(upbeat music) - Hello and welcome to "Prairie Pulse."

Coming up a little bit later in the show, we'll profile two traditional Nepalic musicians but at first joining me now, our guest is Dr. Ryan York from the North Dakota State University Center for the study of public choice and private enterprise.

Dr. York, thanks for joining us today.

- Thank you for having me.

It's great to be here.

- Well, you're here to discuss the U.S constitution, a field of expertise of yours, I understand.

But before we do that, tell the folks a little bit about yourself and maybe your background.

- Yeah, absolutely.

So, as you said, I work with the center for the study of public choice and private enterprise at North Dakota State University.

And one of my key roles there is actually undergraduate program director, where I work with a variety of undergraduate student programs.

One of which is focused on the U.S constitution where we conduct a reenactment every year.

There's been a little bit of media coverage about it where students actually get in the sort of space of those that were there at the constitutional convention, and talk about some of the issues that's come up.

My own background is mostly in public policy.

So all the questions that you'll ask about the constitution I'm probably gonna respond with how it affects public policy and what are the implications of that?

I'm not a constitutional lawyer, I'm not a historian.

And I must say all the opinions that I will share today are just my own there, not the opinions of North Dakota State University or the center for public choice and private enterprise, you just get me.

- Well, that's okay.

And with that disclaimer out, what made you fall in love with the U.S constitution?

- So, I have been a giant constitution nerd for a long time since I was a kid.

So in elementary school, one of the things we did a great teacher set us up to read the constitution and then talk about it.

I mean, this is we you're seven or eight or nine years old and we start to read it.

And it inspired an interest in me to begin to explore the constitution itself, the American founding, and I used to cry.

My parents used to drive across the country transporting school buses.

They're both school bus drivers.

And so we, our vacation often was bringing a school bus back from the East Coast to Utah.

And I became known as the brown sign kid who made them stop at all the historical markers across the country.

I have a cousin who still cries in agony whenever she sees a brown sign because of it.

But it's the idea that we both have a past, and that past influences how we make decisions today.

I think that really keeps me in love with the ideas of the constitution, coupled with the fact that it still works by and large with all of our troubles, that the constitution still works for us today.

- With that said, can you give us a brief history on the constitution?

You know, who wrote it and who wrote the bill of rights?

- Yeah, so the constitution was a group project, a giant group project in Philadelphia.

where they came together to try to hammer out, a bunch of differences from the different colonies that would become the states.

Who all wanted somewhat different things in the new nation.

They had thought a revolution with the,,, from the British, they had won by some miracle, if you're a betting man, you wouldn't have bet on the colonies, but they managed to win the war.

And now they have to build a government after their first try.

So they first tried a loose agreement known as the Articles of Confederation, and they don't work because everybody's able to do exactly whatever they want and participating with the national government is basically voluntary, particularly in providing money.

And as a result, things didn't look particularly bright for the new nation.

And so in the late 1780s they come together to write the constitution with the idea that they're going to have a governing document that will bind the nation together in a way, provide a way forward for the longer term and ultimately written constitutions, go way back.

"The Magna Carta" is probably the one more people are most familiar with the idea that there's a set of written laws that everyone including the Monarch in Britain or the president of the United States must obey.

And that's the goal of the constitution but it's also a document that comes about as a set of compromises.

And if we read the text, we can see those compromises.

They sort of leap out at us from the very beginning.

- Well, and we're gonna get into some of that, but how does all that fit into our modern world in terms of practical public policy?

- Yeah, so, one of the things that comes up is we often talk about Congress needs to do this or Congress needs to do that.

And in most public policy questions that's right but Congress or the president doing things exists against the background of this fundamental set of rules.

And so one of the things that policy sort of scholars and students have to remember is, the choice that is not actually unlimited in American Public Policy.

It's bounded by the rules of the constitution which created a federal system, reserving some powers to the States, giving some powers to the national government, leaving some powers completely off limits to government all together in the form of individual rights.

And as a result, the choice set is as an economist I would say bounded meaning limited.

And so the constitution provides a framework that policy has to hang on because it's sort of the background set of choices that all policies made against.

- Well, why does there seem to be so many different views, from person to person or judged to judge either?

- Well, the Constitution is not a particularly long document and it's not long for a lot of reasons.

One of which is it was a compromised document.

You had to get most of the people in the room to agree to it.

A number of the original States never actually ratified in the initial days of the constitution.

If they had to get to a threshold for it to go into force.

And so it was a compromised document.

And beyond that, the power to interpret the constitution, wasn't resolved in the text itself that comes about later with John Marshall and the Supreme Court who claims for the Supreme Court the right of interpretation to judge laws against the constitution itself.

And as a result, different approaches to how to interpret the constitution have developed across the couple of hundred years of American history in American jurisprudence.

And we've really ended up with three today.

The first is the Originalists, these are Scalia type folks, folks that look to the original meaning of the text as it was in the time it was written.

And then there are the text jealous who looked to it, try to play meaning of the text who read the constitution and interpret it based on what the words say and what they mean.

And then there are those that are often called the living constitution sort of approach, which is they look at what was the goal of the constitution, and interpreted in light of goals of equality and fairness and equal rights and interpret constitutional prisons in light of that.

All of which are not unreasonable approaches to the constitution, but they can end up with very different understandings of what the rules of the constitution way down mean.

And it provides a fascinating set of research questions for scholars, but it can be somewhat frustrating or confusing.

I think, as we try to make policy in light of how different interpretations happen.

- Okay, well, you know, trying to think about January 6, and this has come up numerous times in conversation with protestors at the Capitol they were there hoping to overturn the election results and maybe get vice president Pence to discard the electoral college results.

What does the constitution say about the electoral college and what are your thoughts on what happened?

- The constitution says exactly what happened which is the States are in charge of the elections, the States select electors, those electors are...

The names of the electors are sent to Washington, D.C.

The electors vote in their respective state capitals.

And those votes are binding on the vice-presidents, as the president of the Senate.

It's exactly what vice president Pence said.

It's exactly what he did.

And it's what, as soon as people started talking about that he should try to overturn them.

My response was that is not a possibility and it's not going to happen.

I think frustration that boiled up was a result of the fact that elections are left at the states, elections are state responsibilities and states are left to judge the elections based on their own laws and their own interpretations.

And so as a result, there is going to be a set of different standards across the country.

Now we might not like that reality but that's the reality that the constitutional order sets up.

There are some things states can't do, like you can't refuse to allow people to vote based on race or gender or those sorts of things but those are constitutionally protected rights but the manner, the place, the form of elections are really state level decision.

- Okay, well, let's talk about free speech.

It is a huge issue today and always has been for that matter.

But, you know, we seem to be seeing conflicts from the left and right about free speech, some believing with Twitter and Facebook, canceling free speech or are policing it maybe along with "Big Brother" stuff.

Can you comment on this and maybe, you know where is that going-moving forward?

- Yeah, so speech is this interesting problem for American history speeches are always been at the forefront of the American discussion and the constitution is fairly blunt on the subject.

It's one of the first rights in shrine but it's protections in shrine from government interference.

I have no right to show up on a private broadcast station and say whatever I want.

So you could say that's limiting my speech but that's perfectly allowable under the U.S constitution.

What can't happen is the government says I cannot speak or the government intervenes to prevent that speech from happening or punishes that speech.

And as a result we end up with a discussion about the concept of free speech rather than the constitutional right to free speech.

And I think the council culture discussions are about the idea of free speech because free speech as an idea is important to a robust democracy, a robust society where it values diversity and plurality but then much more narrower question of constitutional rights to free speech, involve government action not private action.

And so we can have lots of discussions about should Facebook cancel, but it's not a constitutional issue.

- So, in a free country is free speech essentially something that is often hard to listen to but still protected?

And what's that magical line on the issue?

- Well, the easy part of that question is the magical line is whatever the Supreme court says the magical line is.

And the Supreme courts had a lot of jurisprudence over the years about that line.

There have been a number of cases brought that essentially recognize that yes, uncomfortable even hateful speech, speech that we would find repugnant is protected under the first amendment.

The government cannot intervene to stop this, to prevent the speech from happening.

Doesn't mean that speech shouldn't be socially ostracized or people should express counter speech but the sum-up in most instances of how to deal with speech that is hateful or bigoted or evil, I think comes from the idea that the best way to counter speech that we don't like is with more speech.

And we watched this play out again, again and again where as speech gets responded to particularly when government doesn't intervene to set what the rules of the game are and really recognizes and values free speech.

We see lots of speech in response to terrible speech.

We watched it play out over the course from November all the way through January 6th.

There was lots of speech all around it and the speech there was lots of counter speech.

And so, I'm a fairly doctrinaire free speech person.

Government should stay out of the regulation speech.

And then I put a period at the end of that sentence.

Sometimes that's gonna mean, I hear things I don't like.

And I'm probably gonna say things that people don't like but we should have a dialogue either directly or in society at large, where that speech gets talked about and problematic speech gets dealt with at a social level, not a governmental level.

- Okay, we'll move away from free speech and talk about the second amendment.

- Sure, - Another article that leads to probably heated discussion, what does it say?

What does it mean?

- Yeah, so the second amendment is an interesting little piece of constitutional text because there has been an open and ongoing debate that has now been settled by the Supreme court.

It refers to a militia being necessary to the security of a free country, therefore the right to keep bear arms shall not be infringed for most of U.S history that was interpreted as an individual right, there were questions raised about whether or not it was an individual right and the court ruled in the last six or seven years that in fact it is an individual right and so the matter is currently settled.

The Supreme Court can always change their mind but ultimately the second amendment preserves the right of the people to keep in their arms but like all constitutional rights, it's not absolute.

And so the decision about where those boundaries are, will ultimately rest with the Supreme Court.

The answer I have to a lot of these questions, what does the constitution mean?

It means exactly what the Supreme Court says.

It means no more, no less.

- Okay, here's another subject, real quick "Roe versus Wade," you know, there's nothing in the original constitution that talks about abortion but so how was this case interpreted by the Supreme court?

- Yeah, so "Roe versus Wade" comes out of a period in the court history where they were exploring rights to privacy, rights to self-determination.

And ultimately the decision in Roe is tied to the right to privacy, there are spheres of life where government is not allowed to intrude.

Roe is a controversial case.

I think that's given.

I don't think anybody would disagree with my assertion that Roe is controversial, whether or not row is good.

Jurisprudence depends on your perspective about any number of things, but it grows directly out of the concept of a right to privacy.

And this is, I think an area where Supreme Court jurisprudence is gonna continue for a long time where there's gonna be lots of discussion about is the right to privacy built into it?

Where does it come from?

Is it an equal protection?

Is it in the limits on government?

Does it reside in the ninth amendment, reservation of rights to the people?

If they're not specifically given to the states or to the Congress but it's an area that's gonna continue, abortion will continue to be.

And I think we'll always continue to be a controversial issue in American politics.

And one that I have lots of people on both sides of the issue that vehemently disagree and the Supreme Court we'll decide this question again and probably multiple times.

- Yeah.

We've got a couple more subjects and we don't have a lot of time but the equal rights amendment is making some news in North Dakota right now.

What is the ERA and why was it never an active?

- Yeah, so the ERA was a movement to enshrine into the constitution, equal rights between the genders between men and women.

It failed in large part because of a push by Phyllis Schlafly in the "Eagle Forum."

And it was in part in response to the feminism of the 1970s and the counter sort of pushed back against the feminism in the 1970s.

I am actually not a fan of the equal rights amendment.

I think that we get to the same answer through the 14th amendment guarantees of equal protection.

I have no issue with the idea behind the equal rights amendment but the Supreme court has the tools that already needs to do it.

And I think that it has the tools to do it across a variety of other areas of life that probably deserve similar consideration.

And so the more carve outs we create in the constitution the more difficult it is to use things like the 14th amendment in jurisprudence.

- You know, there's been some talk about the Supreme Court stacking, increasing the number of justices.

Is there anything in the constitution that limits the number of judges?

- No, that is an entirely a congressional decision by passing an act.

They set the size of the Supreme Court.

The Supreme Court is nine because that's what Congress decided it was gonna be.

Congress could pass and the president could sign an expansion of the court.

FDR tried this in the 1930s.

It pretty well blew up in his face.

And I am highly doubtful that there will be an attempt to stack the court again, partly because the nine justices of the court has become both an American tradition and something that works relatively well.

Other proposals, such as term limits and those things are more controversial constitutionally but I could see in a move to try to amend, to allow for term limits or rotation of the court that I think is far more likely than the stacking but that would require a constitutional amendment because of the life tenure rules.

- Yeah, yeah.

So why is it so hard to get a new amendment into the constitution?

- It was done that way on purpose.

It was meant to be difficult to amend.

It was in part because the... As I said, the constitution was a series of compromises and it was meant to be the overall governing law.

And as a result, it was meant to be difficult to amend.

And it was meant to try to prevent changes that were capricious or based on public opinion that was likely to change in the future.

And I actually think it's one of the great strengths of the U.S constitution rather than the weakness some people have believed it to be.

- Well, and it's a pretty good document.

That's held firm for many years.

- It has worked well for the American Republic for most of its history, and I expect it to continue to do so well into the future.

- Well, we're out of time, but if people want more information, where can they go?

- Yeah, so I would encourage them to go to the NDSU website, which is just ndsu.edu, and then in the search bar, put in the center for public choice and private enterprise or PCPE and they can reach out directly there.

The web link is long, and I do not remember it off the top of my head, but if you go to the search bar drop in, PCPE you'll search for my information and others in the center will come up and we're always happy to chat.

- Well, thanks so much for your time today.

- Yeah, I appreciate it.

Thank you so much for having me.

- Stay tuned for more.

(gentle music) - Damber Subba and Punya Ghimirey are remarkable musicians who play and perform traditional Nepali music.

They are both originally from Bhutan and as refugees eventually found their way to Fargo, as part of the North Dakota council on the arts folk and traditional art apprenticeship program Damber and Punya are preserving Nepalic music.

(singing in foreign language) - When we sing, it brings a great pleasure for us to perform in front of people.

- When i start performing, I feel really proud and happy because all people start cheering up.

They says that you did a really great job.

That really motivates me to go further (singing in foreign language) - We came from Bhutan and to eastern part of Nepal, and we stayed there in one of the refugee camp.

We stayed there almost 19 years, and then it was in 2010 I came to United States and Fargo.

- When I was back in Bhutan, I learned my traditional songs from my elders.

They used to sing, dance in our village.

I used to go there watch them dance, watch them sing.

So I also got motivated to learn our traditional songs.

- I used to live in another refugee camp.

So we were not together at that time, but I used to hear his name so many times.

I got the chance to meet Damber when he was performing in one of the states program that was for a cultural show.

- we used to gather sometimes in a special location.

So from that time also, he used to learn from me and he used to ask some questions about music.

First he came to Fargo, and when I came here, he knew that I came here in Fargo too.

So he just found me.

I was really very happy.

I have got one friend to keep going my music.

- I was so very happy that he came to Fargo.

Even if he was not coming here, if he was going to another state in U.S I was thinking that I will maybe move to that state or do something to learn from him.

From Damber, I came to know that there is a program that keeps opportunity to learn music.

I decided to join in the program.

It is a very great program.

It does take care of our music.

And we also flourish our music to our coming generations.

(bright harmonium music) - Harmonium is kind of a universal musical instrument in any kind of genre, like we have in Nepalese music, we have pob genre, we have rock song too, we have typical traditional song, we have folk song too..

So in each and every genre we use this instrument.

It helps a lot for the musicians and for the vocalist also.

- I actually like singing better and I also like to write a song, I like lyrics.

To sing correctly and perfectly, we need musical instrument.

For our songs, for our cultural song or any type of song.

Harmonium is the best musical instrument.

So I am learning harmonium through this program also.

Damber is very good teacher, because he's very detailed in everything.

If I jumped very small thing then he will notice that and he correct that thing then in there.

So he's really a good teacher.

(singing in foreign language) When I was learning harmonium from Damber, we decided to write one song.

I got to listen to so many songs from our great singers.

I tried to get those words, and I tried to get the ideas from those songs.

When I finished writing that song I gave it to my teacher Damber and he started composing the music on that.

- The problem is like we don't have a professional instrumentalist here, after I wrote a melody for that words, we sent it to Nepal.

So there we have a professional instrumentalists, and they made a track.

- We have a community here in Fargo.

So we celebrate our cultural festivals.

We organize a musical program, musical event, and those musical events for us is the place to perform a place in our hearts.

(singing in foreign language) - I just like to tell our upcoming boys and girls, our generations, that if they are really interested in knowing our cultural things they can contact us and learn from us.

We're happy to share our ideas.

(singing in foreign language) - Back in Bhutan, when I heard my elders singing, playing musical instrument, it was fun for me at the time.

I didn't feel the importance of music, because I was very little child and then I was just enjoying with them only.

Now I really feel what I have learned from them is great knowledge.

This music is kind of identity for us.

Music is very important part of us.

(gentle music) - Well, that's all we have on "Prairie Pulse" for this week.

And as always, thanks for watching.

(upbeat music) - [Narrator] Funded by the North Dakota Council on the Arts and by the members of Prairie Public.