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It got taken on January 6th, 2021. I was supposed to be on Capitol Hill that day.

Instead, I watched on TV hundreds of miles away as a horde attacked our so-called citadel of democracy. The tragic spectacle was both unbelievable and absolutely believable, given the history of the United States.

I have no doubt that there was widespread election fraud this past November, and I am not alone. Our country is defined by her great people and our democracy is defined above all else by our Constitution.

This nation is steeped in poetry and pragmatism and idealism and prejudice. In large part, this stretches back to that foundational document written nearly 250 years ago, the Constitution of the United States.

Today's discussion is about the Constitution and it is about the American people. At least 30000 new voters registered to vote in Arizona. All of these votes are unconstitutional. We have heard repeatedly argued that objecting to these ballots is unconstitutional and violates the rights of state legislatures. They would rather us affirm fraud and pass the buck back to states rather than following the process. Madison, Hamilton, Jefferson and the framers of the Constitution designed.

Days like January 6th and so many others in American history show us that this document doesn't promote equality or indeed freedom for everybody, and it's not even that democratic.

In the next half hour, I'm going to explore the United States's founding document and ask, what if it was different? What if it was better?

This is the BBC World Service. I'm Brian Palmer, and this is a constitutional conversation.

For most of my adult life. I have been in the optimistic camp, this is Harvard law professor Randall Kennedy.

For most of my adult life, I've been a person who was in the camp of, you know, black Americans who believe that we shall overcome.

And that camp is a very distinguished camp. Frederick Douglass was in that camp in the 19th century. Martin Luther King Jr. was in that camp in the 20th century. Barack Obama was in that camp in the in the twenty first century. And for most of my life, I have been firmly and frankly confidently in that camp. That is no longer the case. Let's not pretend the United States is a country of equals. My mother used to have a job in Misplay Lady's floor, as she used to say, yes, ma'am.

Yes, ma'am. And my father used to say yes, sir. And I used to hate that man's guts, saying, yes, I hated my father until I realized that he had to say it if I was going to eat. This is BBC Archive from 1964.

My name is James Cross. I'm 17 years of age. I was brought up in Harlem where things are not so cool. And every day when I pass by the school, I look up at the flag and I wonder, is there anything for me in that flag?

There's a quasi religious devotion to the American flag and the Constitution in some quarters. Marianne Franck's has written about it in her book The Cult of the Constitution.

The conversation about certain rights, the freedom of speech or the right to bear arms are not conversations about how best to interpret for the common welfare, but rather, I feel really strongly that it is this and the invocation of the Constitution. The invocation of these amendments is not a way to start the conversation very often, but rather a way to in the conversation by saying you may not like X, but the First Amendment says X has to be a true and therefore all conversation must stop.

One of the pillars of a free society is the right to speak out. Freedom of speech. It's guaranteed here in the United States, in the First Amendment to the Constitution. And I want to start by looking at that.

Is free speech equally free to every American know insofar as your speech requires certain things? Randall Kennedy, again, speech requires the capability to put it to use. So, for instance, if somebody has been deprived of education, one of the great acts of censorship in the United States was the enforced illiteracy imposed upon slaves, and one might say bringing it up to our period, the you know, the degree to which there are many people who have been deprived of educational resources, their ability to know about the world, their ability to express themselves has, you know, thereby been limited.

If the idea of the First Amendment is to protect freedom of speech, then it's been very effective at doing so for certain groups of people that we really look throughout history. We don't have to worry so much about speech by powerful individuals. There's been very little attempt to suppress their speech.

This may be a lot of things this moment we're living through, but it is definitely not about black lives. And remember that when they come for you at this rate, they will.

You don't like what this country stands for. You're not going to change it and take away all these things that Americans value. So much like if you don't like it, leave and go set up camp somewhere else. If your version of the First Amendment is never regulate speech, never intervene, no matter how injurious or harmful, then you're not going to just get more speech. You're going to get more speech from powerful people who don't have to worry about being harmed.

And you're going to get a lot of less speech from people who do have to worry about being harmed.

What we mean by speech might be obvious the right to protest, to write an opinion in a magazine or speak freely to our friends in a bar. But over the past half century, it's come to mean something more. In the United States, it's come to mean money to right now the First Amendment. That guarantee of free speech is taken to mean that you can spend as much money as you like on backing a candidate in an election. Lawrence Lessig is the author of They Don't Represent US.

Members of Congress and candidates for Congress are extraordinarily dependent on a tiny, tiny number of people to help fund their campaigns in America.

Members of Congress and candidates for Congress spending where between 30 and 70 percent of their time raising money, just sitting in a, you know, call booth, calling up people begging for money. And they're not calling the average American. They're just just randomly dialing on their telephone.

They're calling a tiny, tiny fraction of the one percent who they know are motivated to give money to political campaigns. And as they do that, that dependency manifests itself either subconsciously, they just, you know, begin to know how they need to bend in order to inspire that money, or sometimes quite consciously, they'll say expressly what they are interested in, knowing that that will trigger the funder to give them the money if they want.

The point is that system, that dependency, that's the core corruption of the American political system.

Powerful people have a louder voice than less powerful people. That is by design, the Constitution wasn't written by a representative group of Americans, but rather powerful white men, roughly half of whom enslaved fellow Americans who wanted to balance new democratic rights with stable governance. And by stable, they meant controlled by landowners like themselves.

I think there is a direct line between the fundamental flawed constitution and the events of January 6th, at least one way of reading what happens on January 6th is a very large group of people who are insistent upon the retaining of power in certain hands and who are driven to violence when they believe that that has been taken from.

The cynical but also accurate view of the Constitution at the time that it's written is it's it is literally for the white and the wealthy and the mail. And you have on January six, 20, 21, you have these hordes of people who are saying that is what government should be. And any of this movement away is wrong and illegitimate. And it will lead us down a path of thinking that we can resort to violence, to overthrowing a democratic government because we don't like the outcome.

It is very tempting to say that's not what Americans are all about. This is not who we are. But in a very literal sense, it is because that is what the framers were doing. They were concentrating power in the hands of the elite. What limitations do those historical roots place on the that document and the application of that document as a tool of justice, as a tool of justice our racist past imposes?

Quite stark limits, and we've seen them recently. Will the Constitution save the American republic? From this anti-democratic, you know, ethnocentric white supremacist politics. The Constitution alone is not going to save political decency in the United States. I'm not sure you can bake political decency into a nation's constitution, the First Amendment was written at a time long before the Internet, cable TV or even radio. Is it perhaps a provision that worked in the 18th century, but that hasn't kept pace with the times?

Here's Kimberly Whaley, author of How to Read the Constitution and Why the Framers were Worried.

Part of why there's a republic. They were worried about populism.

They were worried about lies traveling like wildfire on horse and buggy.

If you stood back and you asked what is causing that kind of poisoned political environment, I think it's less the Constitution and more of the evolving technology of media. You know, in a world where there's just a couple sources, you know, as we used to have in America with basically three broadcasting networks, that market inspired a kind of neutrality or nonpartisanship in the news that was presented. It had a dominant force and effect of tamping down the extremes and presenting a story of politics that in some sense all America heard.

But as we've moved into a world with cable television and the Internet, where there's not three networks, there's 30000 networks, and that is a problem to respond to given the First Amendment. But that's not a problem caused by the First Amendment. It's an arcane document.

The framers could not have expected this population growth. They could not have expected, you know, social media and the digital age.

That's dramatically altered politics. It's dramatically altered the trajectory of the law.

The law is not keeping up with all of that in the den with powerful people controlling the narrative. It's hard to tell right from wrong. There's a danger the sacred text the nation turns to the constitution becomes less a guide and more and irrefutable instruction manual. So what's right and what's wrong, what's moral and what is immoral? Does it even matter?

Marianne Franck's again, it's as if you are told here is the framework that you have to use all the time. And so you can't even imagine what free speech looks like if it's not the way the First Amendment has been interpreted as of today, it becomes this very limiting feature, right?

It's Blinder's in a certain way because people not only think they understand what those amendments mean, they think that the interpretations that they like are the only ones. And they can't actually separate that from their perceptions of morality or from logic. That is, the Constitution becomes logic. Whatever we think we like about the Constitution becomes the answer to what is more what is logical. You're listening to the BBC World Service, I'm Brian Palmer. In the midst of a constitutional conversation, the constitution in question is that of the United States, but it's important, according to Aqeel Rita Amar, author of a forthcoming book, The Words That Made us to look at the Constitution in its entirety and not just at a single document that sits in a glass case in a museum.

It's very important to distinguish between the founding document that emerged in America in seventeen eighty seven, eighty eight and our current written constitution, which is an intergenerational project. So the original constitution was pro slavery, and most of the original precedents were, in fact, prior to the Civil War, either slave owning plantation owners or northerners who were appeasers of Southern slavery.

So that's our original constitution, our founding document, which was deeply flawed. But that's not our written constitution today, because in the aftermath of the Civil War, there were three written amendments added to the Constitution that took a pro slavery document and made it stunningly antislavery. That encoded in the Constitution, a deep commitment to human equality, to birth equality, which was not in the founding documents. And then a later generation would come along in the early 20th century and add an emphatic commitment to woman suffrage if you go into a constitutional law class.

The case law created by the Supreme Court of the United States, that's part of constitutional law as well. There are all sorts of customs and understandings that I think are part of the Constitution as well.

Something that was firmly established in that written document in 1787 was the three branches of government. The legislative, you might know, is Congress, the judicial, the courts of the United States and the executive, the president. These are the foundations of American democracy, but for a democracy and apparently representative democracy, there are some distinctly unrepresentative elements. Let's take a look at the United States Senate. I have to use every resource available to fight this legislation. This is Strom Thurmond, which would give the federal government the power to force not only public immigration, but private immigration as well.

In August 1957, Thurmond got to his feet in the United States Senate and talked for more than 24 hours straight, a practice called filibustering. And why did he do this?

The senator from South Carolina was determined to block the 1957 Civil Rights Act, which was designed to secure and protect the right of African-Americans to vote Lawrence Lessig again.

But the Senate has done most significantly historically is block civil rights legislation from the end of reconstruction 1875 until 1957. Not a single civil rights bill gets passed in Congress because the South filibusters.

Let's talk about the filibuster.

What the Senate does is essentially block anything that can't easily identify 60 votes in its favor. And if it can't identify 60 votes in its favor, then the rules of the Senate basically mean it cannot happen.

Here's the other thing about the Senate. Each state has the same number of senators. They each get to Wyoming, population 500000 to senators, California population 39 million to senators. Why it goes back to the framers of the Constitution. Here's Kimberly Whaley again.

The smaller, less populated states were worried that if there was equal representation based on population in the Senate, essentially it would boil down to having a Senate that was controlled by the more populous states and that the less populous states would get drowned out in that federal government. And those members, those voters in those states would have no serious say in government.

So the Senate was never designed to be equal. Nor, by the way, was the Electoral College that we use to elect the president with these provisions in the Constitution have done is to give weight to the votes of the more powerful in society. Historically, that meant states with the greatest number of slave owners into the 20th and 21st century. It's meant less diverse states, which means minority voters have less of a voice in Congress than white voters. And that has very real implications for the kind of legislation that's passed in this archive footage from 1960.

You'll hear language that is of its time, but it may cause offense.

You say in a sentence to British viewers why you oppose this platform of the Democratic Party, which seeks to give Negro Americans their full rights under the Constitution. In the first place, it is contrary to the constitutional provisions of our Constitution. Why it takes away the rights of the state local self-government to control and direct the activities of their own affairs. The First Amendment inadvertently gives weight to powerful voices. There's an argument to say the Senate does it more overtly.

Although Akhil Amar says that in practice, the Senate is more representative than it was designed to be.

Even though the Senate is grossly malapportioned and more so today than the founding, the founding, the ratio of the biggest state to the small state, there were only 13 states was maybe 10 to one. I mean, today it's 72 and that's not great. But as a practical matter, the structural malapportionment is only modest because populous states tend to not always politically be aligned. And that's true for the small states as well. So, yes, California's underrepresented, but so is Texas and California is blue and Texas is red.

Yes, some small states are overrepresented, but they're actually states from different regions and with different perspectives. Rhode Island is overrepresented and so is Wyoming and so is Alaska and so is Delaware. But those states actually don't have very much in common. And so there's not a massive systematic underrepresentation of any particular interest.

The way that the Senate rules, meaning the filibuster rule, interact with this extraordinary inequality in state size means that there's a deeply anti-democratic influence or anti represented representative influence right at the core of our constitutional system. There's no justification for this. You know, people are talking about ending the filibuster.

We ought to be talking about how to end the Senate to change America. We have to change where power lies. Surely people would feel greater ownership of our democracy if their votes in elections were more equal.

Surely they would feel a greater sense of power if their voices weren't drowned out by louder wealthier ones. The constitutional flaws we discussed in this program are not an exhaustive list, there are a lot of issues with this founding document of the United States. But now we come to two inevitable questions. Could we really change the Constitution and would changing it make it better?

So when I was a young man, I used to think, oh, things could be so much better. Constitutions, too hard to amend to have all these genius ideas, and they just won't happen because he set the bar so high.

Now, I'm an old man, and I think, you know, what has to be so much better also be so much worse. We actually have amended the Constitution many times, you just can't do it today because there's not a consensus, but we've had many amendments in the past. And here's the key. Almost every amendment has made the system better. We added the Bill of Rights. We ended slavery. We promised equality to African-Americans and then to women.

Many, many good amendments, no bad amendments. By contrast, in California, the constitution written constitutions that are written constitution is very easy to amend. And there have been lots of good amendments and, oh, lots of bad amendments.

So the federal constitution, the amendments have almost always added to liberty, equality. And if you ask most Americans which constitution enlist your deepest loyalty, your state constitution or the US Constitution, I think most Americans would say that their deepest loyalty and affection runs to the US Constitution, which is the one that's harder to amend in the state constitution.

Does the answer lie in the document itself? There is a very pragmatic reason for wanting to believe in the Constitution, and that pragmatic reason is what's the alternative, the likelihood of the United States having a constitutional convention or how that would go that would sort of rework our founding documents or passing certain amendments as a political matter. That's probably not going to happen. And so without trying to idealize the Constitution or think this is the best way it could have been done, we can nonetheless look at the most aspirational parts of the Constitution, the most the parts that actually make the most sense today.

And we can commit ourselves to them because they're there. We don't have to force something there. They're actually in the Constitution itself.

My parents were born in undivided India under the British Raj. And every day I wake up and I thank my lucky stars, I thank God that they came to the United States because I have so many more options here than if they had stayed in India and had been born there. And this is not hypothetical for me. I have two dozen first cousins, big family, and most of them are not in the United States and they come in an instant if if they were allowed.

So I tend to be an optimist, in part because I look around the world and say the American constitutional project is still a pretty impressive project compared to the contemporaneous alternatives.

There's something in what these experts say amending the Constitution isn't easy and rewriting it, actually tinkering with the core document would be even harder. And who's to say who would rewrite it anyway? One thing that we should bear in mind is that the document was never supposed to be set in stone, we were supposed to argue about it, discuss it and change it. This constitutional conversation is not one we're having in the United States right now, but perhaps it's one we should start.

The Constitution of the United States, it's what we make of it, it's in our hands, it's not as if the Constitution is something that, you know, just necessarily stands in the way of of of of progress. It's what we do with our Constitution.

If we have the will to change it, if we have the will to interpret it in a way that's supportive of democracy, we all have a better democracy. The constitutional conversation was presented by me, Brian Palmer. It was produced by Glenn Tansley in Cardiff for the BBC World Service.

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