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Tom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law, Professor of Political Science, and Faculty Director of the Malyi Center for the Study of Institutional and Legal Integrity and the Forum for Free Inquiry and Expression at the University of Chicago.
In this week’s conversation, Yascha Mounk and Tom Ginsburg explore different approaches to constitutions in the United States, Europe, and beyond, the advantages and disadvantages of the U.S. political system, and how to protect the First Amendment.
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This transcript has been condensed and lightly edited for clarity.
Yascha Mounk: I’ve been thinking about a quote that I believe, unless I’m mistaken, comes from Immanuel Kant, which is that the right kind of political system would be designed in such a way that even a race of devils would obey it. That even if everybody engaged in the political system was self-serving and sociopathic, the institutions of that constitutional republic would still hold.
It occurs to me that we are engaged in a giant natural experiment in the United States, but also elsewhere, to test that hypothesis, to test attempts at doing that. You are somebody who, along with lots of interesting work about free expression and reforming the modern American university, which I want to touch on in this conversation, has thought for a very long time about comparative institutions, about how, and to what extent, constitutions can actually serve the goals of democratic stability.
What is your conclusion? Is that hope completely chimerical? Does it always depend on the particular local political cultures and the values that people actually have? Or can the right kind of constitution really constrain the ambitions of bad demagogues to a considerable extent?
Tom Ginsburg: That’s a great question, and it’s an enduring question of political theory, of course, because certainly since the era of modern constitutions begins with the American founding in 1787, you’ve had this idea that constitutional designers could design, as one book on the topic is called, A Machine That Would Go of Itself, without any regard for the character of the individuals who were inhabiting it. That’s obviously an aspiration which hasn’t been met. We can talk about exactly what assumptions were problematic that they made back at the Founding.
At the same time, it is important to recognize that those of us who study institutions think that institutions matter. If institutions matter, then they do constrain. Maybe not in a perfectly predictable, machine-like way, or like the laws of physics, but we can, in social science, try to identify tendencies that come from certain aspects of institutional design.
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So I think it’s an enduring debate. I would just say that the Kant quote fits perfectly with James Madison’s idea: “Let ambition counteract ambition. Extend the Republic.” He had all these ideas for institutional solutions to the fundamental problems he saw facing political communities. That led to pretty successful experiments, though it is being challenged very sorely as we speak.
Mounk: Tell us a little bit about what the core things are that a constitution needs to have to constrain the ambition of demagogues. Obviously, the idea of a rule of law and the separation of powers is, I imagine, going to be crucial to this. But let’s bracket out the things that every modern constitution basically has. What other things are really helpful in constraining the kind of ambitions that demagogues might have?
Ginsburg: Maybe I’ll answer that by talking first about the U.S. Constitution, because Madison has this idea that you just set up these three branches and they’ll fight with each other, and that will enhance liberty. If you were writing a constitution today—they’re talking about doing this in Ghana right now, and there’s an experiment in Bangladesh—countries periodically do go through efforts to write new constitutions.
They’re not looking at Madison as the model. There’s been a lot of evolution of constitutional technology, if I can use the term, in terms of thinking about what institutions are necessary. One whole branch of thinking has to do with emergency powers. There’s a big debate in political theory between Lockeans and Machiavellians about whether or not law can constrain emergency power—the fundamental question. Most constitutions nowadays would have a very elaborate set of rules about emergencies where Congress has to approve them, and they only go on for a certain amount of time. Of course, the U.S. Constitution lacks that. We don’t really have much on that at all. Right now, you see a grave abuse of the emergency rhetoric, using individual statutes that have granted the president certain emergency powers, but they’re being pushed to the limit. It would be much better if we had a well-thought-out emergency regime.
That’s just one example. I’d say in general, separation of powers is obviously critical. Since World War II, a robust set of rights has been added. The assumption of the last few decades is that courts are necessary—judicial review. What we sometimes call a fourth branch of government is institutions set up not really to do anything affirmatively but to check the other branches, to engage in accountability, counter-corruption commissions, and things of that nature. That’s your basic constitutional design. You almost could have a generic one and pull it off the shelf, but people do want to tailor it to their own histories, their own needs, and their own institutional problems.
Mounk: American listeners are going to be used to a system in which the separation of powers really is very strong. In the United States, you have a judiciary with an unusually strong form of judicial review, in which the Supreme Court can and historically has struck down many laws because they violate a broad interpretation of some constitutional principle, some of which, like the right to privacy, are not explicitly written into the Constitution in those terms.
You have, importantly, a president who is directly elected by one kind of route. The executive derives its power from the president, who is elected in one kind of way. Then, of course, you have a legislature that is elected often at different times than the president. The House is elected for two years at the same time as the president, but then there are midterm elections. Only a third of the Senate is elected at the same time as the president, and again, by quite different electoral mechanisms. So I think it makes sense in the United States to talk about the three branches of government.
When I look at many European democracies and many parliamentary democracies, it has always struck me that this idea, which is repeated in those countries just as much as in the United States—that there are three branches of government and that they really are separate—is a little bit of a fiction. In Britain or in Germany or in many of those places, the prime minister or the chancellor is elected by the parliament. The election that results in a parliamentary majority in the legislature for one party or set of parties is the same election as the one that results in the head of the executive. Of course, the head of the executive relies on a majority in parliament, but also therefore always has a majority in parliament.
They might lose that majority, and that is a significant check on the executive, but it is unclear to me that in the German or the British context it is particularly helpful to talk about a separation between the executive and the legislature in the way it is in the United States. Am I overstating this point?
Ginsburg: Well, separation of powers means different things in different countries. In France, they tend to focus not so much on legislature and president, because it is a kind of semi-presidential system that mixes those two. They are really worried about the judges, so that the judges should stay in their lane. That is really important. That is another part of the separation of powers.
In the parliamentary systems you described, there are a bunch of constraints, of course. Courts are one of them, fundamental rights are one, and these accountability offices are another. One of the things I have become very interested in, and am writing on now, is constitutional monarchy as a constraint. When you think about the most powerful and successful and rich democracies in the world, constitutional monarchies are parliamentary. They have legislatures, and the head of state has nothing to do with the legislature, but the head of government does. Those are extremely successful countries.
One of the reasons I think they are successful is that the monarch does not play any active role in politics, but does do a couple of things. They can put an upper limit on populism, in some sense, because populist appeals to represent the nation are already taken by this other person. I think they also can form a check on the government. If you had a really extreme government, the Queen of England would not recognize it as such. That is another underappreciated source of constraint. To sum up, there is a huge literature.
Mounk: Just on monarchies, I think you are right. It is very important that a key appeal of populism is “I am the true voice of the nation. I am the true representative of the nation. Therefore, if anybody disagrees with me, by virtue of that fact they are illegitimate, by virtue of that fact they are enemies of the people.” That is much harder to do when you have a monarch, because the monarch is supposed to be the true representation of the people. As long as they retain some form of popular legitimacy, that takes away some of that space. That is an interesting observation.
The other one that I would add is that it makes it obvious that you can criticize the head of government without being disloyal to your state. In the United Kingdom, it is impolite to criticize the monarch beyond certain normal ways. But precisely because there is the monarch, it is not at all impolite to criticize the prime minister. The prime minister is the first servant of the monarch in a certain kind of sense. Of course you can criticize them.
Whereas in presidential systems, to criticize the head of government is also to criticize the head of state, and also to undermine the dignity of the state in a certain kind of way. That, I think, can breed a less healthy political culture in that specific respect.
Ginsburg: Absolutely, I think all of that is right. There is this kind of ontological unity that a monarch forms, and everyone in the country can be a subject, whether they are a religious minority or a racial minority or something like that. It integrates the nation in important ways. I do think what you said about populism is very important, that it creates this kind of upper ceiling on populist appeals. Boris Johnson was a populist, but he did not get nearly as far as Donald Trump, and he just could not. He was just a brief blip in British history.
To step back a minute, there is a lot of literature on presidentialism versus parliamentarism going back to the 1990s. My reading of the literature is that it is inconclusive. We have democratic backsliding in both parliamentary countries like Hungary and presidential republics like the United States, and semi-presidential systems like Poland. We have well-performing parliamentary governments and badly performing parliamentary governments. So I am not sure I would say that countries can switch very easily between them. But it is not clear that the system itself makes a huge difference. It depends on what you are trying to optimize in any particular context.
Mounk: One way of thinking about this is that if you are particularly worried about democratic stability and averting democratic backsliding, the natural instinct is to say, the more checks and balances you have, or the more veto points you have, or the harder you make it for somebody to concentrate power in their own hands, the better. It is a very logical train of thought. The problem seems to be—at least that is one argument in the literature about semi-presidential systems like the one in France, the one that prevails in Latin America, and the one that actually the United States has—that this can lead to so much gridlock and therefore so much frustration that the political space opens for somebody to say, All these traditional parties don’t work, all these mechanisms don’t work. I’m the one who is going to speak for the people, give me the power to fix this damn thing.
It can even lead historically, in Latin America in particular, to military coups by generals who say, All of this political stuff isn’t working. I need to step in and save the system for a little while.
What is your read on that? Is there such a thing as too much restraint on the power of the executive, too many veto points in a system, such that even as you are seemingly making it harder for one person to concentrate power in their own hands, the sheer difficulty of getting anything done then perversely and ironically favors the consolidation of power in the hands of somebody acting in an extra-constitutional capacity?
Ginsburg: Yeah, that is obviously a fundamental trade-off: preventing tyranny versus gridlock. You are trying to optimize across those two dimensions.
Some people would say that part of the genius of the United States Constitution is that it has tended toward the gridlock end of things. It is very hard to get things done unless you have a sustained political coalition. Every once in a while, someone comes along who is able to mobilize the public and really change the country, but it is pretty hard to do. That means there is a lot of frustration—we cannot get things done. On the other hand, things like property rights are very well protected, because some of the things people might want to get done might infringe on property rights. The steady growth of the U.S. economy might be in part attributable to the fact that politicians of whatever stripe are unable to tinker around too much, as they can in other countries.
Roosevelt is a really interesting character there. People on the Democratic side tend to think of him as someone who broke through the gridlock, saved the country, and accomplished important things. Another way to look at him is that he was a dictator who defied term limits, died in office, and manipulated property rights in very fundamental ways. That has been an enduring political debate.
Which tendency you favor might just depend on who is in charge at the time and what you think of their policies—whether you push toward accountability or you push toward getting things done.
Mounk: Since you mentioned term limits, that is obviously an important trade-off as well. On the one hand, you might think that what often happens when people consolidate power is that they are in office for so long that they are able to place their loyalists into all kinds of institutions, that they start to develop corrupt patronage systems, and that they slowly and gradually overwhelm the system. One way to avoid that happening is to place a limit on the length of time they can be in office, perhaps one long presidential term or two presidential terms, as was historically the case in the United States and as was formalized after FDR remained in power for four presidential terms until he died. That is going to avert that kind of outcome.
On the other hand, this raises two considerations. First, as citizens, we should be able to vote for whoever we think is best at the job. When there is somebody who is doing the job well, we should be allowed to vote for them again. Why should we put this artificial constraint on our own ability to choose? Second, you might be pushing people toward extra-legal behavior. If the only way to satisfy the ambition to stay in office for another term is to start violating the Constitution in a very open way, or to place enough judges on the Supreme Court that they have very absurd readings of the Constitution, it may actually incentivize the crossing of a Rubicon in ways that are quite dangerous.
What is your view on term limits for legislators, but particularly for heads of government? Are they a good idea? Are they a bad idea?
Ginsburg: Well, first of all, the term limits for legislators is a separate topic and, generally speaking, not a good idea. If you think about being a legislator, it is like anything else: you get better with time, and you learn how to use those powers. You do not have the same fear of tyranny that you do with executive term limits.
It goes back again to The Federalist Papers. There were debates between the Federalists and the Anti-Federalists about term limits. They decided not to include them, but that might be because they thought that Washington was going to be the first president and that he was going to step down anyway. That is exactly what happened after two terms, and then we had an unwritten norm for a while.
Clearly, the trend in constitutional design in presidential systems is to have explicit term limits. The modal design is two five-year terms. That is the most common now. About 80 percent of presidential systems have some form of term limit. It is one of those things where I think there has been learning going on over time. Collectively, constitution makers are learning that term limits are good. The risk of tyranny is a real one.
One thing that term limits do is incentivize the leader to designate a successor. That is, they incentivize the rule of parties rather than personalities. Knowing that I am going to be out in ten years, I will have to find someone who can continue my legacy. That builds stronger parties, which are essential for democracy.
On the other hand, you have parliamentary systems where there are no term limits. I would ask you, as a German, did Angela Merkel stay too long? Is there a tendency to keep someone there because you are familiar with them, maybe longer than they should remain? We sometimes have very long parliamentary terms in some of those systems.
Mounk: I have mixed feelings about Angela Merkel. I think she is a very decent woman with broadly decent values. I also think that on the big questions facing Germany and Europe, she was persistently wrong. From getting out of nuclear power, which I think was a significant mistake, to failing to recognize what the drift toward illiberal democracy in Hungary meant for the legitimacy of the European Union, to being, despite her personal feelings about Putin, which were not very warm, very reluctant to make a break with Russia, pushing ahead with the building of Nord Stream 2. I think that, in retrospect, her approach to the refugee crisis in 2015 must be seen as a mistake for the German political culture. It has resulted in the Alternative for Germany, a more extreme populist party than in many other European countries, now being, according to some polls, the biggest party in parliament. So I think that history will not look kindly upon her.
Would many of these mistakes have been fixed if she had been term-limited and somebody else had come into power? Perhaps. Perhaps there would have been different members of the CDU who would have taken over and been more willing to act differently. The record of the two governments that followed her does not necessarily suggest that. Olaf Scholz, a Social Democrat, was a very uninspired chancellor, devoid of vision or charisma. He made his way as the prime minister, basically the mayor of Hamburg, since it is a city-state. It recalls Winston Churchill’s line about Baldwin and his municipal mind not being able to understand the stakes of the moment.
Now power has reverted back to the Christian Democratic Party under Friedrich Merz, an internal party rival to Merkel, who rightly criticized her on some of these points. But his ability to make a difference in setting Germany up strategically for a better future does not look promising about a year into his first term in government either. Would it have been better without her? Hard to say.
There is also an interesting difference in the internal culture of political parties. What is striking about Germany is that political parties are very loyal to their leaders. The CDU in German is sometimes called a Kanzlerwahlverein, an association for electing the chancellor. In contrast, the Tories, the Conservatives in Britain, have a long tradition of rebelling against their party leader. Margaret Thatcher, one of the most impactful and popular Conservative prime ministers, certainly among Conservatives, was ultimately pushed out of office not by the will of the population, though opinion polls played a role, but by a rebellion of her backbenchers. So was Boris Johnson. So were many other prime ministers that the Conservatives have had in between. That is very interesting. Internal party cultures make a big difference as well.
Ginsburg: Parties turn out to be critically important. One of the theories of why we are seeing backsliding around the world is, as Kim Lane Scheppele put it, “the party’s over.” Parties have become weaker, generally speaking. They serve, perhaps just as you said, instrumental purposes—a club for electing the chancellor—rather than being part of people’s identity, day-to-day lives, and such. You cannot really have democracy without parties.
That is above my pay grade to figure out how to revive parties. I am pretty critical of both of them in the United States right now, but we need them. We need them to do a good job, and we need them to do their job, which is to look to the midterm and long term, and not simply follow the winds of whatever the trend of the moment is, which is what we see on the Republican side.
Mounk: One of the interesting things is that political parties are by far and away the most important institutions that weren’t theorized at the birth of modern democracy.
Ginsburg: Yes, of course, Madison thought they were the enemy—faction. He was so worried about faction that he actually did not think parties would form under his Constitution. By the way, that leads to a brief point: the absolute worst design decision in the entire American Constitution was his decision to give the drawing of electoral boundaries and the time, place, and manner of elections to state legislatures. He did not think there would be parties. He thought these would be grand old men of each state, and they would be public-minded people. That has been a very consequential, very bad decision that he made there.
Mounk: I want to go back to something you mentioned a few minutes ago, which is the formalization of political norms. The United States had this norm that presidents should be limited to two presidential terms, established by George Washington when he declined to run for a third term. This was followed throughout the 19th century, even by presidents like Andrew Jackson, who you might have expected not to follow it. Then FDR broke it. The response to that was to formalize this political norm.
In a time in which many politicians seem to be violating fundamental political norms in ways that often do not break the letter of the law, do not break the Constitution, but go against political traditions that are widely thought by political scientists to be an important aspect of how the system operates and survives, one natural response is to go around and systematize all of those norms. To take stock of all the norms in our democratic system that are really important and to formalize them. That is going to protect us against those kinds of demagogic politicians.
Is that feasible? Is that sensible? Would that end up constraining us in ways that would backfire? Is there any particular reason to think that a written Constitution like that of the United States is, in the long run, superior to an unwritten constitution where fundamental norms are implicit in the political system, like in the United Kingdom? What does the comparative perspective suggest about that?
Ginsburg: I do think written constitutions are a useful technology, and I think they are an improvement on systems with unwritten norms. Of course, every system has unwritten norms in the background, but clarity of rules can help when there is a crisis of some kind. It can help decision-makers focus on what needs to happen. I think written constitutions are good, but they are always playing a little bit of catch-up. The Founders were focused on what they thought were the problems in the British constitution. Latin Americans were looking at the American one, trying to improve on that. There is a sense in which we are always searching for institutional designs that never fully satisfy us.
Constitutions have gotten much longer since the 18th century. The average constitution now has to be three or four times the length of the U.S. Constitution. Some of them are really large. The Indian Constitution is like War and Peace. That reflects a kind of optimism about institutional tinkering and institutional management. Of course, it is not perfect, but I do think they tend to work.
In one of the studies I did with my co-authors, Zach Elkins and James Melton, we looked at what makes constitutions last a long time—what makes them endure. We discovered that the life expectancy for all countries’ constitutions since 1789 was only 19 years, which clearly is too short to provide a stable basis for politics. In looking at the factors that helped constitutions survive, one of them was a lot of detail. A detailed constitution becomes something that people really work with in their daily life. Politicians look to it, they amend it a lot. Those are the constitutions which endure—the United States notwithstanding.
Mounk: That is a striking fact about the average length of constitutions. To what extent is that a statistical artifact? A famous statistic is that two-thirds of people who leave prison today are going to be back in prison at some point in their lives. This might make you think that the overwhelming majority of people who have been to prison are in and out, in and out. That is not actually the case.
There is a small number of people who are in and out of prison over and over again. But two-thirds of the people who have ever been to prison have only been to prison once. Most people go to prison for something and then never go back. But because the smaller number of people who are in and out of prison end up overrepresented in the sample of people who are leaving—if you are just standing at the gates of a prison looking at this person who is leaving right now—there is this seemingly paradoxical disjuncture between those two facts.
Is it similar for constitutions? Is there a large number of countries that have constitutions that endure for a really long time, and then a smaller number of countries that change the constitution every five years so the number looks artificially low? Or is it the case that for most democracies they keep changing constitutions in that way?
Ginsburg: There are all kinds of different national patterns. For every United States, there is a country like Thailand, which has had 20 constitutions since 1932. They are one of those countries that are always cycling through them. But what is interesting is that you have countries like Mexico, which has a very enduring constitution now over 100 years old. There are only about 15 constitutions that have ever made it to the age of 100, and Mexico’s is one of them. It came to that after some experimentation and periods of great instability early in the country’s history.
So I do not think it is a statistical artifact. I stand by the statistics. But as with any statistical result, there are obviously anomalous cases, and the United States is one of them for sure. The fact that our Constitution has survived so long is really odd if you think about technologies from the 18th or 19th century that have survived. There are very few. We are not writing books with feather pens, and no one rides horses, yet we are still trying to muddle through with this governance structure, which is archaic and right now showing great strain.
Mounk: What does the experience of trying to rewrite constitutions teach us about the effect that tends to have? The American Constitution, as you are pointing out, is a very old document written in the 18th century. An additional fact about it is that it is extremely hard to amend, much more difficult than I imagine the great majority of constitutions in other countries, and certainly harder than the other constitutions that I know somewhat well.
It is very tempting, and there are voices in our politics saying, let us just shove this aside. Some of the Founding Fathers said they thought we should make a new constitution in a periodic way anyway. Let us write a new constitution. Of course, precisely in a moment when politics is extremely polarized and the stakes of politics are extremely high, I personally worry that this could go vastly off the rails. What you might end up with could be complete political stalemate, a much higher-octane form of politics while you are trying to figure out this new constitution, and possibly a very messy document that is much inferior.
I was speaking in Chile at the time they had decided to write a new constitution. They had an election for a constitutional assembly in which the left won by a large majority and wrote a very long, complicated constitution that was promising people everything. It was very unpopular, and there was a ratification mechanism. A big majority of Chileans voted against ratifying that constitution. They then had a new election for a new constitutional assembly, and the right really dominated that one. The right went to work to write its preferred constitution. Once again, it turned out to be unpopular, and Chileans voted against it. Now they continue to have the constitution they had before.
What do you think about the wisdom of rewriting constitutions in the way that some people hope for in the United States?
Ginsburg: I think Chile is an important case for us to study. As you point out, both sides, when they had the opportunity, overreached. They tried to get everything they wanted in their particular constitution.
So they are muddling through with one written by Augusto Pinochet, the dictator. It is not perfect, but it seems to have stabilized Chilean democracy fairly well. I think there are great lessons for the United States. I share your instinct. If we were to have a new constitutional convention, which is allowed under Article V of the Constitution, we could have a new convention. Imagine what we would spend our time talking about. It would be about abortion and bathrooms and things like this, not fixing the fundamental problems of American governance. I do think it would be a bad idea for us to launch another effort.
Mounk: Final question about constitutions. For all the reasons you outlined, I think it would probably be a bad idea to have a new constitutional convention in the United States. I have great trouble seeing that go well. But imagine an alternative scenario: a scenario in which some very renowned constitutional scholar—let us say Tom Ginsburg—were to be appointed to be, to coin a phrase never uttered before in American politics, “dictator for a day.”
You would have one day to amend and change the U.S. Constitution. Let us say that, since absolute power corrupts absolutely, one day is not enough to corrupt Tom Ginsburg. You are doing this in a public-spirited manner to improve the functioning of the U.S. political system and to minimize the chance that American democracy collapses over the course of the next, let us be ambitious, 100 years. What changes would you make?
Ginsburg: I would undo Madison’s error of assigning districts and such to the state legislature. I think that is a huge error, and it has created a situation where our politicians are more polarized than the voters, because the politicians draw districts that make them safe. That means they do not have to appeal to voters in the center.
To me, that is all a problem of gerrymandering and district design. If we had a bipartisan or neutral way of doing that—many countries have electoral commissions that draw the lines, and they seem to do a very good job—that would be the linchpin reform for American politics.
There are lots of other things, such as the Electoral College and many other provisions that are poorly designed. Every year I ask my students, “What is the dumbest provision in the U.S. Constitution?” You get various answers, but I think that changing the fundamental organization of politics is especially important here.
Mounk: One of the aspects of the U.S. Constitution that I personally like very much is the First Amendment, which protects citizens against arrest and imprisonment for what they say, among other rights we derive from it, in a way that today cannot at all be taken for granted in many supposed democracies around the world. I have written on Persuasion, on my Substack, about the extent to which, for example, Britain and Germany and other European countries now routinely arrest and sometimes jail people for their online political speech in ways that really worry me.
At the same time, the First Amendment goes only so far. In order to have a genuine culture of free exchange in society as a whole and within our universities, you need norms that actually protect free expression in ways that go beyond the First Amendment.
What went off the rails, particularly in universities, with regard to free expression over the last years? What can universities do to ensure that campuses once again become places where faculty members, students, and other members of the community genuinely feel empowered to express their views, rather than, as many surveys suggest, self-censoring to an astonishing degree?
Ginsburg: There has been a lot written about this, and I know you have had Jonathan Haidt on Persuasion before. I am persuaded by his view that social media really did change things. When I was in college in Berkeley many decades ago, there was a sense that everyone was on the left, but it was fun to argue and take positions that the other side might have, to work out the best arguments, and to sharpen your own arguments through debate. Something has happened in American political culture where that is no longer the case. We want to hear only the arguments of people we agree with. Social media has polarized people, and it has had a particularly pernicious effect on young people.
For the last decade or so, too many people do not want to be exposed to arguments they already think they disagree with. That is fundamentally illiberal and against the mission of education. Then we have had the phenomenon of people exploiting the open environment of universities in order to get social media followings. Think of people like Milo Yiannopoulos, who had no academic contribution to make, but exploited the fact that people were going to protest him in order to get more followers. This has been very corrosive to free expression in the university.
More generally, free expression is a kind of semiotic here. It is not what we actually mean in the public sphere. In democracy, we want people to say whatever they want without constraint, subject to some very small number of limits. In a university setting, we are about something different: we are about exchanging ideas. That requires a lot of norms and rules about how we can say things. Otherwise, we are not going to have productive speech.
I tend to focus on expression in service of inquiry. I run something at Chicago called the Forum for Free Inquiry and Expression. In a university, the fundamental value is inquiry. We want to be learning, and we have to be inquiring into the state of the world and figuring out what to do about it. That requires free expression. It requires give and take, but it is not an unlimited form of free expression. We should derive our rules in some sense from that fundamental purpose of inquiry.
We are at a very odd juncture, because the right was really pushing for the idea of getting back to free speech on campus. But once the Trump administration was in charge, they were not actually very committed to that, as FIRE and Greg Lukianoff have demonstrated empirically. So it is up to us. We have to reclaim a culture in which students can talk to each other, professors can talk to each other, and we all have the spirit of trying to help each other learn through respectful argument rather than simply yelling at each other and scoring points for some external environment.
Mounk: The Forum at Chicago, of which you are the founding director, is a major initiative. It is one of the biggest earmarked donations in the history of the University of Chicago—$100 million. What does the Forum do? How is it that institutions like that can actually animate free inquiry and free expression on university campuses in other places as well?
Ginsburg: We are seeing a lot of initiatives around the country, so it is very exciting, and there are different things going on at different campuses, which is appropriate. We are fortunate at the University of Chicago to be at a place that has stood for academic freedom for its entire existence. Unlike Harvard, we were founded in the Progressive Era of the late 19th century, and so there was a strong commitment to democracy, science, free expression, and academic freedom.
Part of what we do is orient people who come to the university. That includes students, faculty, and ideally even staff. I would hope to have everyone learn about the tradition and the way this university has approached those issues. You do not have to agree with it—it is not propaganda. Not everyone has to agree with, for example, the Kalven Report, which says that the university does not take positions on issues of the day and is neutral with regard to any. We do not have a foreign policy, for example. Not everyone has to agree with that, but they at least have to understand it and the purpose of the conversations we are having. Orientations are good and important, and I think a lot of places are starting to take this more seriously. Daniel Diermeier at Vanderbilt is doing a number of good initiatives.
Another thing we do is provide funds for people who want to research any aspect of free expression. We give research grants and conference grants to people all over campus. That ranges from Islamic history to contemporary social psychology to AI models and free expression. We try to research these topics in a very serious way. We also have a lot of events, sometimes ones we put on ourselves, and sometimes ones that others around the university want to organize. Sometimes that takes the form of two people just disagreeing about something.
A real success story has been our student group. We empower students to invite the people they want to hear, but the basic rule is that no one’s views go unchallenged. This past semester, for example, we had Francesca Albanese, the U.N. Special Rapporteur on Palestine, who had been banned from the United States by the Trump administration. She appeared virtually at an event. We also had John Eastman, Trump’s lawyer who helped come up with a theory to overthrow the election on January 6th, because students wanted to invite him. In each case, we had a format that worked. For Eastman, for example, we required everyone to read his paper beforehand. He gave the paper, and the students essentially shredded it to pieces. There was nothing left of the argument afterward. We did not protest him. We did not shout at him. That is what we are trying to encourage.
Of course, as that example suggests, it requires a lot of rules. We, in some sense, teach people how to protest. If they do not like a speaker, there are many things they can do. But the one thing they cannot do is disrupt. We cannot tolerate that, because it is fundamentally patronizing to the listeners. That is the problem with disruption: you are saying the people in the room cannot make their own judgment about this speaker, because the words are so poisonous. You cannot go down that road.
So we are trying to create a small liberal sensibility in the university by empowering as many people around the university as we can. It has been a lot of fun and a lot of work. But we also want to share the ideas with other schools around the country and exchange views about how to advance this. I think it is essential.
Mounk: How receptive have you found the university community to be to those arguments and concerns? I teach about free speech in some of my courses, and I find that there is a small number of students who are already committed to free speech in a very principled way. Then there is a small number, perhaps slightly larger, of students who have deep objections to the idea of free speech, often from a so-called “woke” point of view, saying that the harm that emanates from offensive speech is so great that it should obviously be banned from campus, because that is not the kind of community in which people should be expected to live.
By far the largest number of students I deal with do not have principled views about free speech one way or the other. They have not thought about it very much. Most of them have never really encountered basic arguments about free speech in their education. These are very smart, well-educated young people. I remember one student in particular who was excellent in my class and a very thoughtful person. She responded to what I think is the most basic argument for free speech, namely: We might want to ban all kinds of horrible speech, and it might be better if we were able to do that. But are we going to agree on what qualifies as such speech? Can we have confidence that the people making those decisions are systematically going to be on the side of the good rather than the side of the bad? Might they not sometimes ban the speech that you think is particularly important? She looked at me with big eyes and said, I had never heard that argument. I had never considered that argument.
So I am curious about your experience in this regard. Do you find that you walk into a room where half of the students really believe in free speech and half really disagree with it? Or do you normally walk into rooms where many people have not thought hard about these principles? What has your experience been at Chicago?
Ginsburg: I think we are lucky, because we do have a bit of a brand of free speech, so people select in knowing that is what is going to go on. But I agree that we have to remind people in every generation of this fundamental argument, and it is the argument of the First Amendment. It is basically distrust of the regulator. Yes, we know that lots of speech is really bad and really painful, and we do not like it, we do not value it, and we want to discourage it.
But who are we going to trust to make those calls? That is true in the country, and it is true on university campuses. Who says that some administrator in the provost’s office should be the czar of speech? Why should we trust that person’s values? Ultimately, I think of free speech as an absence of constraint, but that is not enough. We also have to acculturate people to using speech in useful ways, not thinking, that person said this, let’s go punish them, but asking, how can you engage that person in a way that makes it a productive conversation?
I will not say it is not challenging. This is partly where the broader environment is not helpful. Nowadays you might get some students who want, as part of their career aspiration, to be Tucker Carlson or something like that. They come in being troll-like in a classroom, and that does not work very well. It is not conducive to other people’s education. That is where good teaching comes in. All of us as teachers have had these moments where they are very challenging, and you have to channel the conversation in particular ways.
At the same time, there is the graver risk, which I think we were subject to for the last decade or so: there was a whole side of the political aisle that would never express itself in class. I will give you an example. I have been teaching for 25 years, and I asked the students, if there is one provision of the U.S. Constitution you could change, what would it be? The same question you asked me. A couple of years ago, for the first time, someone raised their hand and said, I would have an amendment that said life begins at conception. I was shocked to hear this, even though I pride myself on having friends and relatives who are on the other side of the abortion debate from me.
I had just never heard that in the classroom. I said, okay, that is an interesting one, and we went on to the next student, who had something completely different. It was okay. People were able to do it. But the very fact that I was surprised by that, as someone who has been in universities for more than three decades in one form or another, suggests that we have not been reflecting the views of large parts of the American public. We have to make an effort at that, but in a way that is productive for everybody.
Mounk: We agree about many things, perhaps too many for a conversation to be as lively as it could be. I wonder whether we might have a slight disagreement on one point, and I want to go back to it. You were saying earlier that the way we should think about free speech on the university campus is shaped by the purpose of the university being about inquiry.
In terms of a justification for why we should care about free speech, I agree with that. Academic freedom goes beyond the First Amendment protections for free speech in important ways. The reason for that is that we know the most important contributions to academic research, and more broadly to public intellectual life, have often been hugely unpopular in their time. If we want universities like Chicago, or like Hopkins where I teach, and like all the other great American universities, to continue to make those contributions, we have to make sure that researchers are able to take unpopular positions. That is true whether those positions are unpopular with the president of the United States, with activist students, or with colleagues who are wedded to a particular methodology or a particular set of orthodoxies in some field.
It may be that those views, to the average American, seem completely unacceptable or even difficult to understand, but within their fields they are very difficult to argue for. The more we are able to empower free inquiry in that sense, the more the university will live up to its purpose.
Here is the concern I have. This can also be an argument to say: The purpose of academic freedom is free inquiry. So when a biologist expresses a view about trans questions, that might be vaguely related, but it is not really in the course of their academic research that they are expressing those views. If those views upset some students at the university, they should not be protected because they are not part of free inquiry. Or if a social scientist who mostly studies gerrymandering expresses a view about the conflict in the Middle East, it could be said, that is not really what we gave him tenure for. That is not really his area of expertise. So perhaps we should constrain that in some way.
I assume you think that in those cases the speech should not be constrained. But how should we think about that? When we say the purpose of these norms within the university is free inquiry, how do we make sure that does not become an argument to suppress speech that is not directly within the core field of academic expertise of a faculty member, in ways that would deepen the taboos we already see?
Ginsburg: It is a complex question, because academic freedom is a complex idea. The idea of academic freedom is that I have the right to pursue inquiry in my field in whatever way I want, and I can talk about that in any way I want. But the key qualifier is in the field. So who decides what is in the field and what is not? I can go into my law class and teach about constitutional law, but I cannot teach about the laws of physics. I could be fired if I insisted on teaching the laws of physics or talking about nuclear theory. I am not being hired to do so.
Academic freedom is not as broad as free expression. It is more limited. We are not allowed to lie in academia, so it is actually quite constrained, but it is always bounded by disciplines. This is the Achilles’ heel of it. If I am a historian, I can answer historical questions, but I cannot talk about chemistry. Who decides what is in or not? It is a decentralized community of those who make up the discipline.
One of the challenges of our moment is that many disciplines are in trouble. To quote a piece I wrote a few months ago for Inquisitive Magazine, disciplines are becoming undisciplined. One sign I focus on is: does the discipline have a foreign policy? The horrors of the Gaza war have really brought this out. The American Historical Association has decided it is a boycotting discipline, or the anthropologists are a boycotting discipline. To me, that has nothing to do with anthropology. That has to do with foreign policy. Disciplines need to be more disciplined. They need to focus on their core methods of inquiry, and they can use those to bound speech and limit what academics can say.
You also raise the issue of what we call extramural speech. I am a professor, but I also have First Amendment rights. I can go on Twitter and say whatever I want as a citizen. The academic freedom point is that I cannot be punished as a professor for exercising my free speech rights. The fear is that if universities were allowed to look at everything everyone says, and we insisted that professors always act with decorum and ethically, there would be a moral hazard. Administrators would come in and fire professors they disagree with, or professors who did not vote with them in the faculty senate.
That is a more limited aspect of academic freedom, and it is very hard for the public to understand. Parents might think: I am sending my child to this college, and this professor is going on a rant on Twitter about something they do not know about, being offensive, calling people terrible names—how can that be? I am sympathetic with a parent who would have that view. I think we as professors should behave more responsibly. But again, the question is: who is going to make the call?
As a matter of conventional understanding of academic freedom in the United States, academics are free to engage in extramural speech. Intramural speech is produced by distance.
Mounk: I think this is where we get to the crux of it. I agree that if you are hired to teach intro-level math and, instead of teaching intro-level math, you start to go on about controversies regarding trans rights or the conflict in the Middle East—and we are not just talking about a stray remark or a half sentence in response to an off-topic student question, but half of what you do is to go on about that—it is perfectly fair for the administration to say, “Either you start teaching math or you are out of a job.”
I think the concern about extramural speech is that it can create a very stifling campus community, where people can look at comments faculty members make, including some generally offensive comments, like in the case of Amy Wax at the University of Pennsylvania, and say, we are going to take disciplinary action against you on the basis of that extramural speech. You are potentially handing administrators many excuses to punish anybody who flouts campus orthodoxy. So you are describing what the current state of the law is. What do you think it should be?
Ginsburg: I think we need to do two things, consistent with this discussion we have been having about norms. We should encourage our colleagues to act like grownups and not like your average Twitter user. It cannot be a condition of employment, but you are a professor. This is such a privileged position. You have control over young minds. You really should act like a grownup, and I think we should encourage that on the one hand.
On the other hand, I think we have to maintain the rules of allowing extramural speech. In the case of Amy Wax, I do not think she should be fired. I disagree with her. I have heard her speak. I do not think she is good at all, and I think she is a racist. I will say that. She has made it very hard to put her in front of students in the classroom because of her extramural racist speech. Yet the line drawing is so tricky that I think they should come up with another solution for her.
There are other solutions. There are many things the administration can do other than fire her. I think they are doing some of those things, but I do not think she should be fired for her extramural speech alone.
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