Noah Feldman,  American Legal Scholar,  Academic, and Author

 

92-157. Noah Feldman

SPEAKERS

Will Bachman, Noah Feldman

 

Will Bachman  00:01

Noah, hello and welcome to the 92 report conversations with members of the Harvard and Radcliffe class of 1992 and today, I’m very thrilled to be here with Noah Feldman, who was recently appointed the Arthur Kingsley Porter university professor. He probably wouldn’t bring it up, but I will, because it’s the highest honor that Harvard gives one of its scholars, and also one of the few members of our class has been featured in the Style section of the New York Times. And he can talk about that. He’s the author of more books than I can read in one breath, so I won’t, but we can bring them up as we go. I’ve read the first free chapter on Kindle of most of them so we can get into that. Noah, welcome to the show. Tell us about your journey since graduating from Harvard.

 

Noah Feldman  00:51

Thanks for having me. Will I know you’re somewhere in the like, 100 and 50s or 100 and 60s of the class, so you’re getting up to 10% of the class, it seems like, which is very, very impressive. And let me just start by complimenting you on having the brainstorm of an idea to get us all out there. Because I think someday someone could look back at this as a kind of cross section of who we were then and who we are now. And I think that’s that’s extremely cool. So thank you.

 

Noah Feldman  01:17

Let me say I feel like my journey post college has been, in a lot of ways, fully predictable, and then in certain at the general level, and then in certain specific ways more unpredictable. And the part that was predictable is I was, you know, like a lot of us, we were little kids who liked school, then we were high schoolers who liked school. I was a college student who liked school and a grad student who liked school, and so somewhere along the way, I concluded that school was the thing I would do for the rest of my life, and really with the exception of times when I’ve popped out into the real world for short periods of time, or when I’ve done long projects in the real world while still teaching, I’ve basically been involved with The University ever since I graduated college, with the exception of, you know, two years when I was a law clerk for the federal courts. So my predictable part is that I am an Academic today, and I’m an academic right here in 02138, you know, my office, one of my offices is one block north of the yard. My other office is a block south of the art and so that’s all super parochial, and to my mind, highly enjoyable, because I love the university so much, and I’m happy to talk about the university and how one can interact with it. But all of that is, is the part that I would put under the category of anyone who knew me and saw me, you know, spending most of my time the library would have, would have seen this coming, the part that’s our parts that are more surprising have been that, though my focus has mostly been on topics that I started studying already in college, namely constitutional law in the US Middle Eastern studies and history of ideas, with a little bit of, say, Humanities flavor thrown into all of it, I’ve had some very lucky opportunities to go out and get involved in real world projects, and so one was, I guess the first was when I got a chance to clerk on the Supreme Court for the late Justice David Souter. That was an incredible life changing experience working with someone who was such a scholar and a gentleman and a thoughtful a thoughtful justice, a person who made a real contribution, and a person whose values are very far from those that we associate with the contemporary political world. And then just a few years later, after the US invaded Iraq, and I was a baby professor at the time at NYU. In my first year there of teaching, or second year of teaching, I got the opportunity to go to Iraq to work for the US government in a non political appointment as the senior constitutional advisor to the Coalition Provisional Authority, which was the name we gave to our occupation administration, our civilian occupation administration in Iraq. And while I was there, I got the chance to work very closely with the Iraqis, who eventually drafted the Iraqi constitution. And, you know, I was still only 32 or 33 and that was just an unbelievable chance to see a field that I was going to spend my life on constitutions from the opposite end, instead of seeing them from the end instead of seeing them from the end of we’ve had a constitution for several 100 years, and how does it work, and how do we argue about it? Instead, it was, how do you start from scratch? And it was also lucky, because it gave me a chance to use the Arabic that I had worked on and the Islamic studies that I had done for my doctorate after graduating and put it into direct contest contact with Constitutional Studies in a real world scenario and environment. And that was almost unimaginably lucky and cool. And then I got another chance to do constitutional advising after the Arab Spring, this time in Tunisia, very different circumstances, this time not working for an occupier as. Part of an imperial project gone awry, but this time, just advising people from the Tunisian Constituent Assembly who had been elected and were trying to come up with good constitutional design. And I was able to travel to Tunisia five or six times and develop very close relationships there, and watch the creation of a constitution that worked pretty well for about a decade. It’s subsequently been substantially amended and changed and the Democratic advances that Tunisia made, I think, to some meaningful degree, have been reversed, which is sad, but it was another opportunity, a different kind of opportunity, to work on constitutional design and thereby be outside of the academy. The other experience that I had after that that was similarly surprising to me was in 2018 I was out in California. I was giving a talk at Stanford, after writing a book about James Madison, and I went to stay with my college friend, Sheryl Sandberg, who was class of 91 and I was thinking about writing a book about free speech in the era of social media. So I asked her if I could talk to some people who did content moderation at Facebook, where she was then COO and she said, Sure, and connected me to people. And afterwards, I went for a long bike ride that was much too difficult for me at the time. And, you know, got a little short on oxygen, which is what you need for your brain to really work well. And I had the idea that Facebook would benefit from having a kind of private Supreme Court. And the idea was that all of the companies privately made content moderation decisions could actually be made in a more public and transparent way, according to principles and the doing so would add to the legitimacy of their decision-making process. And to my total shock, she passed the idea on to Mark Zuckerberg. Mark got excited about it, and then the company built it, and I spent the next five years working directly with Facebook to design and build and people and then launch what is now called the oversight board, which still is the appellate body that hears cases from anyone who is a Facebook or Instagram user or any other meta product user who doesn’t like a content moderation decision that was made regarding them, and they can appeal it all the way up. And this was really cool, because it was like a version of constitutional design, but for a private company, and that private company had billions of users, and no one had to go to war or have a revolution at all. It was just an experiment, that experiment’s still running. And that led me to a kind of surprising to me, kind of side career advising tech companies on governance issues institutional innovations that can try to make them work better and more legitimately and broadly looking at the interface between free expression and ethics and tech and that’s a very fraught, complicated area, as you can imagine, that’s continued to be of great interest to me. And I guess the last thing I would say that was maybe a bit of a surprise, because I wasn’t a crimson person at all, that I’ve also had a sideline in journalism all these years. When I came back from Iraq, I got very lucky that Michael Ignatieff, who was at the time, a professor at Harvard and a writer for the New York Times, decided to run for Prime Minister of Canada, so to do that, he had to leave the New York Times, and he graciously recommended me, so I became a Times magazine writer again, having done nothing in journalism to earn it or deserve it, I’d written some books by then, but really almost nothing by way of journalism, and that turned out to be an incredible opportunity. I did that for almost a decade, and then I shifted to working for Bloomberg, for their their effectively their opinion section of Bloomberg, and I’ve been writing a column for them for now more than a decade. And so that’s also been a great life opportunity to be an active opinion journalist at the same time as doing my day job. And so I consider myself super lucky on those fronts, this is all professional. I didn’t say anything personal, which is, I guess, your classic Harvard College answer,

 

Will Bachman  08:50

well, there’s a lot to cover. You’re not even a lot more professional too, right? Like, I think you also have a podcast, and you are doing, I imagine, doing research, definitely.

 

Noah Feldman  09:03

So I’m always researching for a book, and the book that I’m working on now, the tentative title is the importance of being human, and it’s about, broadly speaking, what I think is going to be the big question for the next five or 10 years for all of us, which is for every human relationship that we’re accustomed to having, whether it’s at work, whether it’s in our families, whether it’s political, professional, in other ways, we’re going to have to ask, what is the value add of having a human being on the other side of that relationship? What is the importance of it being a human relationship. And in some cases, you know, maybe some kinds of customer support, let’s say, or, you know, maybe some kinds of online tutoring. Maybe it won’t matter. Maybe there’s no value add. Maybe in some senses, there isn’t. Might even be cases where there’s a negative value where, you know, there’s something that you would say to, you know. Relate to an LLM online that you wouldn’t say to your best friend, and it would be helpful to get it off your chest, but in many, many, many cases, there is significant value and even essential value to having a human to human relationship. And I think that there’s no one right answer to this question, and there are no one right set of criteria, but I think we’re all going to be asking it a lot, and so in the book, I’m going to try to try to lay out what I think are some good criteria for figuring this out. So I’m researching that right now by basically reading everything that I can get my hands on that anyone’s written about, AI, human interfaces, some things about whether we live in a simulation or not, which, spoiler alert, I don’t think we live in a simulation, and if we do live in a simulation, I think the upshot should be that we live exactly the same way that we would otherwise. So I’m reading philosophy, I’m reading literature, I’m reading social policy stuff, all in the hopes of guiding us to some kinds of rules and principles that we can use going forward. And I would just say about that. You know, not that long ago, we’re all old enough to remember when there were no phones, that is to say, no, no smartphones, and we live just fine. And in fact, we were pretty happy. And then they came, and they were nifty toys, and we thought they were great, and they facilitate all kinds of things. And now they’re kind of extensions of our bodies. And we never really stopped and thought about the upsides and the downsides of that. And here we’re faced with a new set of technologies that will probably even more transformational. And we actually do have a chance to stop and think about consequences, personally, for our kids, you know, for the people we know for our jobs. And I’m, I’m advocating for our trying to do that work of trying to, trying to figure that out. And as for the podcast, just to say I for three years, I hosted a podcast called deep background. I loved doing it. I did it for the media company that Malcolm Gladwell and Jacob Weisberg started. And then most two of those three years were mid covid. And so it was actually a little more than three years. Was more like three and a half. And a half. And when covid ended, I couldn’t figure out how I had had time to do the podcast. And I realized the answer was, it was covid. We were all extremely constrained and limited in what we could otherwise do. It was like, you know, see, the kids, you know, get on the bicycle if you could, if there was no one barring you from getting on your bicycle and do your podcast. So I decided to take a break from it when covid came to an end, and I plan to go back to the podcast soon in some slightly different form. I think the podcast that I had was very much a kind of NPR style interview show where I interviewed experts, and I think I’d like to develop it into something a little more free flowing and a little shaggier, if you will, a little less tailored. And where I’m working now on how exactly to do that,

 

Will Bachman  12:48

in your writing this book, in the process of researching the importance of being human, so far, what’s an area where you have changed your mind about human AI interactions as a result of your research?

 

Noah Feldman  13:03

That’s a great question. I think the first thing is, I realized I have to be extremely open minded about things that I went into the research process thinking, well, obviously that’s bad. So, you know, maybe one of the most controversial topics in this field is something I started thinking was obvious, and that is, if someone says that their primary romantic relationship is with an LLM or a chat bot, I wanted to say as a normative matter, you’ve got the wrong end of the stick. You’re not living the good life. This is not how you should be organizing your life. Now I’m not yet a convert to the school of thought that thinks that, why shouldn’t you have your most loving and committed relationship with a machine? But I have learned already in researching this that I have to take seriously the arguments of people who say, Well, this is the best that’s available to me, and also the arguments of people who say it may not be the only thing that’s available to me, but there are similarities to reading fiction or to playing online video games or to being involved in other kinds of activities that are cultivating of our creativity, our imagination, our fantasy life. And so it’s too simple to just immediately cut to the chase and say, Look, this is wrong. So that’s a, you know, that’s been getting me thinking. And it’s a good example of where the case that I began by thinking was the most obvious case of where it’s very valuable to have another human on the other side your romantic relationship. Even there, you can’t just go without saying. You can’t just assert that and assume that everyone’s going to agree. I think a lot of people already don’t agree, and we’ve already seen that when OpenAI rejiggered the interface for chat GPT, not that long ago, they had many, many, many concerns and complaints. From people who said, you’re making it too impersonal, and I have a deep personal relationship with the persona that I have co created with you in the chat GPT interface. So I think, you know, I think I’m going to end up with the same normative view that I had, but I think I’m going to have to learn to express it and understand it in a very much richer way than I thought I would.

 

Will Bachman  15:22

Now I’ve been curious as I’ve been reading the intros to many of your books in the first few chapters, about how you think about what books to write. And I’m just I’ll read some of these titles, right? So most recent to be a Jew today, a new guide to God Israel and the Jewish people. And then you have the broken constitution, Lincoln, slavery and the refounding of America, the three lives of Jane Madison, genius, partisan president. That one, I’m actually going to buy that book. That one is, I’m happy to send you a copy. Will, all right, scorpions, the battles and triumphs of FDRs, great Supreme Court justices, the Arab winter. So we have some around the Arab Arab winter, a tragedy you have divided by God America’s church. Straight problem that rise and fall of the Islamic State, what we owe Iraq, and also constitutional law. That one, I probably will not be getting your constitutional law textbook.

 

Noah Feldman  16:16

I would recommend against it. If you’re taking a con law course or teaching a common law course. I urge you to buy it. But otherwise, definitely give it the myths. It’s 2000 pages long.

 

Will Bachman  16:23

Yeah, I’m not gonna get that one. But tell me, you know, I don’t understand the objective function of a professor at Harvard Law School like normally, I would have thought, oh, professors, they pretty much their professional objective is publishing papers and so forth. And you have some books, and some of them are, you know, I can see how they’re related to your back, you know, you, I guess you teach religion to some degree, like law and also, but, but, I mean, you’re writing the biographies of, you know, Founding Fathers and link, it’s time. That’s a pretty wide range for a scholar to be covering so well.

 

Noah Feldman  17:03

It is, it isn’t, it isn’t. So you’re right that I’ve written about a lot of different periods of time. My organizing theme for most of my work, not 100% of it, but most of it, has been constitutions. And there are two big buckets. One bucket is about constitutionalism in the Middle East, and that goes all the way back to early Islamic constitutional thought, which I’ve written about, and I’ve tried to follow that through line all the way to contemporary controversies and conflicts over constitutionalism, like in Iraq and in Tunisia. So that’s sort of one bucket of books. And in fact, I think of that as that there’s, there’s kind of a series of books there. There are four of them. They’re broadly speaking on Islam, constitutionalism and democracy. So that’s one bucket, then another bucket. Are books about the history of the US Constitution, and I’m trying to write a full history of the ideas of the US Constitution, told through the stories of the people who shaped and made the Constitution. And the reason I want to do it that way is that I love the history of constitutional ideas, but I don’t think that a book that just follows an idea is usually that gripping for a reader who’s not a specialist, but everybody likes books that have a narrative through line and so telling stories of people, to me, is a much more exciting way to do it. I also think that constitutional ideas are not just abstractions. They’re ideas about how we govern ourselves. They’re thought of by people. They’re developed by people, they’re argued about by people. So why not bring the people back in? This is how I think of it, as a kind of aspect of humanistic study. And so all the books that I’ve written about the Constitution fit in one way or another into this bigger arc or narrative. And I haven’t written them in order, but if you take them in chronological order, the Madison book takes us from before there was a constitution up through the end of Madison’s presidency. So it gets us through 1816, then my book about Lincoln and the Constitution picked up with Lincoln’s birth, so just a few years after that, and then followed Lincoln in his crucial interventions in the Constitution, since obviously he had to govern at a time when the Constitution was broken, and then he broke it more himself, and that gets you through the Civil War into the Reconstruction amendments. Then there’s a gap a book that I still owe to myself, which is going to be a book about really the 1870s say 1876 which was a big moment for the Constitution, when the North gave up its promise of reconstruction and essentially allowed segregation and the suppression of black voters to kick in up until the 1920s so I owe a book to myself on that, and that’s coming one of these days. And then I picked up again in the 19 early 1920s with a book about FDR is great Supreme Court justices. That’s Felix Frankfurter and Hugo black and Robert Jackson and. And William O Douglas, and it’s a kind of group biography that follows them from their alliance as close FDR supporters onto the Supreme Court, where they become bitter enemies, and along the way, they develop four competing schools of constitutional interpretation, which are still our four leading schools of constitutional thought. So that book runs like roughly 1920 to 1960 and I’m probably going to stop there. There are other people who have written books about the Supreme Court in the era of the Warren Court and the Burger Court, and I think those are still a little recent for me to write a book about them. But you never know. You know. Maybe in 20 years, I’ll think those things are starting to look like ancient history, and I’ll come back and come back and write about them. Write about them that

 

Will Bachman  20:44

talk to me about your work in Iraq and what you learned about the nitty gritty the process of creating the Constitution or or anything that you learned through that, through that period.

 

Noah Feldman  20:59

Boy, I learned, I learned so many different things. The first sort of fascinating thing about it for me was that although I was a civilian DoD employee, you know, I was deeply embedded with US military who were on the ground in Iraq, and although I knew people like like you or like our mutual friend, my college roommate, Parker Waller, who were ROTC folks and had gone off and served, and I’d heard a lot from people about what that had been like. This was my first time having a direct, personal, you know, experience of really being in a militarily dominated environment.

 

Will Bachman  21:34

Paint us a visual picture of what was your day to day, physical.

 

Noah Feldman  21:38

Yeah. So when I got to Iraq, it was still April of 2003 so Saddam statue had come down just a week or so, or 10 days before, and I and a group of civilians arrived, and we were, you know, We flew through Kuwait and transferred to military planes to take us into Baghdad and flew evasive flight patterns and used evasive techniques, even though nobody was shooting by then, because there was always a worry that someone might be shooting. And I learned that if I took enough Dramamine, it turns out, I could put myself to sleep in almost any degree of flight pattern and turbulence, which is a useful skill to know, especially if you’re only going to be a passenger. We landed in Baghdad, and they put us in busses and took us to the Republican Palace, the heart of what would later come to be called the Green Zone. And the Republican palace had really, literally just been evacuated by Saddam and his supporters. And I mean it was to say it was a mess is a great understatement. There were many buildings that had been hit in our shock and awe campaign. I and about 100 other people were housed together in the former kitchen of the Republican Palace on cots. We kind of rigged up our own mosquito netting to try to protect us, because it was 100 and already, 105 110 degrees in April, and by the time it got to June and July, it got to be more like 125 degrees, and there was no air conditioning. Needless to say, the plumbing stopped working within a week or so because it was just being overused. There were too many people. Too many people there, and that was what it felt like. And then we had laptop computers that would very quickly overheat. And eventually they brought in one mainframe computer that would overheat so much that they set up a huge air conditioning unit in the middle of Republican palace, and they just pointed it at the computer stack. There was like three or four big air conditioning units pointing at a computer stack. And that was how the, what was originally called the Office of reconstruction and humanitarian assistance was supposed to administer Iraq. So it was jerry rigged. It was make it up as you go along. There was no real space for anything to be secure. So nothing could be made into a confidential document, effectively, because there was no space that technically would legally satisfy, as you know, a sufficient constraint. I mean, there was one locked up room where the agency people went. But other than that little room, everything else that was created had to be created as a as a unclassified document, and the disorder inside the building really was matched by the disorder outside the building, because the Iraqis expected that the United States, having conquered their country with amazing ease, would give orders and establish a functioning occupation administration. And it turned out that although we had conquered their country with 80 or 90,000 troops, we had no intention of administering their country, which would have required, say, conservatively, half a million troops. And you know, this is a this was a historical anomaly based on the fact that there had been this famous debate. Poirier between Donald Rumsfeld and Colin Powell about whether to invade in the first place. And Powell had said, Well, you know, Powell Doctrine, you have to have enormous number of troops. And he hoped that therefore we wouldn’t invade. And Rumsfeld wanted to prove that special operations was the way of the future and that we could knock out a government with just a small number of troops. And of course, he was right. And the part that Powell was right about was that you could win. Powell was wrong that you couldn’t win a war, but he was right that you couldn’t win a peace. And so we were in this extremely difficult situation where ordinary people on the streets would stop me and ask me, you know, in Arabic, where’s the where’s the running water? You know, what are the schools opening? You know, who’s in charge here? I remember that vividly, and I was like, Ambassador Bremer is in charge. They said, well, who’s that? I said, Well, he’s the President’s emissary, you know? And they were like, Well, whoever he is, he’s going to get a hold of things, because things are not going well. And so gradually, we managed to communicate collectively to the Iraqis that we there was no one in charge, and once people, and this is my punchline on this, once people realize that there’s no one in charge, they have no choice but to take steps to protect themselves and their families. And in the absence of military institutions, that meant people look to their clans and their families, and they began to create militias. And so although we didn’t intentionally create those militias, we allowed a vacuum to emerge. And in the context of that vacuum, the militias, it turns out, were inevitable, and this was very visible on the ground. And so every day, I would write a memo up the chain of command, you know, to whom it may concern. I mean, I would address it to specific people, telling them everything we were doing wrong. And this was not politically correct. This was not what I was supposed to be doing. But I wasn’t trying to be politically correct, because I was a lifelong Democrat who still am, who had, you know, litigated for Al Gore in the Bush v Gore campaign, and it ended up in this extremely Republican environment by a quirk of the fact that I spoke Arabic, worked on constitutions, and no one else really wanted to go and be constitutional advisor. And I was hired by someone, a guy called Ryan Henry, who was Deputy Under Secretary of Defense, who was a real professional professional. And when I told him, when he hired me, that I had the wrong politics, he scolded me, and he said, Son, this is a non political appointment in the Department of Defense. We don’t care what your politics are. It doesn’t matter at all. And that was, I think he was being a little bit well, he was not naive in any way, shape or form. I was naive, but I realized very quickly that it was actually an extremely political environment. And so that was actually great from my perspective, because I knew I wasn’t going to go back and work in the White House. That was not an option, and it was not something I would have wanted to do. So instead, I just tried to be a straight shooter.

 

Will Bachman  27:47

And what did it what did the process of creating a constitution Iraq teach you about what it might have been like creating the US Constitution? Was there lessons about that you realized kind of going through it yourself, or helping people go through it say, oh, it actually feels different when you’re doing it live, than what I had imagined reading in the papers.

 

Noah Feldman  28:12

Absolutely, 100% the biggest lesson was, you know, we like to use the phrase law and order, but that phrase is in reverse order. It’s order and law, unless there is order on the ground in place, unless there’s someone capable of ensuring that people follow the basic rules of the road. It is extremely difficult, not to say impossible, to create a functioning legal or constitutional system. And in fact, if you look around the world, there really almost no instances where a successful constitutional order was built in the midst of a civil war or substantial civil disorder. First you have to assert actual de facto control on the ground and make sure that people feel safe and that their property is protected and that their persons are protected and that their families are protected, and then you can get them to engage in productive negotiations about how they want to govern themselves. And we tried to do it backwards. You know, we somehow thought that we could lead the Iraqis into a constitutional process while there was simultaneously what was effectively a civil war emerging. And that didn’t work well, and it has never worked well anywhere. And I think part of the reason that we, the Americans collectively, made this mistake was that we have this kind of idea in the back of our minds that in the aftermath of the American Revolution, you know, each of the states functioned, and then the states got together and created the Articles of Confederation, and then after the war, they put together the Constitution. And we think of this as a process that somehow was inevitable. I think we’re in the grips a little bit of the, what you might call the Lockean myth, you know, the John Locke idea, that government is by the consent of the governed, and people come out of the state of nature, and they realize that it’s rational to have. Government, and they make a deal about how to do that, but that’s not how it actually ever works in the real world. And Locke never said it was, you know, for Locke, that’s a that’s a thought experiment about what would mean a just emergence of government. In fact, what you need to have is something a little more like what the philosopher Hobbs imagined, namely, a single power that scares people enough to respect the rule of law, and then you can begin to develop some plausible system of governance. And I think that’s the single most important lesson for constitutional design. I didn’t understand it going in. I learned it along the way, and now it seems to me like the most obvious thing in the world, but it definitely didn’t feel that way

 

Will Bachman  30:40

at the time. Yeah, so you’re saying it’s a little chicken and an egg. You can’t just have complete chaos and create a constitution. You have to have some sort of police force maintaining order, some kind of existing government maintaining order, to create the conditions where people can meet debate these things,

 

Noah Feldman  30:59

exactly, and that we actually were lucky in the case of the early days of the United States, that basically the governments that had functioned under colonial rule involved legislatures. And so after July 4, 1776 the people who were locally in charge were mostly, not exclusively, but mostly the same people, or the same kinds of people, who had been in charge on July 3 of 1776 and the courts were operating, and it was before modern police forces, but the justices of the peace were many of them were the same people. And you know, the British colonial structure in the United States had not been one of a big military occupation. In fact, it was anomalous where there were British troops, like in Boston, and that was one of the sources of the revolution. People were upset by the presence of the troops because they were unusual. And so yeah, that’s the takeaway. You need somebody to be in charge and running the show. And then when people feel roughly safe, they will be happy to talk about how to govern themselves.

 

Will Bachman  32:01

What about Tunisia? What did you learn from that experience?

 

Noah Feldman  32:05

That was a really different experience, because here the Tunisians had themselves made a largely peaceful revolution. Certainly, the people who rose up against the government don’t seem to have killed almost anybody. The government killed some number of people, but only a few before the before the President, who was really a dictator called Ben Ali, fled the country. And so then, in the aftermath of him fleeing, there was not widespread rioting. Most of the governmental apparatus remained largely in place, and there were eventually elections for a constituent assembly, and that Constituent Assembly was supposed to have the job of writing the Constitution, but it was also supposed to govern in the meantime. And so the Tunisians worked out this really quirky solution and actually worked fairly well, which is that the same group of people were both a constituent assembly with the job of writing the Constitution, and they were also the functional legislature at the same time. So on certain days of the week they would meet as the constituent assembly, and on other days of the week they would meet as the government and different people developed kind of different kinds of substantive expertise. Their constitutional process took a long time, and they were constantly under pressure to make it go faster. And I was really proud of them for insisting that there was no need to rush, that they needed a certain amount of basic stability to produce a constitution. And the big shock here was that in the initial elections that they held, the Islamist political party actually won, not quite a majority, but a plurality of the votes. And that freaked out secular Tunisians. And a lot of Tunisians are, you know, would consider themselves Muslim and would go to the mosque occasionally, but they otherwise are living their lives in an extremely secular way. And a lot of those folks were freaked out by the success of the Islamist political party, and so they were predicting this won’t work. The Islamist won’t want democracy. It’ll be one man, one vote, one time. And none of that happened, which was incredibly gratifying to me, because at that point in my career, I’d been in academia about a decade, and I had really, my whole brand, really was the argument that Islamic democracy was a real possibility. And I developed close ties with people in other countries who were advocating for Islam and democracy. And so I had a natural constituency in Tunisia, and it was the people who were actually the most religious, the most religious Muslims, who were actually trying to create a democracy. And they did it. You know, they cooperated and collaborated with secularists and produced a constitution that did give some very mild role to Islam at the level of symbolism, but was basically a pluralist democratic constitution. And they ran for office. Subsequently, they won some they lost. Some they left office when they were defeated, they came back to office when they won, they behaved as excellent participants in the democratic system, and that was a vindication of their worldview. And since I, myself, have been arguing that their worldview deserved a shot, I was very pleased to see that that was that was happening. As it turned out, they were not the ones who broke the democracy. It was secularists who ended up breaking the democracy. In fact, it was a constitutional law professor who ran for the presidency, got elected, and then exploited a kind of hole in the constitutional order to seize greater power. And that makes me sad as a constitutional law professor, and it also makes me sad because I was a participant in designing the constitution. So I’ll tell you what the flaw was, just because it’s interesting to talk about failures. So there was a it was very important to the Tunisians to make sure that if a President tried to seize power, he would be checked. And they put into their constitution, and I was, you know, among the people who advocated for this, a very good check that had two components. It had a legislative component and it had a judicial component. The legislative component was that if the president declared a state of emergency, the legislature had the right to meet and to vote that the state of emergency needed to be lifted. That was the first check. The second check was what happens if the president blocks the legislature for meeting? And the answer was that then the Constitutional Court would be able to weigh in and determine if there really was an emergency. And if there is an emergency, then they would allow the delay for one cycle, but only one cycle. And if there was no emergency, they would tell the president, you got to let the legislature meet. So we thought that was a really good two step design. Here is the problem. The Constitution created the Constitutional Court, but when the government came into being, the President and the legislature were not able to agree on who would the members of the Constitutional Court be and so even though the Constitution created a Constitutional Court, they never filled it with any people. So it’s imagine that the US Constitution was there in Article Three said there’ll be a Supreme Court. But then George Washington just never appointed anybody, and the legislature never made him appoint anybody. So it’s just an empty shell. So that’s what they had. And so the constitutional law professor who became president noticed this, and so he declared a state of emergency when there wasn’t really an emergency. And then he purported to tell the parliament they couldn’t meet. And so the natural next step was it was supposed to go to the Constitutional Court, but there was no constitutional court. So he said, since there’s no constitutional court, I’ll make the decision. And he got away with it, which is, you know, a sign that even the best written constitution on on its own is not enough to make a constitutional system function.

 

Will Bachman  37:50

Those experiences, plus, I don’t know any other recent history. Do those suggest to you, or have you taught you anything about the importance of just norms and conventions, and perhaps constitutional guarantees that we always sort of assumed were maybe sufficient. We’re relying more on norms and conventions, and

 

Noah Feldman  38:16

then, then maybe we expected, yeah, I mean, you stated that super well and probably coming as you do from consulting you are. You knew this long before the lawyers did how when any institution operates, and it’s probably not just institutions, it’s also probably like families, friendships. You know, marriages, the way you do things is more important by far than the written rules about how you’re supposed to do them, and also the way you do things is usually not that close to the way they’re written down in the rules. You know, if you said like, you know, just imagine you’re showing up for your kids Little League game, and you had to look at the rules, you wouldn’t be able to organize a little league game just from their written rules. You need to know who does what, who goes, where, who stands, how. The practical accumulated knowledge, which you could call norms. It certainly involves customs too. Is like 95% of the show. And that’s true, I think, of almost everything in life. It turns out to be true of almost everything in life. And it turns out, weirdly, it’s also true of written constitutions. It’s also true of legal systems. Just because the rules are written down. That’s not enough to get you to actually the way things really function. And so if someone wants to break the system, the first move is to say, Well, I’m doing this. And everyone says, Well, you can’t do that because it doesn’t follow the norms and it’s not the custom. And then they say, Well, so what I can do this. I claim it’s consistent with the rules. Go ahead and challenge me. And so I know this is not a political podcast, but you know, some listeners will be aware that we live in the United States in the year 2025 and that Donald Trump is president for the second time, and that the breaking of norms and rules, which he began already in his first term. Question has continued very much in the second term, and really, I would say it’s substantially been enhanced. And, you know, I didn’t mention this, but this was an experience I had in the first Bush, sorry, the first Trump presidency. When Trump was first impeached on charges of corruption, I was called by the house, House of Representatives, by the House Judiciary Committee, to be the first witness on the first day of the impeachment proceedings to explain what are high crimes and misdemeanors under the Constitution and why Trump’s conduct at the time, which, as you’ll recall, although it seems almost quaint in historical comparison, was getting on the phone with Vladimir Zelensky, and at least according to one interpretation, asking him to investigate Joe Biden and Hunter Biden in exchange for arms sales, was a deviation from the norms of our constitutional order that the framers would have considered to be a high crime or misdemeanor. And so right there, I was trying to rule if I a general norm, because the framers did not make a long list of what they considered to be high crimes and misdemeanors. They didn’t even add the word corruption there. They just assumed that everyone would know what that meant, and to a great extent, it was dependent upon their values and their sense of customs. And indeed, impeachment was a custom that went all the way back to to England and had been practiced since the fourth or 13th century. And there were practices and customs and norms that they just assumed people would know. And so, you know, in the end, the house impeached, and the Senate refused to convict, saying there’s nothing wrong with this. And once the Senate had the view that there was nothing wrong with it, the norms fundamentally were changed. You know, that’s just one instance of many, many instances that show that, just as you’re saying, Well, the way that things are done and and the values that people ascribe to that is just it’s wildly more significant than the written rules.

 

Will Bachman  42:07

So I alluded when we first opened up to there was a style section article about you in the New York Times. I wanted to just kind of give space. We’ve talked a lot about your professional life, if you’d like to sketch out for us what? What’s going on with Noah Feldman outside

 

Noah Feldman  42:23

of work? Sure. My one tiny, tiny correction is that that article in the Style section, which featured my wife, now, wife, Julie Allison and me, people said to me, Oh, look, Noah, you made it into the Style section. I explained No. Julia made into the Style section, as she has many times before. And I was just along for the ride. I’m the straight man in the in the in the joke, you know. So I just this past summer, married my girlfriend, Julia Allison, who is a bohemian, an extraordinary person. She was back in the early aughts, one of the one of the first people to do the job that today we call being an influencer. And by the early 2010 she had figured out that that was not the way she wanted to spend the rest of her life, and she had walked away from it. But by but along the way, she kind of shaped and created a lot of the practices and norms that we have, for better or worse, and she then started to make a living as a advisor, effectively, as a consultant on narrative strategy for people who want to get their stories out there in a world where social media and legacy media both matter. She recently also just went back to the Kennedy school and got a master’s there, and is now a fellow at the Kennedy School and doing doing really amazing things. So that’s that’s been great for me to be 55 and full of optimism and vim and vigor for the future is, is very, very exciting. And to get married at 55 is, is also pretty funny, because at that age, in some certain complicated kind of way, you could be both the groom and also, from an economic point of view, the father of the bride. And so that’s a that’s a slightly complicated situation to be in, because you don’t want to say no to to say no to any expense, but you also have to pay for all of the expenses. So I’m thrilled and very, very happy. I have two kids, a son, Jamin, who is a sophomore at Harvard College, and then Mina, who is a freshman at Yale College, and they seem to be burgeoning, and they want nothing to do with academia in any way, shape or form. They’re both very oriented towards the arts. Jamin towards film, and he spent a lot of time at the Lampoon where he’s an active lip board member. And Mina in theater, which is great, because Yale is the, you know, the kind of epicenter of college theater in the country. Their mom, my first wife, Jeannie Suk. Now, Jeannie Suk Gerson is also a professor at Harvard Law School. And luckily, we have a we have a block apart from each other. We get along great, which is very fortunate, since we’re also colleagues. So that. Makes it that makes it a good thing. And her husband, Jake Gerson, is also a professor at Harvard Law School, and we also get along great. So in that regard, we’re all a very modern, modern or maybe post modern, Post Modern Family.

 

Will Bachman  45:14

Tell us about any courses or professors or activities that you were involved in at Harvard that continue to resonate with you.

 

Noah Feldman  45:23

Oh, man, it’s almost easier for me to list the things that that I don’t resonate with. I mean, almost not a day passes. And I think, you know, this is partly because I’m in academia, but almost not a day passes when I don’t think about the incredible teachers that we had really just giants and the amazing stuff that I learned for them. So I’ll give you a few, a few examples. I was really lucky enough to be a mentee of Robert Nozick, who I took, I think, three or four different classes that that he taught or CO taught, and in thinking about this book I’m working on now, I went back to his anchor state and utopia. And he has a famous thought experiment called the Experience Machine, in which you can attach yourself up to some electrodes and you think you’re having all kinds of experiences that you’re not literally happening having, and they’re not really happening to you. And he asked the question of, would you would you want to do that even if you knew you’d have an amazing set of experiences? And his view is no. And I think he’s right about that. So I’m engaged with that right now. And Bob, unfortunately, tragically, died much, much too young. But I think of him and commune with Him, if you will, all the time. I also run a program at the law school called the program on Jewish and Israeli law, and in that context, I get to do a lot of medieval Jewish Studies. And since I did my doctorate in medieval Islamic and Jewish Studies, that’s great, and that connects me to my teachers, Isador torski and Bernard Septimus and Mohsen Madi, who were amazing professors of medieval Jewish and Islamic Studies, who taught me an enormous amount. And I use the stuff that they taught me every single day. I took con law with a professor who now teaches at Texas called the HW Perry. That was an amazing class. Richard Primus, from our class, was also in that class. A bunch of other great people were in that class too. Our classmate, ketanji Brown Jackson, took the class not that year, but the year afterwards. So greatness was not, perhaps, immediately in my group, but in the year that followed. I don’t know if you’ve interviewed her yet, but you obviously should. And I guess the other thing I would just mention is there the thing in college that I hated the most academically was response papers. I hated to write response papers. I think I was like, first of all, I just, I was insulted. I was like, you’re asking us if we’ve done the reading. Of course, I’ve done the reading. And I also felt that, what could I say of any value, you know, responding to some great work of literature or philosophy or what have you in, you know, like a page and a half. And I really, I mean to say I hate it as an understatement. I detested it, and then I became a journalist, and specifically I became a journalist who writes What are effectively op ed columns. And I write a lot of them, you know? I mean, right now I write one a week, and at various times in my career, I was even writing two and sometimes even three a week. And it turns out that the skill in college that most prepares you to evaluate some late breaking event against the backdrop of everything that you know, and to offer some opinion about it is the response paper. So it turns out that the thing I hated the most in college is actually one of the most useful skills that I ever developed in life. And so that’s, you know? That’s a reminder to me that what you think you like is not necessarily, you know what’s, what’s absolutely best, best for you.

 

Will Bachman  48:56

Noah, for listeners who want to keep track of what you’re doing, follow up. Where do you point them online? What’s the central

 

Noah Feldman  49:03

Oh, thank you. Well, I’m actually, it’s funny, I’m very close to launching a Substack, and so I will send, I will send that to you, will so you can put that out to members of the class if you want. We can maybe put it up in the notes for the for this episode. If you go to bloomberg.com and you go to the opinion section, you’ll see my byline there, and I publish at least once a week there. And some of that stuff is paywalled, but they give you a few free articles so you can you can get around the pay offer for those purposes. You can also just email me, noah_feldman@harvard.edu and I will put you right away on my mailing list to get anything that I write or do. And I’m always thrilled to hear from people in the class or just anyone who happens to be listening. It’s always fun to get my ideas out there and to get people to to respond, to respond to them, or to tell me why I’m wrong in many, many different ways. And. Um, and last but not least, I’m also soon going to launch some online content, because I think we’re in an interesting moment where talking is as good a way to reach people as writing. And so my handle across all the platforms is at Professor Noah Feldman. And so if you just remember my name and at tack on professor at the front, you’ll be exposed to whatever content I put out there, and there will be some amount of it in the relatively near future,

 

Will Bachman  50:30

looking forward to that. Noah, thank you so much for joining today.

 

Noah Feldman  50:33

Will thank you so much for having me. This is really fun, and again, it’s amazing that you’re doing this. You’re creating an amazing cross section of our lives. So thank you. You.