emergency vehicles if anyone gets hurt. And people are going to be coming to this armed. People are going to be coming spoiling for a fight.” All this should remind us of Justice Jackson’s statement in Terminiello: that no liberty is made more secure by holding that its abuses are inseparable from its enjoyment.