Please enjoy this transcript of my interview with Noah Feldman (@NoahRFeldman), a Harvard professor, ethical philosopher and advisor, public intellectual, religious scholar and historian, and author of 10 books, including his latest, The Broken Constitution: Lincoln, Slavery, and the Refounding of America.
Noah is the founder of Ethical Compass, which helps clients like Facebook and eBay improve ethical decision-making by creating and implementing new governance solutions. Noah conceived and designed the Facebook Oversight Board and continues to advise Facebook on ethics and governance issues.
Feldman is host of the Deep Background podcast, a policy and public affairs columnist for Bloomberg Opinion, and a former contributing writer for The New York Times. He served as senior constitutional advisor to the Coalition Provisional Authority in Iraq and subsequently advised members of the Iraqi Governing Council on the drafting of Iraq’s interim constitution.
He earned his A.B. summa cum laude from Harvard, finishing first in his class. Selected as a Rhodes Scholar, he earned a DPhil from Oxford University, writing his dissertation on Aristotle’s Ethics. He received his JD from Yale Law School and clerked for Justice David Souter of the US Supreme Court.
He is the author of 10 books, including Divided by God: America’s Church-State Problem — and What We Should Do About It; What We Owe Iraq: War and the Ethics of Nation Building; Cool War: The United States, China, and the Future of Global Competition; Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices; and The Three Lives of James Madison: Genius, Partisan, President.
Transcripts may contain a few typos. With many episodes lasting 2+ hours, it can be difficult to catch minor errors. Enjoy!
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Tim Ferriss: Hello, boys and girls, ladies and germs. This is Tim Ferriss, and welcome to another episode of The Tim Ferriss Show. I am so excited for this episode and I am also intimidated. I have a mess of notes in front of me, which we will discuss.
My guest is Noah Feldman. You can find him on Twitter at Noah R. Feldman, F E L D M A N. Noah is a Harvard professor, ethical philosopher and advisor, public intellectual, religious scholar, and historian and author of 10 books, including his latest, The Broken Constitution, subtitle Lincoln, Slavery, and the Refounding of America.
He’s also a hyper polyglot. And we’re going to probably talk about that right at the beginning. It tells you something when that can be omitted in the bio.
Moving on. Feldman is host of the Deep Background podcast, a policy and public affairs columnist for Bloomberg Opinion, and a former contributing writer for The New York Times. He served as senior constitutional advisor to the Coalition Provisional Authority in Iraq and subsequently advised members of the Iraqi governing council on the drafting of Iraq’s interim constitution. Let me try that again. And subsequently advised members of the Iraqi governing council on the drafting of Iraq’s interim constitution.
He earned his AB summa cum laude from Harvard, finishing first in his class. Selected as a Rhodes Scholar, he earned a DPhil, which I just learned how to pronounce properly, from Oxford University, writing his dissertation on Aristotle’s Ethics. He received his JD from Yale Law School and clerked for Justice David Souter of the US Supreme Court.
Noah’s 10 books also include Divided by God: America’s Church-State Problem — and What We Should Do about It; What We Owe Iraq: War and the Ethics of Nation Building; Cool War, subtitled, The United States, China, and the Future of Global Competition; Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices; and The Three Lives of James Madison: Genius, Partisan, President. You can find him on Twitter, as mentioned, @noahrfeldman. Instagram at NoahRFeldman. And all things Noah can be found at noah-feldman.com.
Noah, Welcome to the show. It’s so nice to see you.
Noah Feldman: It’s great to see you too, Tim. Thank you so much for having me.
Tim Ferriss: And I will begin with the language piece. I’m going to segue there by stating up front for people who don’t know that we have a shared deep interest in languages, although you put me to shame. And what I was thinking, as I looked at probably 12 sheets of paper in front of me before we got started, I thought to myself, “¡Qué quilombo!” And quilombo, I wanted to look it up because I was going to say this on the show. And I was like, you know what? I should really check to see what that means. It’s used in Argentina to mean what a mess, what a mess. And so I looked it up and it actually comes from what is called Lunfardo, which is this sort of an Italian adopted street slang used initially by kind of lower classes and criminals and quilombo means a mess, scandal, uproar, disorder, or conflict. In the past, quilombo strictly referred to brothels or so-called houses of ill repute.
Noah Feldman: I’m honored.
Tim Ferriss: However, as the term evolved, it began to be applied to disorganized or messy conditions, or situations of conflict. Now I’m just using it to refer to my notes, and where to begin. And I highlighted one thing, and that is related to your languages. You are fluent in English, Hebrew, Arabic, French. You can speak and read conversational Korean, read Aramaic, Latin, some Greek, Spanish, Italian, and German. How does this happen? Where did this start?
Noah Feldman: I think it started basically in a quilombo — thanks for teaching me that new word — of a childhood where my parents definitely thought that we should live in a bunch of different worlds. They, before I was born, had spent time in Afghanistan and had Afghan friends that I knew when I was growing up, and actually had two Afghan teenagers living with us when I was a little kid. And then we went and spent a year in Israel and I don’t remember this because I was too little, but I have the pictures of myself on a backpack on my dad’s back in front of the Acropolis in Athens, and then in front of the Pyramids in Egypt, and on the Temple Mount in Jerusalem.
And so I think I was just being exposed to a million languages. Or maybe not a million, but a lot of languages when I was a really, really small kid. And my dad would always tell the story about being in Cairo. I was running around and I was, I think, like one and a half. And I called my dad Abba, which is Hebrew or actually it’s Aramaic for dad. And I was saying “Abba, Abba, Abba,” and my dad was freaking out because we’re like in the middle of Egypt and this kid is speaking Hebrew to his father. And you know, this is a time, literally between the 1967 and 1973 Wars where Israel and Egypt were like not only at war with each other, in the midst of like an actual shooting war over the Suez Canal, but like they were between two mega wars.
And people came up to him and were like, “So nice. Your son already speaks Arabic, and he’s only one-year-old. He’s saying ‘Abu, abu, abu, abu.'” So my dad was like, “Oh, thank goodness.” You know, like these languages are basically all the same. And I remember being told that story from an early, early age. And I think the takeaway, all of my dad’s stories had takeaways. And I think the takeaway was A, language matters. B, even people who are really, really mad at each other have a lot of overlap, including overlap of language. And I think that always stayed with me.
Tim Ferriss: We’re definitely going to go deeper on this, but I want to say also as just a backdrop that as I was doing research for this, and I always enjoy the sort of pretext of the interview to do all this Google slew thing, which would otherwise be really creepy. I just came to realize that perhaps I should think of you as someone who studies the code of human behavior, whether that takes the form of absorbed code, in a sense through, say, language, you assimilate at a super young age. Whether that is, say, a constitution or some type of sort of consciously constructed code of a sort. Blockchain might also be an example. And certainly languages is one arena in which you seem to have really cut your teeth. In the beginning, you absorb languages, but then you began to study languages. Why dedicate so much time and energy? And how did that happen?
Noah Feldman: Well, first of all, thank you for that way of putting it, which I love and it’s better than I could have put it myself. I think I was trying to decode the world around me. So my parents sent me to a Jewish school where they taught us Hebrew and they also took us to the Middle East when I was old enough to remember it. And I remember being a little kid in Israel and seeing street signs in Hebrew, Arabic, and English, and having really no idea at that age, that there was a very complicated, layered history of that with not a lot of getting along and a lot of fighting, but an aspiration via these different languages to try to get along. And I just thought, well, if there’s multiple languages, I’m supposed to know them because they were sending me to a school where they taught me this language and then there it was on a street sign.
So I thought, okay, I guess I’m supposed to figure these things out. And that actually led me to go and study Arabic in the kind of naive, childish, and in my defense, I was only 15 years old or 14 years old, aspiration to understand the world. And you know, maybe I could bring peace to the Middle East. You know, that didn’t work out so well. But you know, the idea was to decode these things that are otherwise unavailable. There’s actually nothing more frustrating in life than hearing someone speak a language that you don’t speak, because you know there’s a whole universe going on there. You can see the animation. You know there are emotions. You can recognize something and you don’t know what they’re saying. And so for me, the impulse to decode is to sort of get behind there and to know what’s going on underneath.
Tim Ferriss: So I just want to highlight 14, 15. Because there is this myth, I certainly think it’s a myth, that to learn a language, speak it fluently, we could debate what fluent means, but let’s just say conversationally at a reasonably high level, that you need to learn it when you are in the single digits. And that is patently false. Certainly has been my experience. I really started learning languages at 15 or 16. And you have a long list, but let’s start with Arabic.
So 14, 15, you set out to learn Arabic and there are many different flavors of Arabic. But once you were reasonably competent with Arabic, how did that change your universe?
Noah Feldman: It broke it. I mean, it changed my worldview radically and totally. And that’s because when you learn a language, it puts you in the thought world of the people who speak it, and you no longer are seeing them as an outsider, imagining what they might think when they speak to themselves. But you’re actually a participant. You may not be a member of the group, but you can participate because you can speak the language. And since I’d been raised in this milieu that was very Israel focused, very Jewish, there were all kinds of ideas about what Arabic speakers were like, what Arabic was like, what the world of the Arab people was.
And just to see that from the opposite perspective, it blew my mind at a very early age. And I think very few things have had as big an influence on me because I just realized that things just looked different from an alternative perspective. They weren’t necessarily better or worse. They were just really, really fundamentally distinct. And that made me realize that, to put it very bluntly, a lot of what I’d been taught, you could characterize as not having been true from someone else’s perspective.
It’s not that anybody was consciously lying to me. They were just giving me their perspective. And suddenly, I was hearing pretty much 180 degrees, the opposite perspective. And that is the most useful lesson you could possibly give a young teenager trying to make sense of the world. Someone always sees things the opposite way that you see them.
Tim Ferriss: Why did you end up in Egypt with potential, I imagine, conflict risk with your parents? Why were you there?
Noah Feldman: You know, I’ve talked to my parents a lot about why they liked to travel the way they did when we were little, and you know, they were in Israel for the year. My dad had an academic fellowship there. My mom was in graduate school, so she was working on her dissertation, however you do that when you’ve got one little kid and you’ve got another one on the way. She somehow managed to pull that off. And they were like, “We’re here. Egypt’s not that far away. Let’s go check out Egypt.”
And I mean, I guess it was close enough to the ’60s that there was still this idea that you just kind of threw your kid in the back of the car literally, and just went. You know, you couldn’t go directly from Israel to Egypt at the time. So that meant they had to go via, I think they went via Cyprus, probably by boat if I remember correctly. And they were just like, what the heck? There were no car seats in that world. Let’s just put it that way.
There were no car seats in that world. Let’s put it that way. So I think they just wanted to see what it was like. And then once they were there, you know, they were also an important element. They were Americans and Americans could go anywhere. We’ve been incredibly privileged through our lives, and also our parents’ lives that that passport, that blue passport mostly lets you in almost wherever you want to go. People might not like us very much, but they pretty much always let us in. And then if they don’t, we invade them. So that’s probably not such a good thing, but that is a habit that we have.
Tim Ferriss: For people listening, I want you to know we’re not going to focus on languages for an hour or anything like that. I do want to spend a little more time on it, and I want you to stress test, feel free to stress test, anything I say that sounds like BS. But we begin to function, it seems, as adults and interact as a society, using words that reflect concepts. And those words and concepts form narratives that drive our lives, right? These are invisible scripts in a way. And I think that’s going to tie into a lot of what we end up discussing. So I want to spend a little bit more time on language. And the way I want to do that first is by asking you about, and you can correct my pronunciation here, but in English, Dr. Bishai.
Noah Feldman: Yes. Dr. Wilson Bishai. Yeah.
Tim Ferriss: Okay. Bishai. So I want to read something from WordsmithsBlog.com and I believe these are your words. “At Harvard I studied biblical Hebrew and a great deal of medieval philosophical Hebrew. I also studied Arabic, primarily medieval philosophical Arabic, but I did take a course on modern colloquial Arabic given by Dr. Bishai.” How did he end up teaching you colloquial Arabic?
Noah Feldman: So Dr. Bishai, Wilson Bishai, who’s kind of a hero of mine, was a major important person in my life, even before I took that class, because he was the one who, when I showed up and wanted to enroll at the Harvard summer school as a young teen, I had just finished ninth grade and I wanted to take Arabic, let me take his class. And I had the following experience.
I went into his office to discuss this with him. And he was a very formal guy. So it was like the summer. And he was wearing a full suit. In my memory he even had a vest on, although I might be imagining the vest, and like a big tie. And he was very formal. He spoke in this very mellifluous deep bass kind of voice. And he said to me, “You wish to study the Arabic language?”
And I said, “Yes, Dr. Bishai, I do.” He said, “You may study the Arabic language.” And then I said, “But I have a problem, which is that you can’t sign up for the summer school unless you’re 16 and I’m not 16.” And he said, “Hold on a moment.” And he picked up the phone and he called the registrar of the summer school, and they had a conversation, and I didn’t think it was going very well from what I could hear on one end of it, he hung up and he said, “I have good news. You will study Arabic.” I was like, “Great.” He said, “There was only one condition. You may not pay tuition and you may not take the final examination.”
So basically he had gotten on the phone. He had called the registrar, the registrar and said, “No, I’m not going to let you register some little kid for your class.” And he had said, “Okay, no problem.” And then he hung up the phone and just said, “Okay, you can come to my class. It’s my class. You come to my class. You’re just not going to pay. And you’re not going to show up the day of the final exam.”
He opened up the world of the Arabic language to me, and he was a very distinctive guy. He had his own book that he used to teach that he had invented. He had his own tapes that we listened to in the old fashioned language lab where we’d go and listen to them on tape decks.
Tim Ferriss: I remember that. I did that too.
Noah Feldman: And it worked and I loved it. And I worked my tail off. And unlike, I guess, all the other people in Harvard summer school who were old enough to go out and party, I wasn’t. So I was home doing my homework every night. And later when I went to college, I took this class that you’re referring to there, which was a kind of amazing class. He was Egyptian and he introduced us to modern standard Arabic, which is what the newscasters speak. But he also had these linguistic tricks. They were literally like a code that he had worked out. And he taught us these tricks in the course so you could translate in real time, almost like an algorithm, your formal, modern standard Arabic into Egyptian colloquial Arabic. And it was kind of like a bizarre and fascinating thing that it worked so well, but it did. It worked like a charm.
And he loved all of the students. Most of us had studied Arabic with him before. And just a final story about this. He kept on referring to the exam as the banquet. He would say, “You have eaten the meals and now you must attend the banquet.” And then when the semester came to an end, he literally did not give us a final exam. He was like, “You all have learned very well.” And he actually took us out to dinner instead of a final exam. I mean, I was just like, that is what a good teacher is. He knew what each of us knew. It was good enough for him. Boom, we’re done here.
Tim Ferriss: That is such an incredible story. What a character, what a personality.
Noah Feldman: He really was. And he taught a whole generation of Harvard students to speak Arabic.
Tim Ferriss: And on the Egyptian Arabic side, for those who don’t know, could you just give people an idea of the spectrum of Arabic, right? Because this applies to so many languages and it applies to so many things, just like Spanish in Argentina, actually, Spanish in the provinces of Argentina is not the same as Spanish in Capital Federal In Buenos Aires, it’s not the same. It is not the same Spanish spoken in Spain, et cetera, even though they all fall under this umbrella term of Spanish. What does the spectrum of Arabic look like?
Noah Feldman: I think the spectrum of Arabic is maybe the biggest of almost any language that you can still call the same language. And part of the reason for that is when the original Arabs following the Prophet Hammad came out of Arabia in the seventh and eighth centuries, they conquered a large part of the known world. And only a small number of them went out there and they brought their Arabic, which was the Arabic of Arabia, which is why it was called Arabic. But then they assimilated into all of the local cultures, ranging all the way from the Iraq/Iran border in the east, all the way to Morocco in the west, and then up all the way into Spain.
So that’s an enormous geographical span and they were encountering different languages wherever they went. And the local languages basically merged to some degree with the formal Arabic that had come along. And so the result is that over the next, roughly 1,300 years, the daily spoken languages diverged, even as the written language remained pretty standard everywhere as the language, let’s say, of the Koran, and then later the language of newspapers and newscasters remained pretty stable.
So the result is that if you were listening to an Iraqi speaking colloquial everyday Iraqi Arabic, and an Egyptian and a Tunisian, and a Moroccan, they are so different that as you get further and further apart, they literally would not be able to understand each other. So it’s literally the case that someone who only speaks Iraqi dialect would not be able to understand very well someone who only spoke Moroccan or Tunisian dialogue. They are almost different languages. And what people do understand comes mostly from watching TV shows that are broadcast all over the region.
So for example, in the ’50s and ’60s, the Egyptian TV stations were the dominant ones. And so actually people all over the Arab world can still often understand Egyptian Arabic because they just watched it on TV and over time they picked it up. So it’s like a fascinating aspect of Arabic. And it’s also really frustrating because when you land in a country where you don’t speak the dialect, and I had this experience in Tunisia right after the Arab Spring, when I spent a lot of time there.
You know, you get off the plane, you’re talking to people and everyone can understand modern standard Arabic. So you can make yourself understood really well. You just sound like you’re a newscaster or something, and then they answer you back. And if it’s an educated person, they answer you in modern standard Arabic, and then you’re having a conversation.
But if they answer you in their local colloquial, you’re like smiling and you have no idea what they just said. No idea. And then you have to say to them, “Oh, would you please speak formal Arabic?” which you can’t always say to someone who hasn’t had advanced schooling. And then the most embarrassing part is then uneducated people will say, “Oh, you speak such a beautiful Arabic. You speak so much better than we do.” And you’re like, “No, I don’t speak better than you do. I just speak newscaster Arabic.” But they’re taught that that’s somehow better or higher, and so they’re really like deferential and respectful. It makes you feel awful because, in fact, the whole point is you don’t actually speak their colloquial and it will take you a month to be able to like, even order in a restaurant.
Tim Ferriss: Well, it makes me think of this time I was watching a boxing match with a friend, and one of the boxers was from the UK and he’s being interviewed after the fight. And my friend said, “Wow, he’s really smart.” I said, “No, he’s not. He just has the Queen’s English as an accent.” And I’m going to ask you about Aramaic, but first I want to just point out to people how interconnected all of these things are.
So you mentioned tricks, almost like an algorithm, right, for converting this modern standard Arabic into colloquial Arabic, or specifically, I guess, colloquial Egyptian Arabic. And even the world algorithm, I believe, comes from like al-Khwarizmi, or some mathematician/astronomer who has a statue dedicated to him, I want to say in Uzbekistan, which is where I spent some time with Kevin Kelly. And so that “al” of algorithm as it’s pronounced in English, we see that everywhere in Arabic, right? Al Quaeda, and al-, al-, al-. What does that “al” mean?
Noah Feldman: Al just means the.
Tim Ferriss: The, like a definite article.
Noah Feldman: You’re completely right. And it goes in front of proper nouns and it goes in front of names too. And so almost every time you see the A-L prefix in a word that we use in English, it comes from Arabic and it almost always comes from Arabic via Spanish because the Arabs were in Spain. And then there was this long, complicated 800 year struggle over whether the Christians or the Muslims would control Spain. And if you’re struggling with someone for 800 years, you’re sharing a lot of culture and civilization along the way. And there are a lot of high moments when people are getting along.
And so it’s also true whenever you’re in Latin America and speaking Spanish, words that start with A-L are all over the language, even more than they are in English. And every single one of those words, basically with no exception, is actually an Arabic word. And that’s like, totally fascinating to me.
Tim Ferriss: It’s super fascinating. I mean, you have Arabic words used widely in South America, right, as a result. And who knows, I mean, how the sort of confluence and dispersion of different languages led to, I don’t know, the etymology and sort of background of these words. But it’s, it’s really this crisol, this melting pot. And I wanted to give a tip for people just to take this from super intimidating, to hopefully approachable. The tricks are a real thing, these algorithms. So when you see a list of languages that people know it’s not starting from scratch every time by any stretch of the imagination. And I recall going to Brazil for the first time, this is a long time ago, and I spoke a decent amount of Spanish. And there was in fact, I want to say a state department guide and I bought the print copy. It was very hard to get a hold of. It may have been from a different governmental body, but nonetheless, it was from the US government printed in English. And it was a guide to learning Portuguese for speakers, non-native speakers of Spanish.
And it just showed you how to convert, right? It was incredibly helpful and it allowed me to cheat. But as you said, if you speak Portuñol, which is some mongrel hybrid of basic Portuguese and decent Spanish, you can ask questions. But understanding the answers is a whole, whole separate kettle of fish.
Noah Feldman: There’s some kind of metaphor there. I always think I know the question to ask, and I can sort of understand your answer, but I don’t understand all of your answer. And there’s some situations where that’s really bad, like when you’re a traveler and the answer involves going right and going left. You know those words, but you don’t exactly know what they mean everywhere in between. You know, you think you’re following the algorithm, but you actually aren’t.
Tim Ferriss: What does, and I know I’m not pronouncing this properly in Arabic, but what does Al Qaeda mean, or Al Qaeda? I don’t know how to say it.
Noah Feldman: Yeah. So if you want it to say it in formal Arabic, you can say Al Qaeda, and that means the base. It literally means the base, and it was the name that bin Laden and those around him gave to their organization after the US began to help people fight the Soviets who had invaded Afghanistan. And what bin Laden’s business was basically, you know, he was a rich kid, a super rich kid. And he went to Afghanistan and he was trying to organize people from outside of Afghanistan, primarily from the Arabic speaking world, but also from elsewhere to come to Afghanistan and fight the jihad against the Soviets.
And if this doesn’t screw with your mind, nothing will, we supported him. We liked this. We wanted people from all over the Arab world who were inspired by Islam to go and fight against the Soviet Union, which was our enemy. And so the base meant the base of people who got together to fight the Soviets. And that’s how the organization got its name.
Tim Ferriss: Wow. You know, I just have to reiterate. I am so excited for this conversation and simultaneously knowing we’re going to only cover a fraction. So I’m going to preemptively invite you back for round two, and maybe multiple rounds.
I’m going to focus on the personal here, not too, too personal, but the personal for a second. And then we’re going to dig into some of your other areas of expertise. And this is the basic question. And I think a lot of people will wonder this. All right, you’re a law professor. You teach three to four courses. You’re a columnist. You write two to three columns a week. You’re a podcast host. So you tape two podcasts. Book author. On average, one book every two years. Ethical advisor. You advise Facebook, eBay, other tech companies. You’re raising two teenage kids while still taking off nights, weekends, Jewish holidays. And as I have it on good authority, occasionally sleeping until 10:00 a.m. while not drinking caffeine. What the hell? So what the hell, Noah? How do you do all of this, and why no caffeine?
Noah Feldman: I really like caffeine, but I think I’m unbearable to myself on it. And I’m sure I’m unbearable to others on it too. I think it’s just metabolic luck. You know, I wake up and I have a lot of energy to do stuff, and I like doing stuff that’s fun. I do get plenty of sleep, which I think helps a lot. I mean, I’m one of these people who believes, and I’ve heard you say this on your show too, that if you undersleep yourself, sure, then you’re going to need caffeine or some other substance to get you going. But if you get enough sleep, you don’t need the caffeine, and you can just blast hard the rest of the time and sort of suck all of the juice out of life.
So I think that’s the reason that I don’t use caffeine. Also, as I said, I think it makes me super irritating. Like I get extremely up in everybody else’s face, and extremely intense, and I can actually feel my heart beating too fast when I use it. I can literally like put my hand on my chest and feel the vibration and realize that doesn’t sound good.
Tim Ferriss: So that still leaves the question of how you structure your time, or think about, I don’t want to say time management, because maybe that’s not it. Life management such that you can do all of these things, because there are plenty of people who have, let’s just call it good genetics, good metabolism, who have an abundance of energy, who nonetheless cannot harness that energy to do one of these things, let alone this long list that I just provided while having time off.
Noah Feldman: So let me first say, I want to thank you for getting me to think about this systematically, not just in this conversation, but it was actually when I met you and we were sort of starting to chat about this. And I actually had never thought about how I arrange my life at all. I just kind of did it. But now I’ve actually thought about it a little bit. And I think the answer, if there is one, is whatever I’m doing in that moment I really try to be completely focused and present on that moment and never thinking about the thing that comes next. And over time, I think I trained myself to be able to do that.
So if I get up in the morning and walk my daughter to the bus, she’s more than old enough that she does not need me to walk her to the bus. She’s maybe even a little embarrassed by it, but I have this theory that if you’re there as a parent, sometimes in the middle of the routine, like a meaningful moment will happen and it might not happen most days when it’s seven in the morning and we’re bleary-eyed, and neither of us is in the greatest mood. But if we’re both there, one out of 10 days, or even if it’s one out of a hundred days, something will happen. And I really try to just be present for that.
If I sit down in front of my computer and say, “Okay, I’m going to write a column now,” I literally shut out everything except for that column. And I turn on my voice recognition software because I do everything by voice recognition software, and I just focus completely. And I’ve trained myself to just put myself into flow and I do it. I don’t worry about whether it’s good or it’s bad. I just get it out there. I’ll worry about whether it’s good or it’s bad when I’m done with it. And then it’s done. And then I stop, take a deep breath, read it over. I hit send to my editor. Thank God I have an editor so that I’m not reliant on myself to know whether it was any good or not. An editor will tell you, “This one was terrible; throw this one out.” But I send it to the editor and I put it out of my mind completely. It’s gone.
And then I do the next thing. And by doing it that way, I think I’m just saving the time waste that we have in a kind of self-questioning that inevitably sinks in the rest of the time. Now you might say what’s missing from this is self-reflection. And honestly, I think for many years of my life, that’s true. I think for many years of my life, I was missing genuine self-reflection. Like I had fake self-reflection, where I had conversations and thought about things. But I wasn’t really, really, really doing it.
And it wasn’t until my late thirties, when I went to see a shrink for the first time, because I was having a kind of little early midlife meltdown that I actually engaged in that kind of self-reflection. And I did not know how to do it. I really didn’t know how to do it. And I would say to myself after therapy, “Oh, my God, I’m failing at therapy.” Like I know I just wasted that whole session. And I kept on saying that for a long time.
Tim Ferriss: What do you mean by failing? What does failing look like? How does one fail at that?
Noah Feldman: Well, I guess the reason I thought I was failing is I was mistakenly thinking that therapy was like every other thing that I do. You know, a concentrated 45-minute session where you’re supposed to accomplish something. And I would go in and on the way out, I was like, “I didn’t accomplish anything. I don’t feel better. I don’t feel worse. I didn’t have any deep self-revelation. Like what the hell did I do?” And the sense, I was only doing it wrong because I thought I was doing it wrong. Like, you can’t do therapy wrong, but I thought that there was a way to do it right, and therefore there must be a way that I wasn’t doing it. And also I wasn’t getting any better.
So then I thought, “Okay, I really am doing it wrong.” And then over time, it took a long time, I came to realize that just sitting there and being in a moment and letting it happen and not saying, “Okay, I’m going to go in to achieve this, and I’m going to leave having achieved that,” was the only way therapy was ever going to do anything. And I wish I could tell you that I thought of that quickly, but I didn’t.
Tim Ferriss: So for sake of clarity, you ended up viewing therapy as almost a meditative time for non-accomplishment, and through which you found it therapeutically valuable?
Noah Feldman: Yeah, I think that’s it. I mean, I don’t know about meditative because you are talking some of the time. And depending on who your therapist is, the therapist might also be talking because some don’t like to say very much. But I think what I realized was that you have to just let things bubble up. You can’t force it, you cannot force your way into having successful talk therapy. And that was the takeaway for me. And I know most people listening to this are like, “Duh, like you have to be pretty dumb not to have realized that, like that says it on the bottle.” But I was that kind of dumb and I think it derived from having this approach to everything else where I thought, okay, what am I going to do? What am I supposed to be doing here? I’m going to totally do it. And I’m going to do it in a total, concentrated way. And I’m going to know at the end of it, that I accomplished it so that I can move on to the next thing.
Tim Ferriss: Voice recognition. How long have you used voice recognition?
Noah Feldman: Since it wasn’t that good. I’ve used it since 2002. And when I wrote my first book, which I did right after 9/11, I wrote that book on a little laptop and I screwed up my wrists from using the mouse on the laptop. And I remember in the middle of it, I actually went to the doctor because I was like, “I’m having this really weird wrist and arm pain. And I have just no idea what this pain is.” And I was actually newly married, and I was like, “I have never really extensively slept in the same bed with another person before. Does it have something to do with that?” I mean it’s an absurd thing to say. And the doctor was like, “Okay, describe what you do every day.” And I’m like, “I sit at my computer.” He’s like, “Show me how.”
I sat down. I put my hands out. He’s like, “Does your arm hurt?” I was like, “Oh, it’s really hurting.” And he was like, “You have an RSI.” And so I was like, “Okay, well what do I do?” Because you know, I realized then, and I’d written a book —
Tim Ferriss: RSI is repetitive stress injury?
Noah Feldman: Exactly. Yeah. A repetitive stress injury. And it turned out the only real answer was don’t engage in that physical movement. And at the time, there still weren’t very many touch screens. You could maybe get one, if you spend a ton of money on it. And most computers required a mouse as your primary interface. And I just couldn’t use the mouse and I couldn’t hold my wrists in a good position for typing. So I started using voice recognition software. A very close friend of mine who had actually, he had a much more admirable injury. He had injured his hand lifting. It’s an incredibly brilliant guy who was also in incredible shape. And he was like, “Oh, yeah, try this voice recognition software.” And I started using it, and at the time it wasn’t so great, but it was much better than being in constant pain. And it actually had a huge influence on me because since then, pretty much every word that I’ve written comes first in draft form from speech. I talk it. Whether it’s a column, or a book, or something in between.
Tim Ferriss: What are best practices for using voice recognition? Actually let me back step, ask another question. What technology do you use now? What does the setup look like? And what are best practices, because when I hear voice recognition, I think sitting down and best as you can, stream of consciousness, speaking out a rough draft. Is there an outlining that comes beforehand, et cetera, et cetera? So if you could just speak to the current day best practices for you.
Noah Feldman: I use a product called Dragon NaturallySpeaking, which I’ve been really loyal to over the years as they’ve continued to improve it. And it was just luck that I picked one that turned out to be one of the leading ones in the industry. I think that the company that makes it ended up also licensing their technology to a lot of other voice recognition systems. And for me, the best practices are, and it used to have a very good microphone. And now the processing power of the computers is great enough that you don’t need as good a microphone because it can handle in precision. I’m sure the quality of the microphones is also really improved. So you can sit in front of your computer and I do it by looking at what appears on the screen when I speak. And I do try to speak not quite as fast as I do the rest of the time, even though I do talk pretty fast in general, even when I’m talking to the computer.
And I think of it as though I had an audience. I imagine that I’m telling someone what my ideas are. And to the extent there’s an outline for me, it’s only that I think, where do I want to end up? And then I just start talking and try to get there. And if I feel a need for an outline in midstream, I’ll say, “There are three points that I wish to make.” And then I’ll start listing them, and that might turn out that there’s two, or six, or a hundred or that they’re all stupid. But the great thing is you can delete it all later. And you see it magically appearing in front of you as you go, and I find it way less intimidating than the blank piece of paper.
Tim Ferriss: This is my current hangup, which might just be a failing of moral character and strength on my side. But yeah, the blank page, I’ve sort of psyched myself out for the last year, year and a half. So this is —
Noah Feldman: Wow. I mean, that’s incredible to hear because you obviously have been such an extraordinary writer, and you also write in a very fluid, accessible way.
Tim Ferriss: Thank you.
Noah Feldman: That’s actually really fascinating. And I remember once reading, Tim, that you talked about, maybe it was your senior essay that you had a hard time getting into that, but then once you got —
Tim Ferriss: Senior thesis.
Noah Feldman: — into it, you did it. Yeah.
Tim Ferriss: It’s something I’ve struggled with, so the idea of using voice recognition as a lower friction way into a first draft is very interesting to me. Could you give an example of say a column, or something you’ve done recently, what it looked like when you finished that first draft?
Noah Feldman: Sure.
Tim Ferriss: And then just the evolution or revision process.
Noah Feldman: And I should just say, it’s very variable depending on whether it’s a daily column that is going to go out and you know, in the old days, they would say about newspaper columns that they wrap — yes. Do they wrap fish tomorrow in the era of the internet? They don’t even wrap fish. Like they’re not even as useful as being able to be fish wrapping. So something like that, when I write it, if I’m responding to something in the world, which is usually the way I write a column, then I usually have an argument, a thing I want to say. And I’ve usually gotten that down on paper often. Often, I’m missing good examples to prove my point. So often when I look it over at the end of drafting it, I say, “Well, that’s all very well good, but how do you prove it?” So I go back in and I —
Tim Ferriss: Could you give us a concrete example?
Noah Feldman: Yeah, exactly. There I am. It shows you that I need it. So I just wrote a column about Justice Neil Gorsuch, who’s the first Supreme Court justice ever to have a doctorate. And I was trying to explain why that mattered for his, what appears to be, his real aspiration, which is to be the heir to the late justice Antonin Scalia as the conservative intellectual leader of the court. And so I began by kind of like saying this, that he’s the first one to have a doctorate, and describing how he went back to get it in the middle of his legal career, which is kind of incredibly impressive. And I don’t know how in the world he did it. And then I said, then I paused and said to myself, “Okay. But how do I prove that he really wants to be the intellectual leader of the court?”
And so I said, “Okay, I’m going to use this really famous decision,” he’s only got one really famous one so far. So there weren’t that many examples that I could use, but this case called the Bostock Case from a couple years ago where he, who’s a real deep conservative, ruled that the anti-discrimination laws Title VII, that prohibit workplace discrimination, and that say no workplace discrimination because of sex, extend to discrimination against gay and trans people. And so I popped that in as the example, and then I just tried to explain why it proved my point. Namely, that he was saying something that was completely the opposite of what his ideological buddies believe, but he was doing it out of a principle of consistency. And the principle of consistency is supposed to be that he believes you’re just supposed to read laws according to their text.
You’re not supposed to look at their intention, and you’re not supposed to look at the purpose of the people who drafted them, you’re just supposed to look at the text. And he said, if you just look at the text and it says, because of sex, well, if you’re discriminating against a gay person, because he’s gay, then you’re discriminating against him because you’re treating him differently because he has sex with men than you would if it were a woman who has sex with men, because that person would be straight. And so therefore you’re discriminating based on sex, ditto for a trans person. So it’s like highly formalistic, but he said, “Well, I’m not going to pay any attention to the intent of the people who wrote this document, who were not thinking about gay rights, and who probably never heard of trans rights.” So basically I then used that example to say, “You see, this is how someone who wants to be an intellectual thinks,” right?
Basically, and as it happens in this instance, I’m really happy with the way it came out. But the form of logic is this highly weird way of talking that a regular person interpreting a law would never, I don’t think, hit on. So then I thought, okay, that’s not a bad example to show I hope that he really wants to be an intellectual leader. And for that, he needs to be consistent. And to be consistent, he has to do something that seems totally non-obvious and actually makes a lot of people on his side mad at him.
Tim Ferriss: This example makes me think of scripture debate. And although I haven’t read the book, the premise, I believe of this book called Misquoting Jesus was looking at the linguistic path that various sort of translations and mistranslations have taken that is such a fascinating, potentially problematic approach.
Noah Feldman: Well, you are making a great point. Yeah. I mean, that’s a great, great point. The comparison between the interpretation of scripture, and the interpretation of the Constitution, is a really tight one in US history. And in this book that I’ve just finished about Lincoln, The Broken Constitution, I’ve actually got great examples of black abolitionists in the 1830s, ’40s, and ’50s. When we just, if we’ve heard of an abolitionist who is black from then, we’ve heard of Frederick Douglass, but there were actually dozens of very serious committed black abolitionists. And they’re actually debating the Constitution, and they’re discussing explicitly whether it should be compared to scripture, or not compared to scripture. Because they are discussing whether you should bring your personal beliefs to bear on the interpretation, or whether you should interpret it in the light of what the people who wrote it believed. And that’s a very similar debate to the debate that happened around scripture, because Protestants often thought in America that you should interpret scripture partly in the light of your own inspiration.
Whereas Catholics historically thought that you should interpret scripture in the light of what the Church fathers said that that scripture meant and what the Church said that it meant. So those are totally different viewpoints. And so, here you have these black abolitionists who, not for nothing, a lot of them had also studied religion and some of them were ministers, were arguing exactly about, should we interpret the Constitution that way or not? And it really mattered because if you interpreted the Constitution according to the people who wrote it, they knew it was racist because it protected slavery. But if you interpret it according to their beliefs, you could read it against the grain. And you could say that it was actually an anti-slavery document, or an anti-racist document, because you knew if you were a black abolitionist in the 1830s, ’40s, ’50s, that racism was evil.
Tim Ferriss: We are going to come back to The Broken Constitution, 100 percent. And in part I’m spending my time or taking my time meandering through different topics because you very graciously informed me or maybe foolishly informed me that we do not have a hard stop. So I have a million and one questions, we are going to come back to The Broken Constitution. But before we get to that, I think it’s important to ask a few questions. What was your major undergrad?
Noah Feldman: It was Near Eastern languages and civilizations, which was basically Hebrew, Jewish, Islamic material, basically from all different historical periods.
Tim Ferriss: Why law school? And maybe as a two for one bonus, since I mentioned before we started recording, I was like, “Oh, JD, I’m familiar with that one.” You could give people a little trivia on JD, but why law?
Noah Feldman: I knew at the end of college, and then having gone and done a doctorate in medieval Islamic studies. I knew that every morning I’d be thrilled to get up and enter the Middle Ages. I knew it would be fun for me. Every day. I was a little worried that at the end of the day, when I looked back and said, “What contribution have I made to the world? How have I affected the world?” I hope in a positive way, that I wasn’t going to be completely satisfied. Not because I believe there isn’t something really fundamentally valuable about study for its own sake. I do. I believe that study for its own sake is tremendously valuable. But I just thought for my own personality, that I would be frustrated to feel like, okay, you understood some guy who lived a thousand years ago better today and you helped the five other people in the world who care about this dude, to understand it better.
And again, I have tremendous honor and respect for people who do that all the time. And I work with them in the university, and I’m always telling them how valuable and important what they do is and telling the rest of the world how important it is. But I knew I would be frustrated with it. And law seemed to me like a domain where you could still try to crack the codes. You could still study things. You could still try to go deep. But where at the end of the day, there’s always an output that affects real people in the real world. And you can either do it really badly and harm people, or you can try to do it better and perhaps make the world suck a little bit less at the end of the day. And I think that’s the aspir — I’m not saying that every lawyer manages to do that every day, but that is the aspiration of law as a legal system.
That’s why we have a legal system, to try to enable us to arrange our world in a slightly better way than we’d be able to arrange it without. So I said, let me try this out, and see if I like it. And on the JD thing, that’s actually really funny. If you look at old people’s resumes, people who went to law school before the late ’60s, it’ll say often LLB, which is what the degree used to be called, it used to be called Bachelor of Laws. And now it says JD. And so, you look at that and you think, “Oh, they must have really made school a lot tougher and more serious when they changed it to a JD.” No. It was a pure marketing —
Tim Ferriss: And what does JD stand for? Just so people know the significance.
Noah Feldman: Juris Doctor, which means a doctor of laws. And the whole thing was a marketing exercise by the American Bar Association in the late ’60s, who were looking at physicians whose prestige had really gone up. And they had FOMO and they thought, “Well, they go to school, we go to school.” Then again, they also learned to cut up a cadaver, which is not something that a lawyer does. And they said, “We’re going to change the name of this degree.” And they pressured all the law schools to change the LLB into a JD. They had a further excuse, which was, they said, “Well, it’s not your first degree. You’ve already gotten a BA. So therefore your second degree should be something else.” But if they were really serious about that, they could have called it a Master’s. But they didn’t, they called it a Doctor degree. So yeah, that happened.
Tim Ferriss: The rebrand. Rebrand and upgrade.
Noah Feldman: Lawyers are really good at that. Lawyers are like, “Everybody else can’t have a monopoly. And we’re going to pass a law against monopolies. Oh. But if you want to practice law, you have to pass the bar.” Who controls that? A bunch of lawyers. They say you have to go to law school. What’s that? It’s a monopoly. They’re like, “It doesn’t apply to us, it doesn’t apply to us. That’s just a necessary professional qualification.”
Tim Ferriss: What other forces or people contributed to your decision to go to law school? Or was that just from self-study, and decision making on your own? Were there other inputs that really swayed you to take that path?
Noah Feldman: There definitely were. And I would say it started, like a lot of things in my life, started with my dad who had himself been a social psychologist, not a lawyer, but was always interested in law and legal institutions. And he used to take me actually to the courthouse in Cambridge, Massachusetts, where I grew up when I was a little kid, just to watch the court cases and gave me books about law. And I think he was making it pretty clear that he wanted me to at least look into this as an option. I also remember reading as a kid, I had a very kind of 1970s, Cambridge, Massachusetts book, which was written for kids. It was a paperback book written on this very kind of brown kind of whole-wheat-colored paper designed to tell you that it was by hippies for hippies. And it was a book for kids and it was called [I Am] Not a Short Adult!, which I think is a funny title for a book.
And the irony is the book kind of did treat you like a short adult. And there was like a little sidebar with a drawing. And it was about a Supreme Court case called Tinker against Des Moines School District. Which at the time was a pretty fresh case. And it was a case where a family’s worth of kids, young teens in Iowa, wore black armbands to their school to protest the Vietnam War, and they got suspended for it. And they went to court and the Supreme Court actually held that they had a free speech right in public school to wear those arm bands because the court said it didn’t disrupt the school. And even though they were kids, they had a constitutional free speech right. And that also blew me away. Like the idea that kids had rights seemed incredibly exciting to me. And no one explained to me at the time that since I went to a private religious school, I had no rights, but that was a separate part that I had to learn later on.
And so that I think also had a big influence on me. And then last, I would say when I was in college, I took a class on constitutional law that was offered for college students. And there was a terrific teacher, a guy called H.W. Perry, who went on to teach later at the University of Texas as well. And it was a very intense, great group of just a great group of students in this class. And we all did constitutional law together. And we were like a little conlaw cult, and it was so much fun. And some of my closest friends are people who were in that class with me. So it was a really important formative experience. And after that I thought, “Oh, this is what law school’s going to be like all of the time,” which at its best, it was, although it wasn’t always like that.
Tim Ferriss: I’d like to ask a bit more about your dad. So you mentioned that he was not so subtly sort of wink, wink, encouraging the consideration of the legal profession and that he also had a moral to the story. I think you said as he always did. Why do you think he wanted to encourage you in the direction of law, and what did it look like? How did he present those morals? Would he just say, “You know, Noah, I’ve been thinking,” and tell you some random story and say, “The point of the story is X,” or maybe it’s not that on the nose. I’d just be curious to know how he sort of instilled those morals in you.
Noah Feldman: Well, to answer that question, I have to explain that both of my parents were social scientists. So their parents were the people who, their grandparents had immigrated, their parents — one of my grandfathers went to a pharmaceutical college, the other went to a teacher’s college, so they went to some kind of college. But my parents were the generation that like made it to fancy universities. So my parents both had PhDs, my dad in social psychology, and my mom in political science. And so they were social scientists, and they were really interested in the question of what causes people to do stuff. And my dad in particular, as a social psychologist, he had done his dissertation with Stanley Milgram, the guy of the famous Milgram experiment, where he managed to get people to, they weren’t actually doing this, but they thought they were giving electro shocks to a person behind the screen.
And they basically did it because there was authority there. And my dad was also very influenced by B.F. Skinner, who was the inventor of modern behaviorism. And so that school of thought held that you could produce any behavior you wanted, if you just reinforced it. They just thought the human being is just a series of inputs and outputs.
Tim Ferriss: It’s just classical and operant conditioning. That’s it.
Noah Feldman: Exactly.
Tim Ferriss: Internal experience is a black box. Ignore it.
Noah Feldman: Exactly, all the way down. Black box entirely. This also may explain why it was so hard for me to do therapy because it’s not like in that — if you grew up being told that inner experience is a black box, it’s kind of hard to delve into your inner experience. So my dad would never lay down the overt meaning, because that wouldn’t work. What worked was just to repeat the point enough that you heard it, and then if you behaved appropriately, give you positive reinforcement. And if you behaved inappropriately, give you negative reinforcement. And it turns out that is an incredibly effective way over time to get your kids to see the world in a certain kind of way, especially if you add to it an older son, which I was, who really just worshiped his parents and in particular, his dad, and really, really, really wanted to make them proud of him.
As you can imagine, a lot of fodder there for the therapy later on too, because it’s not all fun and games, but so that was basically how he did it. And I would say measured by what his objectives were, you could only say that it worked.
Tim Ferriss: What were some of the positive and negative reinforcements, if you’re willing to share, that worked best for you?
Noah Feldman: The positive reinforcements were mostly affirmation. Words of affirmation.
Tim Ferriss: What language might he use?
Noah Feldman: Well, I’ll give you an example that includes both the positive and the negative at once, and that’ll give you the whole thing in one sentence.
Tim Ferriss: Perfect.
Noah Feldman: Let’s say I came home from school with a test, and let’s say I got a 99 on the test. And he would say, “What’d you get on the test?” I would say, “I got a 99, yeah. I got a 99.” And then he would say, “That’s great!” That would be the positive affirmation. Then there would be a beat. 1, 2, 3. “What’d you get wrong?” And that was the message, very subtly, like, “Yeah, you’re not really supposed to get something wrong, but if you did, we can learn from it, so we do not make that mistake again.” And so that captured both. It’s very subtle, I was in no doubt about what all the components of that meant. So that, I think captures both the upside, and you can imagine too, the downside, which is that you never really feel like you’ve done enough.
Because if you’re always looking for positive reinforcement, you’re never going to be perfect. And then you’re always going to worry that you’re not going to get that positive reinforcement. And so, that captures potentially a non-trivial downside alongside the upside, which is like you then work really hard to do as well as you can on whatever you see as the task in that moment.
Tim Ferriss: Hmm. I think in our round two, I’m going to want to ask you about your own parenting style. But I’ll bookmark that, leave the audience wanting more. And I want to go to Constitution specifically. I have a note here that I would love for you to expand upon. Well, actually, I’ll do the lead up. Graduated first in his class in Harvard. Got his doctorate at Oxford in just two years, instead of three. Is that right?
Noah Feldman: I did. Yeah.
Tim Ferriss: Reportedly the fastest on record. Yale Law. Clerked for Supreme Court. Then this next bullet, served as an advisor to write the Iraqi and Tunisian constitutions, lived with 50 men in a palace kitchen in Iraq for three months, got shot at, et cetera.
Noah Feldman: I like the et cetera.
Tim Ferriss: No, I love the et cetera.
Noah Feldman: I think that was my brilliant girlfriend who put in the et cetera.
Tim Ferriss: Yeah. It’s great. No, no, the et cetera sort of whets my appetite for diving into this, please, please tell the story of the palace kitchen as a way to segue into conversation about the Constitution, or constitutions in general.
Noah Feldman: The way I found myself sleeping on the floor of the palace kitchen in the Republican Palace in Baghdad with 50 other very dirty men was that after 9/11, I took advantage of the fact that I had studied Islamic political philosophy to write a book arguing for how we as Americans could change our attitude towards the possibility of democracy in the Middle East.
Tim Ferriss: What was the title of that book?
Noah Feldman: That was called After Jihad: America and the Struggle for Islamic Democracy. And I wasn’t saying that Islamic democracy would necessarily work, but I was saying no one’s ever really tried it, and we Americans have never encouraged anybody to try it. And that was before anyone thought we should invade Iraq and create a circumstance where a democracy might be able to emerge. At least that was the aspiration. But when the US then did invade Iraq, there was an immediate rush within the, actually it was the Defense Department, to see if they could find somebody who had studied Islam, could speak Arabic, and was an expert in constitutional law, to go and work on the possible development of a constitution for Iraq that would be democratic. And the bottom line is, there just weren’t very many people with that particular skillset. In fact, there may only have been a handful and the others didn’t want to go, maybe because they were smarter than I was about what was likely to happen next.
But I was 32 years old. And when they asked me, my first reaction was to say to the Defense Department official who called me, “Listen, I just want you to know, I’m very honored to be asked. I’d love to go, but you’re not going to want me because I worked for Al Gore litigating in the Bush v. Gore 2000 election fight,” which was just a few years prior to that, “And you’re going to find that out when you look me up and I don’t want to waste your time.” And the guy was a very impressive guy called Ryan Henry, a former top gun pilot, very straight shooter. And he was actually offended. And he said to me, “Young man, this is not a political appointment. We don’t care what your politics are, just go and do the job.” And I was thrilled and too naive to realize that that was just a form of words.
I mean, it may not have been from him. I think he may have meant it sincerely. It’s just that in the reality, once you got there, it turned out it was, of course, profoundly political. But in any case, I was like, “Great, sign me up.” And I went. And I thought it was especially a good opportunity because since I wasn’t a Republican, I wasn’t going to be trying to advance within the ranks of the Bush administration. So I would just get there, be on the ground, and call it like it is, which is in fact what I ended up doing. And so, we got to Baghdad about two days or three days after the statue of Saddam had come down. This is April of 2003. And it was, as you can imagine, just beyond a wreck. And we literally camped out in the Republican Palace and the kitchen was big.
It turned out, maybe the kitchen was a poor choice because there were vents in the ground and enormous bugs were constantly coming up out of there. And we put down our sleeping bags and then eventually we got these little cots and we would try to put mosquito nets over ourselves. It was about, as the summer progressed, it got to be about like 125 degrees in the shade. It never really cooled down in the Republican Palace. You don’t even want to know about the bathroom arrangements. Even though your listeners might be a little squeamish around that one, or they should be if they knew what it was like. And it was like a fascinating experience because in the cot right next to me, was a full bird colonel who was on his way to becoming promoted to being a general.
And he liked to make fun of me. And he was not much older than I was. He was probably five or six years older than I was, but he liked to call me son. And since he was about six inches taller than I was, and a very distinguished African American, he was getting a lot of pleasure out of this. And I remember the moment when they — so they issued us, all civilians were issued with the up to date flak jackets. But the up to date flak jackets had a slot where you were supposed to put in a ceramic plate that would stop bullets, and they ran out of ceramic plates. Which was appropriate because we were not high priority personnel. The ceramic plates needed to go to the frontline soldiers. So we had these vests without the plates.
And so I would wear that and then, so this gentleman —
Tim Ferriss: Desert to palace haute couture, I guess.
Noah Feldman: Exactly. Yeah, literally. And he said to me, “Son, you know what’s going to happen to you wearing that vest?” And I said, “No, sir.” I just instinctively called him sir. And he was the kind of a guy who inspired that. And he said, “Well, when you get shot with a nine,” a nine millimeter bullet, “That will slow it down just enough that when it comes through you it’ll be at a nice, easy pace. And then it’ll hit the back wall of the vest and it’ll bounce back in. And it’ll bounce around a few more times.” And he could see the blood draining from my face. And then I said to him, “Well, what’ll happen if I’m not wearing the vest?” He says, “Son, then that nine will go right through you.” And I was like, “Okay, that doesn’t sound good either.” He’s like, “Believe me, it would be less bad.”
So I took off the vest and I literally gave it to someone else who had access to a ceramic plate, but not to the vest, and let him use it. And that was the last time I wore a vest. And then I just walked around Iraq for the next couple of months, basically wearing civilian clothes, which after all is what the Iraqis we were meeting with were wearing. I mean, you meet with people, it’s not actually a good look if you’re all dressed up in battle rattle, and they’re just standing there. It sends exactly the wrong message. And so that was how I got there. And it was a fascinating, fascinating experience because I basically talked to Iraqis from all walks of life, left the green zone every day, originally I would just take a cab. I would literally go out in front of what they later came to call the Assassins’ Gate. We didn’t call it that at time, and just hail a cab.
And then at some point I started taking cars from them from the motor pool when I got to know my way around a little bit better. And this was before the really bad terrorism began. It started very shortly thereafter, but I was able to travel over the country and talk to many people from different walks of life. And I learned a lot about what people were thinking about their constitutional aspirations. And I learned a lot about what not to do when you invade another country. I mean, everything that you could possibly know about what not to do, I learned because we did every single thing that you should not do when you invade another country. And most of the mistakes we made in Iraq, we made up front in that very early period of time.
Tim Ferriss: Well, that’s a cliffhanger. I do ultimately want to come back to what was done in that palace kitchen, but what were — if we did sort of an 80/20 analysis on the things not to do, the things that one should be advised against doing when invading a country, what would be at the top of the list from that experience that you observed?
Noah Feldman: The number one thing is failing to, the number one screw up is failing to tell everybody in the country who’s in charge and proving that you’re in charge. We never did it. And the Iraqis were literally super confused. They expected, there had been coup d’états in the past, it had been a while, but they knew what would happen, right? Someone would go on the loudspeakers with trucks and say, you know, “There’s a new president, everyone stay home.” Then the next day they’d be like, “There’s a new president. Everyone show up at work.” And everyone understood that. That was like, not a request, but a direct order.
We arrived and for weeks and weeks, nobody knew who was in charge. Was there a civilian in charge? Was there a general in charge? Nobody knew who was in charge. And in fact, at one point on the street in Iraq, someone actually asked me, a group of people actually asked me, first they wanted to know “When is the electricity coming back on?” I didn’t know. “When’s the water going to start running again?” I didn’t know. “When does school reopen?” I didn’t know. And then someone said to me, “Who’s the government?” And I was shocked by this question. I mean, I understood the words. It was only two words in Arabic, but I was like, “What are they even asking me?” And then I realized what they were saying. And I said, “Oh, Ambassador Bremer is the government.” Because by then president Bush had sent out Ambassador Bremer, and they were like, “We’ve never heard of that guy.”
And I realized that in that moment that we had really massively screwed it up. So first thing you need to do is tell people who’s in charge. And the second thing is you have to prove that it’s real. And that means you have to have either police or soldiers on the street. And if you don’t have enough of your own, which we didn’t, you need to use the local people. So we should have had the local police or the local military, even if they weren’t trustworthy, out there on the streets, communicating that someone was in charge. And if no one’s in charge, then you’re not safe as an ordinary person. And if you’re not safe, you need someone who’s going to protect you. And if you’re not safe, and need some to protect you, you’re going to look for what your local affiliation is in your neighborhood. And you’re going to break into groups.
You’re creating a situation. We created a situation. It’s like, if you’re in a terrible neighborhood where there are gangs and there’s a good person who doesn’t want to join a gang, but there’s no one else to protect them, you have to join a gang because you need protection from somebody because the state’s not protecting you. And that is the situation that we created.
Tim Ferriss: To double-click on that “even if they’re not trustworthy” part, is that superior to not having them on the street because you need, at the very least, security theater, much like some of what happens, say with the TSA? Not to slight the TSA, very important, but there are some things that’s sort of a, what is it, edge cases make bad case law whenever you see some pretty wild things? But is it just to create the perception of a central competent power that has put law enforcement on the street? Is that why you say “even if they’re not trustworthy?”
Noah Feldman: Yeah. You can’t create a situation where people think there’s anarchy. And so even if some of the people you were ordering to do things might have occasionally backslid, you’d have to take that risk if your only other option is not having anybody. I mean, if we had invaded Iraq with 600,000 troops the way that Colin Powell thought we should, we would have had enough of our own soldiers on the streets to do that. But we didn’t do that.
We invaded with a very small force. And when Baghdad fell, the total number of US troops in the country was probably fewer than a hundred thousand. And in Baghdad it was way beneath that. So we just didn’t have the bodies. And so you could drive for what felt like an hour and a half through the city and not see any representative of any authority, no cops, no US troops and certainly no Iraqi troops. So you do need to create that perception. And obviously there has to be some reality behind it because people will try to test it. But the perception is crucial because if people think that there’s nobody in charge, they get scared and they’re correct to be scared.
Tim Ferriss: Let’s go back to the palace. You’ve taken off your flak jacket, AKA ricochet death machine. You’re in civilian clothing and you are working on constitutions as I understand it. If I’m getting that wrong, please correct me. But let’s start with basic, basic, basics. What is a constitution? And then if you could pick up the story.
Noah Feldman: A constitution is a blueprint for how any group of people wants to govern itself. And it requires collective agreement, not of necessarily every person, but of, let’s say a super majority of the people, a lot more than half. And because human beings can’t get together in the hundreds of thousands to do that, what that practically means is that a smaller number of people have to propose the agreement and then have it validated by the more general public. And if you’re trying to build one of these things from scratch, the first thing you need to know is what people could credibly speak on behalf of the general public. What group of people could propose something that would have a chance of actually being accepted? So you need the right people at the table. And those also have to be people who think in the end that they have more to gain by an agreement than they do by failing to agree. And if they don’t have more to gain by it, then they’re not going to agree, and then you’re going to get a kind of a collapse.
I would just add one footnote to that, which I learned the hard way in Iraq, which is you can’t really do this if you don’t have order. If your situation is to use the amazing Argentinian Spanish word that you already taught me, it’s quilombo, right?
Tim Ferriss: Quilombo, yeah, exactly. That is a perfect example of a quilombo, yes.
Noah Feldman: If you have quilombo, there’s no chance that you’re going to be able to build a constitution. You might get a peace treaty to stop people from killing each other and then you could talk about a competition when you have ordered. But if you don’t have —
Tim Ferriss: Is that just because of Maslow’s hierarchy of needs, you’re sort of skipping a few rungs, is that why you can’t do it?
Noah Feldman: That’s definitely part of it. But I also think it’s that to reach an agreement about how we’re going to govern ourselves collectively, we have to have some general idea of how power is arranged in our society. We have to really know who are the powerful people, who are the weaker people, what are the different capacities of different groups to get what they want? And if I think that tomorrow you’re going to come with your neighbors and shoot me, then again, we might be able to reach a peace treaty, but I’m not going to trust you enough to reach an agreement about how we would collectively govern in the long run.
And if you also simultaneously think that I might do that to you, we’re both like eyeing each other and trying to gauge what the potential violence might be that we would do, we’re not in a place where we can realistically negotiate a plan for how we’re going to self-govern over a long period of time. I do think the hierarchy of needs is relevant there for sure. And safety is of course, right up there alongside food shelter, and water. And when you have a breakdown of safety, there’s an extreme uncertainty that follows, and you can’t negotiate against the backdrop of that much uncertainty in a realistic way.
Tim Ferriss: How do you draft a constitution when you have, let’s just say you are not operating in a worst-case environment. How do you approach drafting a constitution? How did you approach drafting a constitution?
Noah Feldman: Almost no constitutions in the modern world are totally invented from scratch, right? The same would be if, like you were doing a startup, you probably want to invent your corporate culture from scratch and you probably want to invent a new product, but you don’t want to invent the corporate form of government from scratch. There are other people who have done that and you can pick and choose from a kind of menu of options and then tweak it to your particular set of interests. And that’s how most constitutions in the modern world are done.
Even when James Madison was trying to originate modern constitutionalism, he looked to the ancient world, to the constitutions of the ancient world as models, and he also looked to the British Constitution, even though that one wasn’t a single written constitution, he still looked to aspects of it. So the idea for example, that there would be a legislative branch and an executive branch and a judicial branch was not one that was just being invented then, that they were borrowing that, that was an idea that had been around. So you do some borrowing from other constitutions.
And then you have to answer some, a handful of really core definitional questions. What are the powerful entities within the society? How can they best trust each other? How should the public be represented? Do you want to have a parliament that represents everybody and then only have the executive be derived from the parliament the way you would in a parliamentary system. Do you want a president who is independently elected by all of the people? How much power should the president have relative to the parliament? Those are the kinds of sort of second order questions that you want to try to answer. And you want to answer those questions, you want to answer those questions, not in the abstract, but concretely by reference to what the different groups of people in the society want, what their beliefs are, and above all, how they could agree to live together in a way that will share power and ideally where they’ll be able to alternate power between different groups of people. Because if you can alternate power, you get a lot of good incentives for everyone treating everybody relatively well.
If I think that my group is going to have all the power all the time, there’s just no reason to treat your group well. I might as well expropriate you, take away your property. I might enslave you, treat you as second class citizens, but if I think that in the next election you’re going to be ruling over me, then I’m not going to do that to you. We have a kind of like, we have a standoff and that standoff enables us to say, “Okay, let’s all agree on a system that has equality and rights because sometimes I’m in charge and sometimes you’re in charge and I’d rather be equal when you’re in charge, and you’d rather be equal when I’m in charge.”
Tim Ferriss: This might be a strange question, but are there any particular constitutions or the equivalent of a constitution, past or present, that you find particularly beautiful or elegant?
Noah Feldman: The South African Constitution that came into being after Nelson Mandela was let out of prison and the ANC came to power and negotiated a constitution with the former apartheid regime, is at least as written, a kind of best practices, modern constitution. Not that it was perfect. Because it guaranteed a lot of rights, which is good, but it also took recognition of the economic realities of South Africa. And what I mean by that is that the ANC, they knew that the distribution of wealth in the country was fundamentally unjust after generations of apartheid and before that imperialism, but they also knew they didn’t want white South Africans with their capital and know-how to flee the country as had happened, for example, in Zimbabwe, when it was no longer Rhodesia. And so they knew that they had to guarantee the rights of the white minority, even at the expense of not redistributing wealth in a way that would have been fair, so as to enable the country to develop and evolve.
And if you talk to contemporary South Africans, they will be very honest with you about the failings of this post-apartheid order as well. It’s not as though life in South Africa is perfect by any stretch of the imagination. They’ve been plagued by a whole range of problems, including serious corruption. But what they did succeed in doing is that there was not massive capital flight. There was not significant violent retribution by formerly oppressed Africans against the white population. There was not civil war. Those are incredible accomplishments. There was a certain amount of truth and reconciliation achieved through a truth and reconciliation commission. And so that constitutional order, which was a very carefully, subtly negotiated one over a longish period of time actually is in many ways, extremely beautiful. Again, notwithstanding, that in the real world it didn’t solve every problem.
That’s the other thing to keep in mind about constitutions. They can’t solve every problem. You know, if your society sets a high unemployment, you can have a beautiful constitution, you can’t solve the unemployment that way. Tunisia has that. Tunisia drafted a really elegant constitution, not perfect, but really elegant constitution after the Arab Spring and after they transitioned to becoming a kind of a democracy. But the Arab Spring started because people were mad that they had no jobs, to oversimplify. And after the democratic government came into play, they still didn’t have jobs.
Tim Ferriss: Right.
Noah Feldman: And they were still mad because you can have a perfect constitution; it doesn’t solve the fundamental economic struggles that a society faces. Constitutions can’t do everything.
Tim Ferriss: I’d like to broaden the way. Well, really have you broaden the way. I’m not going to do much heavy lifting here. Think about constitutions. And I also want to say, because she was mentioned earlier, I need to thank your girlfriend for a tremendous job of sending lots of well-prepared and juicy jumping off points for exploration. So I want to give her a special shout out because it’s been tremendously helpful and exciting for me to have that in my back pocket. So here’s one, I’ll read this, and then I’d love for you to elaborate, because I think it’ll be of interest to a lot of listeners. “To know what will happen in crypto, you need to know how constitutions work and how they fail.” Please elaborate.
Noah Feldman: So echoing your point of I’m tremendously grateful to her for teaching me how to do this and for making me sound a lot more interesting than I actually am. So here’s how a crypto platform is like a constitution. Every single cryptocurrency is based on an agreement among the participants in the platform that underlies the currency about how they’re going to interact with each other, how they’re going to distribute power. Who’s going to be able to decide how many of the coins, if it’s a cryptocurrency, how many of the coins are produced. How they’re going to be distributed. How the blockchain is going to take account of that distributive process. How decisions are going to be made when there’s a conflict among different participants in the platform. Who is capable of forking the platform so that you get a different platform that comes into existence? Which, in the world of constitutions, we would call a revolution or a civil war.
Those are the kinds of questions that ask, how are we, this group of people, going to govern ourselves in this common enterprise that we have? And what you have, again, is that beneath every crypto platform is a literal agreement. Words written on paper that describe what the rules are going to be. And then what’s distinctive about the crypto context is that those rules are then instantiated in a series of algorithmic programs that facilitate making sure that you do follow the rules and to double check that or triple check that or if any larger number than that, check that through the blockchain. And so when a platform goes well, it’s because the participants in the platform are following those rules and are in agreement with those rules. And when it goes south it’s because there’s a dispute over those rules. There can be a break over those rules. And at that point, people might abandon the platform or they might fork and create an alternate platform, or they might actually get into a literal fight over what’s supposed to happen.
And I should say just to give a lot of credit where it’s due, someone you’ve had as a guest on your podcast, and I even managed to get them onto my podcast, which was, I thought a minor miracle. Not surprising he’d be on yours. Vitalik Buterin, who is one of the core figures in the founding of Ethereum, has got a terrific essay on his own blog about legitimacy, the concept of legitimacy in the crypto world and on the blockchain that really helped me think these things through and really made me realize the depth of the similarities. Because legitimacy is a property of constitutional systems when they’re working well. It’s the property that everybody who’s in the system can predict with a high degree of probability, how things are going to proceed, and everyone thinks that’s basically fair. And if you withdraw either of those components, either their predictability or the fairness, the constitutional system will collapse and the same turns out to be true of a crypto platform.
Tim Ferriss: Vitalik is a smart cookie.
Noah Feldman: Oh, wow. What a bright guy.
Tim Ferriss: To make a huge understatement. Are there any other thinkers and/or practitioners, if that makes sense, they could be computer scientists, they could participate in some other capacity, but any thinkers or practitioners in the space of blockchain cryptocurrency, who you find interesting outside of Vitalik?
Noah Feldman: I mean, there are many, and I’m often in a position of just trying to understand what the new innovations are that people are coming up with in real time. I think one reason that I’m so drawn to Vitalik is that he does something a lot of others don’t do. He spends a lot of his time explaining stuff in terms that are accessible to people who aren’t already on the inside. And not infrequently, I’ll read something by somebody else and I think there’s something really important, I don’t totally get it, then I go to Vitalik’s blog and I see him engaging with it, he actually explains it. So and explaining things well is the different skill from inventing stuff. And he happens to have both of those skills.
Tim Ferriss: Yeah. He’s Like Nikola Tesla and Bill Nye the Science Guy wrapped into one.
Noah Feldman: It’s really, it’s really true.
Tim Ferriss: I’d like to, we’re going to bounce around a little bit, but this is all interrelated. How does understanding of history allow you to be a futurist?
Noah Feldman: I think in some way, all of us every day are trying to figure out what’s going to happen tomorrow. And that’s true in an obvious way if you’re investing in something you want to know what’s going to happen to that asset tomorrow. It’s true though if you’re picking a job. It’s true if you’re choosing a relationship. It’s true in some way, if you’re just getting up in the morning that you’re trying to predict what’s going to happen in the world. And at the most fundamental level, we do that by looking at the past. And there’s always the constant reminder of past performance does not guarantee future results. And that’s true. But the reason we have to bother to say that is that the past is our first guide to figuring out what’s happened.
What I like to do is to try to see the way that crises and problems and challenges have played out in the past, and then ask whether a change in our arrangements is actually going to fix those things or is actually inheriting those problems. And where this is especially useful, I think is in environments where we know that we’re facing some disruptive technology or some disruptive change. So I don’t know, take an example, take Airbnb. Airbnb self-consciously set out to disrupt the hotel industry and they did it. If you’re trying to figure out when Airbnb was getting started, what challenges will they face? One thing to do would be to look to the history of the hotel industry and ask what was the biggest challenge the hotel industry faced in say the 20th century? And the answer turns out to be racial discrimination, right? You know, for much of the 20th century in the United States, hotels were racially segregated in the large parts of the country, integrating, and the process of integration had a lot to do with hotels.
Some folks may have seen the movie The Green Book, which literally refers to the physical book that African-Americans had to carry with them when they were traveling around the segregated south. So they would know where they were legally allowed to stay, right? So the process, that shows you the fundamentally transformed nature of desegregation. So now you’re Airbnb, you’ve disrupted this industry, it would have been plausible and easy to predict, I would even say, maybe easy is too strong a word, but possible to predict that Airbnb would face challenges around racial discrimination by their users, both by people who are renting out Airbnbs and people who rent them because they were inheriting this industry.
And so the social challenge that had faced that industry wasn’t going to disappear when it passed into this new industry. And I think that’s a nice concrete example of how looking at the past can actually help you make predictions about what the challenges are going to be in the future. And then those are actionable predictions. Then you can say, well, if we’re going to design a disruptive technology for hotels, we need to build in protections against forms of racial discrimination that we think are wrong. And, you know, Airbnb eventually got around to that and did do that. But that’s an example of where you can look to the past and you can learn a lot about what’s going to happen in the future.
Another concrete example would be political polarization, which is something that I think all of us have had to spend a lot of time thinking about over the last five or six years. And it doesn’t really matter whether you’re thinking of it because you care about politics or you’re thinking about it because your business is a business that inevitably interacts with the public and the public has polarized. I mean, we live in a world where it’s not just the politicians we vote for who are becoming polarized, but our views about science are polarized. Interviews about medicine are polarized. And our brand choices are increasingly polarized in a range of ways. So we all have to think about it one way or another.
There you can look back to past instances of polarization in our society, which have in many cases been devastating, and you can look at the ways we crawled out of those. And you can take advantage of the things that worked when we did crawl out, primarily forms of compromise and forms of recognition of the other side is having more in common than actually separates us. And you can try to self consciously build on those models to try to figure out how to make the future somewhat better than it otherwise might be. And you can also look at when we failed. The Civil War being the big example of where our polarization just failed and we split in two. And you can try to avoid the problems that helped create that failure.
Tim Ferriss: I have so many questions. I feel like, I feel like a little kid who’s so excited, just jumping up and down, trying to target a parent’s sleeve to get attention because they just, they can’t contain, they can’t contain what they want to say. I’m just going to try to spit these out one at a time. All right. So the first is, do you have any recommendations for books, it could be your own, for people who want to study — and I’m not sure exactly how to separate or define these things but, the creation of governance and maybe estate building. The name Francis Fukuyama comes to mind because a friend has recommended his work over and over and over again. I know that Patrick Collison, when he was on this podcast, we talked about, I believe I’m getting the name right? Lee Kuan Yew, am I getting that right?
Noah Feldman: Sure. Yeah.
Tim Ferriss: Who transformed Singapore into what it is? I mean, just an incredible, incredible story. But for people who are, for practical purposes, trying to get a grasp of this. And I think about, for instance, blockchain and DAOs right, these new organizations. Man, oh, man, are lawyers going to be busy. But putting that aside, there are people right now who are crafting constitutions, right? They’re doing this with some frequency, especially with the experimentation that is happening en masse right now, if you just look at, say NFTs and so on. Which, as much as people might ridicule them for the surface level appearance of just silly JPGs, there’s a lot underneath that I think is deeply interesting and will prove valuable. Any books you might recommend for people who want to roll up their sleeves as possible crafters of constitutions in governments?
Noah Feldman: Yeah. So I agree with you that Francis Fukuyama, Frank Fukuyama is amazing on this. He’s especially good also on how things fall apart. He’s very, very good on what he calls the decay as well as being very, very good on the building of such institutions. I actually had him on my podcast recently and he’s just totally spectacular on this. And so his work is also, even though he’s a very scholarly person, the books are written in a very readable and accessible way.
Tim Ferriss: Is there a starting point you might recommend of his books?
Noah Feldman: Yeah. I mean, I think — it’s interesting. One of his most recent books is this kind of grand, grand book, Political Order and Political Decay. It’s an amazing book. It’s not a short book. And I don’t know if I would recommend it, the whole book, as an introduction, but I think you could read the first part of the book, which is sort of a book on its own and get a really good account of how political order comes into existence. And then take a deep breath and then read the second part of the book about how it all falls apart on the other side. So I think if I was going to pick one of Frank’s books, it would be Political Order and Political Decay.
Another book, which is a bit shorter and which I have found incredibly helpful for me is a book called Democracy and the Market. And it’s by a Polish born political scientist whose name is Adam Przeworski. And I’ll spell his last name because it’s not how it sounds. It’s P-R-Z-E-W-O-R-S-K-I. Pronounced Przeworski because that’s how languages roll. And Przeworski is just also just a completely fascinating, fascinating person who was very influential on me when I was trying to figure out how you design governments. And one of the things that he talks about in Democracy and the Market is about how the creation of democracies is intertwined with the operation of capitalism. When we study in school, how democracy has come into existence, we usually don’t really think about how they interface with the organization of capital. But actually it’s centrally important.
It’s sort of the big Alexander Hamilton point that Alexander Hamilton was always making when the US was founded. Dr. James Madison had designed the Constitution and Hamilton basically said, “I don’t really care that much about the Constitution. I care about the financial markets.” And he literally walked out of the Constitutional Convention halfway through. He was like, whatever, it doesn’t matter. I don’t care. But then once there was a government, he devoted everything he had as Secretary of Treasury to basically creating the bond markets. And he did it because he thought that by creating a bond market, the government would have somebody it could borrow from. It would then be able to raise the capital to do stuff and that it would be effective. Then it could have a Navy and then it could eventually have infrastructure. You need to borrow money to do this stuff so you need to create a bond market so there would be a way to actually do that.
And he also wanted the government to need to borrow money so that there would be a bond market, so that wealth could be created, so that you could have capital markets, so that they could build manufacturing. Madison didn’t care about any of this. And in fact, he opposed most of it, which was, in retrospect, hopelessly naive. He was like this Virginia gentleman with enslaved people working for him on a plantation, which was not the future, let’s just say, with respect to the economy of the United States. So Przeworski is great on that. And I think his book, and it’s a short book and very readable, even though it’s not a new book, he’s got newer books, but that’s the one that I recommend to —
Tim Ferriss: I don’t need new. I kind of like old if the principles still hold, which it sounds like.
Noah Feldman: I think that book really, really does. Yeah.
Tim Ferriss: Przeworski. Czech and Polish, they’re like the opposite of Hawaiian, right? Like the Hawaiians love vowels and man, oh, man, like the Poles and the Czech just love consonants.
Noah Feldman: They really do. They hate themselves and vowels.
Tim Ferriss: I’m debating where to go next here.
Noah Feldman: I could talk about the DAOs a little bit if you want. I didn’t answer that part of the question.
Tim Ferriss: Yes, please.
Noah Feldman: So just to mention them. So DAOs, and it stands for decentralized autonomous organization, are a kind of very interesting promising, still, I would still say, flavor of the month kind of organization that operates on the blockchain that is supposed to, and when it works well, does, allow for collective decision-making, “from the bottom up.” That is to say they do not have a central authority in the middle. They don’t have the centralized decision-maker that most constitutional systems ordinarily do have. They don’t have, as it were, a president or a prime minister. And they also don’t have a hierarchical system where a staff or a board of directors that’s elected makes decisions about where the assets of the organization should be put. Instead, the idea is that everybody collectively who’s in the DAO can vote on how resources are going to be allocated.
So they’re kind of a strong wisdom of crowds idea. The idea is that if the collective makes the decisions, the odds are better that the collectivity will make good decisions. And that also tells you what the value proposition is. It’s in a way, the DAO is in a way, to invest in a DAO is in a way to bet on the wisdom of the crowd and not just the wisdom, but on the collective capacity of the crowd to work together. And that’s a fascinating bet, and you can see from that formulation, why it’s very attractive and also why it’s a bit utopian, and why some people remain skeptical of the capacities of DAOs to do all of the different things that people hope that there’ll be able to do. Because again, talk about using history to predict the future. If you look at the history of decentralized decision-making organizations, they’ve often existed, guilds, some labor unions, depending on how they were organized, they can do certain things really well, they can coordinate certain things really well, but there’s certain kinds of decision-making that historically are really hard to make in a decentralized way. So when you’re engaged in a conflict with another entity, when you’re engaged in direct competition with another entity, when you need to coordinate action beyond the initial purposes and evolve your purposes, historically, it’s been really hard for decentralized organizations to pull that off. So you want to pick and choose carefully with respect to what the DAO’s purposes are and what its objectives are. And that should be helpful to the process of deciding how do you want to be involved in the DAO, and what will it be capable of accomplishing?
Tim Ferriss: So someone in my household, may or may not be me, may have become somewhat, I don’t want to say infatuated. That’s not the right word, but obsessed with researching a lot of the kind of nitty-gritty aspects of DAOs and DAOs. I like saying “DAO” just because it makes me think about the Tao Te Ching, right?
Noah Feldman: Yes, totally.
Tim Ferriss: That had a character is actually Thao, in Mandarin, which I think is metaphorically sort of appealing —
Noah Feldman: Much better branding. No question.
Tim Ferriss: In part because I think of the fact that not all iterations need to work, but you will have massive trial and error over a compressed time period, which is what gets so exciting to me, because if you wanted to create a new corporate entity structure outside of C Corp, S Corp, LLC, like good luck. I mean, it’s just going to take you forever to get there. But in the case of a DAO, you can really experiment, and in a sense split test, even though it might be two competing parties trying to collectively acquire assets, let’s just say. And there are some that have become really interesting and really powerful, like Flamingo would be an example. And I don’t know if this has been done yet, maybe it has, and I’m just getting up to speed on these things. But for instance, I have a foundation and the foundation funds all sorts of research into say, psychedelic therapeutics, and so on for different supposedly intractable psychiatric conditions, although I would veto the intractable part at this point.
And it’s a real pain in the ass to deal with the foundation as a tiny, tiny team. There’s a lot of paperwork, all due respect to lawyers, lots of lawyers, lots of hours, lots of filings, lots of to this day, signatures of multiple people. If I want to accept, say, donations from other people, capital from other people to fund projects, there are various types of red tape and headache involved. But if there were the potential of bringing people into a DAO, collectively contributing, and then having some type of tax efficient/tax deductible approach to donating to non-profit ventures, my God, that would solve a huge pain point for me. I don’t like being the centralized control point for this. And I guess that’s more of a rant than a question, but are there any particular experiments that you’re looking forward to seeing or hoping to see in this space? Doesn’t have to be DAO specific, but it could be more broadly speaking.
Noah Feldman: I mean, you just named a fascinating one. So to the extent that one of the things that these DAOs on, I’ll use your terminology —
Tim Ferriss: Sorry, I might be corrupting you.
Noah Feldman: No, no it’s good, that they do is they facilitate decision-making about assigning assets. Not only acquisition of assets, but assignment of assets. I’m really fascinated to see which things they’ll succeed in doing really well, and which things they’ll do less well at. So take, for example, a foundation where you want to do good in the world, but where you want to devote those assets is a question that reasonable people could differ about. Part of it will be would the people who participated in that decentralized autonomous organization be people who shared your worldview enough that you would think that was good? So if there are people who, if it’s listeners to your podcast, and people who read your books, there might be enough overlap that they would want to, for example, promote psychedelic research, which is having these extraordinary successes today.
I don’t know if they would have thought that 10 years ago when you started doing this, or not. I mean, that’s one of the interesting questions. Could a collective be as forward-looking and as willing to take certain kinds of risks as you were on this issue? We do know that when it comes to certain kinds of factual questions, crowds do really well. So if you ask a factual question, the collectivity might be great. When it comes to predictive questions, it’s a more mixed bag, right?
Tim Ferriss: Totally.
Noah Feldman: If the crowd always did well on that, the markets would always make the correct predictions. They don’t always make the correct predictions, because groups are subject. There’s human beings behind there, and they’re subject to all of the biases and uncertainties that are out there. If the people who bought into the DAO were representative of the world, you might have like a huge number of people who were adherent to the Chinese Communist party, and another large number of people who were deeply committed, believing Muslims. I’m just thinking of groups that have more than a billion people. And they might fight it out within the DAO about what they want to invest in. And so, again, I think it’s very much about the purpose and who the participants are. So those are the kinds of experiments I think that are going to, as you say, in an iterated way, show us what these things are really good at, and show us where these things run into some of the limitations of human coordinated behavior.
Tim Ferriss: Absolutely. And I was thinking of your comments earlier on attempts to create, I don’t want to slight it with “utopian” implying naive, necessarily, but in some cases they were, attempts at creating non-hierarchical flat consensus-based communal living. Almost every one of those experiments has failed as far as I can tell.
Noah Feldman: Yeah.
Tim Ferriss: Typically, in spectacular fashion. Like there are these catalyzing events. And I remember at some point, I can’t remember who wrote this initially. I think it was actually a very old book maybe in the 1980s on terrorism, believe it or not, but that every movement attracts crusaders, criminals, and crazies, it was like the three Cs. And also, just observing or studying history, you see that within, if there is a void of concentrated power, eventually someone will come in to capture that void, or occupy that void, if that makes sense, right?
Noah Feldman: Yeah.
Tim Ferriss: And within our historical frameworks, that could be done. What’s also interesting to me about DAOs, and not just DAOs, but blockchain in general is that if you have supposedly, well, if you set it up such that you have uneditable smart contracts, that the social engineering that one could impose to fill that void is perhaps more difficult. But at the same time, you have to really get the thinking right upfront, because you could perpetuate bugs all over the place. I don’t know if you have any, if that prompts any thoughts.
Noah Feldman: Yeah. I mean, I think you’re making a really deep point about the idea of the upfront uneditable contract, right? I mean, smart contracts are awesome because of their enforcement capacities. What makes a smart contract better than other kinds of contracts is it’s as close to self-enforcing as you can get. You don’t need a whole legal system to do the enforcement side of it, and that’s what makes it smart. But the uneditable part means it also has a feature that no real-world contract otherwise ever has pretty much, which is that it’s uneditable, right? You can’t evolve it. If you and I ordinarily signed a contract, as simple as like, “Tim needs me to cut the grass on his lawn,” and I start doing it, and then you’re like, “You know what? It’s been raining a lot lately. I want you to come a little more often.”
Or, and I say, “Well, it’s true. But when it rains a lot, I have a lot of other customers. I need to charge you a little more when it’s just rained,” right? It’s just the most minor tweak you could possibly imagine in a contract, and we do it every single day and almost all of the contracts that we’re engaged in have some kind of flow like that in them, and you can’t do that with an uneditable contract. So one of the benefits of contracting relationships is that they tend to be evolving relationships in a way that’s beneficial to both parties. And so, you lose some of that capacity in an unattainable contract. Sure, you can invent a new one that’s a variant on it. So it’s not impossible to solve this. And maybe over time, we’ll even see algorithmically developing contracts where the contracts themselves love the capacity for internal evolution.
So I don’t want to say that it’s not solvable, I imagine it probably is solvable, and maybe people are already in fact, now that I say it, it must be that people are already trying to do this, but then it’s not uneditable. And so I guess what strikes me about it is that the smartness of smart contracts needs eventually to extend not only to the enforcement side of it, but also to the flexibility side of it in order to capture some of the benefits of what makes the contract such a powerful tool in our universe. And by the way, it’s not an accident. The contracts are behind partnerships and they’re behind business transactions. And they’re also the central metaphor behind constitutions, which are in some way, the social contract, that’s a contract.
Tim Ferriss: I can’t think of a better place to segue back, as promised, to The Broken Constitution: Lincoln, Slavery, and the Refounding of America. Why did you write this book?
Noah Feldman: Like a lot of us, I have been struggling in the last few years with a question that is actually really old, but maybe it’s to our detriment that we haven’t thought about it as much. Namely, is our whole system, from the Constitution on, fundamentally ruined by having racism and slavery in its DNA from the start? Or can we be a lot more optimistic about our capacities as a country by virtue of progress that we’ve made since our Declaration of Independence was written by a slave holder and our Constitution was drafted primarily by a slave holder at a convention where slave-holding states had a huge amount of influence? And that question has been on the front page of a lot of newspapers, it’s being debated in terms of what we teach our kids in schools, and it’s a fundamental identity question for us as a country and it matters.
And, here I am, I’m a constitutions guy, and I had written a book about James Madison, one of the lead drafters of the Constitution, the lead drafter of the Constitution, really its inventor, who was himself a slave holder. So I’d thought about the question in terms of him. But I hadn’t really thought about that question in terms of what we did when we changed. When we broke it all down, and when we smashed the Constitution and the country in the Civil War. And I think the depth of disagreement and polarization over the last handful of years really also made me think, how bad is our situation relative to the situation then? And I wanted to find out answers to those questions. And that’s why I started doing the research for the book, and the book is my attempt to answer those questions.
Tim Ferriss: Please say more. Can you provide some more context?
Noah Feldman: Yeah, I’ll give you my sort of top of the line answer to the question via a story. And in all of my books, I try to have a story because that’s how I think. I can make sense out of bigger and more abstract ideas better if I do them through the human beings who actually thought them, and Lincoln’s got a hell of a story.
Tim Ferriss: It seems like that’s also how good Abba done taught you, also.
Noah Feldman: It is. You’re absolutely right. That is a very powerful insight. And you can send me the bill for the session and I will gladly pay. That is an excellent and correct insight into my formation and my character. Yeah. So Lincoln’s story is fascinating because Lincoln was a compromiser his whole life. He associated himself with the political party of compromise, which was the Whig party, which was the party that repeatedly saved the United States from breaking into pieces in 1830 and again, in the 1840s, and again, in the 1850s. And every time the country was about to fall apart over the slavery question, really the Whigs saved it. Henry Clay was called the great compromiser, he was the founder of the Whig party, and he was Lincoln’s idol. And he was Lincoln’s God. And even when he was elected president, Lincoln was still trying to compromise.
So, when you go to the Lincoln Memorial, you see two speeches written on the wall on the two sides of Lincoln. One is his Gettysburg Address, and the other is his second inaugural. No one ever mentions Lincoln’s first inaugural. And it turns out there’s a reason for that, which I discovered when I read Lincoln’s first inaugural, which is that the opening sentence says, basically, “I have no interest or intention in ever interfering with slavery. Slavery is in the Constitution, it’s permanent. If you Southerners will just reverse this whole secession business, we will make sure you have your slaves forever.” So that’s the guy’s story running up to the Civil War. And he said that, and then in just a month, shots were fired and the war began and Lincoln realized the Constitution was well and truly broken. And he decided to break the Constitution further in order to make it into something new. And basically what he —
Tim Ferriss: Hard fork.
Noah Feldman: Yeah, hard fork. At the hardest possible fork. Exactly. It doesn’t get harder than that. Right? Sending the troops is the hardest fork you could possibly have. And actually, I mean, to go even further, all of those compromises were founded in the original compromise, which, and we have to be honest about this, was a compromise over slavery. So when people say our Constitution has slavery built into its DNA, they’re not lying. That is actually true. The Constitution would never have been agreed to if it hadn’t included the Three-Fifths Compromise, and if it hadn’t guaranteed the slave trade would continue for at least another 20 years. And if it hadn’t had the Fugitive Slave Clause, which committed free states to returning slaves to their masters. That is to say it implicated the free states in the practice of slavery. So those things are pretty awful and slavery is indistinguishable in that context from the principle of white supremacy.
So when people say that slavery and racism were baked into the original Constitution, that’s just a fact. And that was preserved in these compromises. But what Lincoln did is he broke the Constitution in such a way as to end that, and he did it eventually by emancipation, which he himself believed was unconstitutional when he started the presidency. So this is also something that amazed me. He didn’t just promise it. When one of his generals, immediately once the war began, started freeing the slaves of Confederates who were in his — who came into contact with him in his district, Lincoln ordered him to reverse it. And when he wouldn’t reverse it, Lincoln retracted the order himself and fired the general. So Lincoln couldn’t be clear. And he wrote in a letter to his friend at the same time, “Listen. To take people’s slaves is just dictatorship. I’m not going to do that.”
Fast forward 18 months, he’s realized they’re not going to win the war easily. He’s realized compromise is not going to work. He’s realized that he has no basis for convincing people to fight a war to save the Union if the Union isn’t moral. And he decides to flip the narrative, and to declare that slaves in the Confederacy are hereby free, even though he believed that —
Tim Ferriss: Can I interrupt for a second?
Noah Feldman: Yeah, by all means.
Tim Ferriss: So this is as a non-historian, this may just show how ignorant I am, but was it in the service of morality, or was it to cripple the South or cause so much disorder, so much quilombo that the North could capitalize on it effectively?
Noah Feldman: It’s a great, great question. And the reason it’s such a good question is that the answer is actually not totally clear because Lincoln himself obscured the answer. So Lincoln never said at any point up to the Emancipation Proclamation, and he barely ever said afterwards, that he was doing it because slavery was immoral. He kind of wanted everyone who hated slavery to think that, but he didn’t want to say it. Instead, the rationale that he gave throughout was, this is a war effort to help us win the war. It will create greater disorder, as you’re saying, it will convince slaves to flee their masters, it will send a message to the South that there is no compromise. He said all those things. He said it was necessary to win the war. He did not like to say that it was for moral reasons.
And he was criticized for that at the time, by those who thought he should have been more overt in saying that slavery was fundamentally immoral. And historians are divided about whether he secretly thought that it was actually an important moral thing to do, or whether his real motivation was the one that he stated, namely, this is a war measure to win the war. And in researching it, I actually came to the conclusion that he didn’t want to admit to himself that he was doing it because slavery was immoral, because he believed that as president, he was authorized to win the war, but he wasn’t authorized to impose his moral will on the rest of the country. So he insisted even to himself that he was doing it because he was necessary to win the war. But I think unconsciously by then, he had realized that the old slavery compromise could never work, and needed to be replaced with something totally new. And that, that new thing would be moral.
And this is sort of my punchline of the book, which is that today, we all think that our Constitution is a moral blueprint. We think it’s a kind of higher law. We may not always follow it, and we may screw it up, but we aspire to following it, right? We had segregation, and now we say, “That was unconstitutional. It was unjust. It was wrong. We didn’t live up to our highest aspirations.” Nobody thought that before the Civil War. Nobody thought the Constitution was moral. The people who supported the Constitution knew it was a compromise with slavery. And a lot of them knew slavery was immoral. And so the Constitution was not a moral document. There might be morals; they were apart from the Constitution and higher than the Constitution.
So this was a core transformative moment in our thinking about what it is to govern ourselves, because we shifted from, “We have to do some practical things to govern ourselves,” to thinking, “No, we should also live morally.” And to me, that’s like fundamentally important for the question of how we want to live together in the future. Because we’re not always going to agree on what the right way to live is. We’re not always going to agree on what’s moral. But if we all agree that we should be trying to live our lives to make the world somewhat better than it is right now, we actually have something that we can look forward to coming together on. It is a mechanism for compromise. And it’s a mechanism for overcoming polarization by saying, “Okay, we don’t agree on what to do right now, but do we agree on where we want to be? Do we agree on that we want to make the country a better, fairer, and more just place?”
And to me, that is the mechanism we can use to compromise as a country. And I think it’s also very practical, usable by anybody who’s trying to work out the future by looking at the past. You ask yourself, how can I make it better? And the answer is, usually by aspiring to do that, and then trying to reach agreement on some concrete steps that we could take to try to make it better.
Tim Ferriss: This makes me think of a story I was told sometime ago, probably 10 years ago. And I can’t remember the professor’s name, but it was a story told to me by a Stanford professor who at Stanford was allowed to create an experiment with new classes of pretty much any type. So you could just —
Noah Feldman: Cool.
Tim Ferriss: — say, “I’m going to teach a class on something I just made up during my nap, or after my nap, and we’re going to give it a shot.” And the class was intended to be focused on some aspect of world peace. All right. And students show up, so far, so good. Lots of students show up for this class, register for this class. And then it turns out, oh, we have a problem. Nobody can agree on what world peace means. And so you have people from the Middle East on polar opposite ends of the spectrum. You have people from all over, and what this particular professor ended up doing was asking, “Okay, instead of defining world peace, can we agree upon and define some of the precursors, or constituent pieces of what world peace might look like?”
And they were able to do that. So they came up with certain bits and pieces of this puzzle, which they agreed upon. And that’s what they ended up spending the semester focused on. And I bring that up in part, because I’d love for you to expand on this word compromise, because I think when a lot of people hear that word, and sometimes I’m one of those people. Particularly someone who, let’s just say, Lincoln looks up to this other figure, idolizes him because he’s the master of compromise. Now, there are people who will hear that and say, “Well, that sounds like no firm position,” right? You’re the master of waffling. And it has a negative connotation. How do you think of this word, compromise?
Noah Feldman: I love that question. And I love the story too. I never heard that before. That’s totally fascinating. So here’s how I think about it. I think you can divide compromise into two kinds of compromise. One of which is waffling, and one of which is, let’s call it better than waffling. Let’s call it real aspiration. So the kind of compromise that is waffling, and sometimes you need this kind of compromise in life, is where there’s a zero sum thing that you and somebody else are arguing about, but you know that you need to cooperate in order to keep your part of that zero sum thing, right? Two partners in a business, each owns 50 percent of the shares. You can’t have 150 percent of the shares just by definition. That’s just not the way it works. And they have to get along with each other, and they don’t always agree on the right course of conduct for the business.
So, in that situation, you actually need some degree of, call it flexibility, in agreeing on what you’re going to do, which means that sometimes you’re going to do something you think is wrong, right? Your partner is saying, “We should do this.” And you’re like, “Look, dude, I know you’re wrong. We’ve been doing this for a long time. I know when I’m right. I’m right this time, you’re wrong.” Your friend is like, “Nope, it’s the other way around. I know that I’m right. And this is one of the cases where you’re wrong.” If you can’t waffle, that is, if you can’t be flexible and say, “Okay, we’re going to do it your way this time, even though I know it’s wrong,” you’re just going to fail. You’re going to break up. So that’s the kind of compromise that was happening before the Civil War.
That was the waffling compromise. And you can see that it was lousy because it involved a lousy thing, namely slavery. But without it, they wouldn’t have been able to build a Union. The United States would not have gone from a tiny little I-95 nation on the East Coast, Eastern Seaboard country, to a continental power without this kind of agreement or compromise. Now, there were a few people who were like, “We don’t need to be that. Let’s just stay on the Acela Corridor, and that’s plenty for us.” But most people were like, “No, we want to actually expand this thing,” and to do that, you had to have that kind of compromise. But here’s the other kind of compromise. And this is the one I want to call real aspiration. That’s when we actually do look at each other and say, “We agree on a broader objective that involves making the world actively better. And we both want to achieve that objective.”
Let’s say in the case of the Constitution, it’s equality, right? Let’s say in the case of a business, it’s transforming some sphere or domain of interests. Let’s say it’s in psychedelic research, it’s expanding the capacities of human consciousness and enabling people to be healed better than they are now through that objective. These are big grant objectives. They’re stated at a very high degree of generality because they have to be, but they’re really important. And they’re hugely important. And then when we say, “Listen, I’m going to go along with what you want to do in this situation, because I see us as involved in a collective experiment to try to get us to this end, and we both want that same end. And I’m going to try to do it your way now, and you’re going to try to do it my way the next time. And we are going to do a little bit of compromise.”
But it’s not because, I won’t be saying, “I know you’re wrong,” I’ll be saying, “I think this other route might be faster.” It’s like we’re both hiking up the mountain, and there the path forks, we know both forks go up the mountain, and we’re trying to figure out which one will get us there faster or better. And so I go with you, I still think my way was better, but I know we’re still going up the mountain at that same objective. And that seems to me to be the good kind of compromise that isn’t just waffling.
Tim Ferriss: Hmm. Are there any alive or dead, any figures who stand out to you as particularly good at crafting productive compromise, who we haven’t talked about already?
Noah Feldman: I mean, we mentioned Nelson Mandela in passing. He’s an example of somebody who was able to convince all South Africans that they actually had a common objective of living together, even though just a short time before, he had been imprisoned and a good part of the country thought their objective was to keep him and people like him subordinated. So he’s a cliched example, but there’s a reason that he’s a cliched example. It’s because he really did have that kind of a transformative capacity to work together and compromise. I think in the United States, Martin Luther King Jr. is another great example of someone who was capable of compromise to achieve those sorts of things. And he has got a nice parallel in Malcolm X, who was not so inclined to compromise with injustice. And they each show you the value of those two different kinds of approaches. I think there were a really interesting compare and contrast for that reason.
They’re each seeking equality. They’re each seeking justice. One is saying, “We should do this by a collective undertaking of a higher objective,” and the other is saying, “No. We should do this by — the people who are doing bad things should stop doing those bad things. And if not, I will do everything I can. All means necessary are appropriate to getting us there.” And I have a great respect for each approach. Those stand out strongly in my mind as forms of the productive, aspirational type of compromise.
Tim Ferriss: Who is Oliver Wendell Holmes Jr. and why are you interested in him?
Noah Feldman: Wow, great question. So Oliver Wendell Holmes Jr. was most famous as a Supreme Court justice who served for a long time between the very, very early years of the 20th century, and into the very early 1930s. Before that, he was the son of a nationally famous writer who volunteered the day the Civil War began when he was in college, to go to war, got shot in his very first battle. Luckily for him got shot in the front and not in the butt and went back to Massachusetts where he was already a bit of a celebrity because his father was famous and he was very tall and good-looking, and he was feted in every salon in Massachusetts as this hero of the Civil War, which he really liked. He really liked being a hero. He then went back out to battle, got shot a second time, and he was so scared of getting shot that he had actually filled his flask with poison. But his sergeant knew he had done this, and emptied it, and refilled it with gin.
And so when he was shot the second time, he drank the flask thinking that he was going to commit suicide because he didn’t want to have his legs sawn off, but he just got super drunk and the sergeant saved his life. He then went to law school, set himself up as a young lawyer, and actually turned to history to try to understand the future. And when talking about using history, understand the past, I realized just in this moment, I never thought of it before, that Holmes is actually an amazing example of this. And he wrote a little book called The Common Law, which was a total rereading of the history of the law, basically the law of accidents and contracts. And it was a radical rereading of the history, and his central argument was that as he put it, the life of the law has not been logic, it has been experience.
So his idea was that law presents itself as all logical all the time, and it’s bullshit. Law is actually a set of institutions by which we constantly update, and upgrade, and up-level our society, as we’re doing it on the basis of things we’ve screwed up and in the hopes of doing it better in the future.
And in this, he was an archetypal pragmatist, and he actually hung out with a group of people — they called themselves the metaphysical club — who were all pragmatists and they were famous pragmatists, William James, a hugely famous psychologist. Also very rightly famous as one of the first people to seriously expand his consciousness, using drugs and writing, write it down. He was constantly self experimenting. He took every drug that was known to him and he was a pragmatist and a central figure and pragmatism because he thought that life was constantly about experimenting and Holmes agreed with him. C.S. Peirce, another contemporary of theirs who formalized pragmatism into a logical system, Henry Adams, Holmes hung out with these guys. He was the best looking. He definitely slept with the girlfriends of several of the others.
There are some historians who speculate that he slept with some of the other members of the club, although that’s purely at the level of speculation. So Holmes was very intellectually attracted to this idea of societal pragmatism, seen as experiment. To him pragmatism was seeing that as he put it later in his life, it is an experiment as all life is an experiment. That’s his real tagline.
Now, this dude who was an elite, elite, elite Yankee, they called him the Yankee from Olympus. It was what we would call today a High WASP. He got old, he got up to the Supreme Court, and he found himself basically forgotten. Time had passed him by. He still dressed like it was the Civil War. He wore a huge cavalry mustache, a military mustache from the Civil War. And he had an amazing second life because when he was in his eighties, he was discovered by a group of young, progressive lawyers, chief among them Felix Frankfurter, who went on to become a professor at Harvard law school and then a Supreme Court justice himself.
And they were looking for a poster child for their progressivism. And they could have picked Louis Brandeis, who was a rough contemporary of Holmes. Also a genius, also a Supreme Court justice, but Brandeis was Jewish and was actually himself a progressive. And they wanted a better poster child. And they hit on Holmes and they were able to do it by getting Holmes to basically say something that he believed, which was that the government shouldn’t stop you from experimenting. The Supreme Court shouldn’t block experiments. So he looked at progressivism and he was like, “You want to do a lot of experiments? I’m not sure any of it’s going to work. In fact, I’m cynical and I don’t really believe it will work, but you should be able to do it.” Whereas the conservative members of the Supreme Court at the time were like, “No, if you’re going to experiment with progressive laws that limit hours that gives you a minimum wage, we’re going to strike those down,” and Holmes, because he believed in experimentation, took the view like, “No, we’re not going to strike those down.”
So he wasn’t really a progressive, but they borrowed him for that purpose. And they made him a mega celebrity and he loved it. And as a consequence, he went down in history as one of the greatest justices of all time, mostly because he was always saying, “Look, let the experiment run. Let the experiment run.” And that was his core judicial philosophy. It also, last thought on this, it also made him a pioneer of free speech because you can’t experiment if you can’t share your ideas. So the core idea is we need to have free speech so that we can keep experimenting.
Tim Ferriss: I’m so glad that I asked about the Yankee from Olympus. That was incredible. How did you first get a bee in your bonnet about Oliver Wendell Holmes Jr.?
Noah Feldman: You know, when I went to law school, I went to Yale law school. No one ever talked about Holmes. It was like, I mean, I wouldn’t say he didn’t exist, but no one was interested in him. Then I came to teach at Harvard law school.
Tim Ferriss: Hold on. Pause one second, how could you not be interested in this person? Why is that? That seems so odd to me.
Noah Feldman: I’ll be honest. He wasn’t presented at New Haven, Connecticut. He just wasn’t presented as someone we really needed to care about that much. He was kind of old-fashioned and I should add Holmes had plenty of non-admirable characteristics. I mean, he thought he was so cool. He thought he was so awesome. And he of course had all the prejudices of his day. So he supported eugenics and in one Supreme Court decision, notorious decision called Buck Against Bell where the state of Virginia was forcibly sterilizing people whom it determined to be quote unquote “mentally inferior.” We would say developmentally challenged. And though it’s not even clear they were, Holmes upheld that practice. And he used the following line: “Three generations of imbeciles are enough.” I mean, horrible stuff. So there was plenty not to like, but somehow that was what was always emphasized.
And then I came to Harvard, his portrait is everywhere and it’s like, he looms over the place in a meaningful way. And I said, all right, I’m going to revisit. And I read a book that actually I love called The Metaphysical Club by a person called Louis Menand. Who’s an amazing, amazing writer. He’s a professor at Harvard in the English department. Book won the Pulitzer Prize. It’s an amazing, amazing book, The Metaphysical Club. And it’s a group biography of those people I was just describing. And one of the chapters is about Holmes and it’s a totally gripping chapter.
And then I was like, okay, I’m going to give this guy some deeper thought. and as I teach constitutional law and the first amendment, which are two of the classes that I teach, he just emerges as this really fascinating central figure. And that got me much more deeply fascinated by him. Now I have not yet — he’s been a minor character in a book that I wrote — I have not sat down to write a book just about him and partly it’s because I’m scared to. Felix Frankfurter, when he was a professor and then Supreme Court justice, he assigned his favorite student to write the biography of Holmes.
Tim Ferriss: That’s a hell of an assignment! My God.
Noah Feldman: The guy couldn’t do it. He couldn’t do it. One nervous breakdown and then he died young.
Tim Ferriss: Good Lord! What happened?
Noah Feldman: He was a brilliant, brilliant scholar.
Tim Ferriss: Why did it break him? It’s not like Fermat’s last theorem. I mean, it’s writing a biography, but it was it just because of with the good, you get the bad and equal intensity. I mean, what’s —
Noah Feldman: That’s a great question. And I don’t really know. I think the grand juror was so significant. The life was so powerful and long that it just seemed, I think it just seemed overwhelming and it doesn’t. I mean, he’s just a human being. He lived a life, he did a lot of stuff, but he spent a lot of time as a judge and frankly judges lives are lived. What’s interesting about a judge’s life is primarily what they write. You know, it’s not primarily what they do every day.
I mean, Holmes got up, he read all day, then he did some writing. I mean, those were his main life activities. So it’s not like the book would be so action packed that you couldn’t write it. And there have been lots of other biographies of Holmes. So over the years, I think it was probably just that Frankfurter was so worshipful of Holmes and he was telling his student to write something worshipful, and you can’t write a good biography if it’s worshipful; it’s going to be horribly boring. So I haven’t done it. But I will write something about Holmes at some point. I’m sure.
Tim Ferriss: Well, another option, Walter Isaacson has been on the podcast a few times. We could go have some drinks with Walter and try to get a bee in his bonnet.
Noah Feldman: That’s a good idea, yeah. That’s a really good idea. That’s a much better idea.
Tim Ferriss: He’s not that far from Austin these days. And I have a question. This may just be a dead end, but I’ve always wanted to ask and I’ve never done the homework myself. Did the Iroquois Confederacy have any impact on our Constitution? Because I’ve heard that as a passing comment before, and I never knew if there was any truth to it.
Noah Feldman: There is something to it, for sure. So the way I think of it is is the following. And I should say, I’m not, I’m not an expert on the Iroquois Confederacy at all, but I’m really interested in it. So the Iroquois Confederacy was a group of tribes, Native American, American Indian tribes, who realized a lot earlier than a lot of other tribes did, that if they were going to a) defeat other tribes and b) stand up against the rising tide of European settlement, they could not do it alone. They had to group themselves together into a broader Alliance with some degree of collective governance. Now they didn’t have a full state. And so it wasn’t as though they had like a central governor who could govern or a central legislature, but they did have a series of decision-making methods through the consultation groups of the individual tribes and the individual bands up to this level of the Confederacy.
And the founders knew about the Iroquois Confederacy because it was right there interacting with them and they dealt with it. And so when James Madison was trying to work out the ideas that became Federalism, which is after all a similar idea, the idea that you should have a Confederation, you should have shared decision-making on some big level things while maintaining your individual sovereignty over some smaller level things. He was interested in every Confederacy he could think of. And in his notes on Confederacies that he created for himself, he went all the way back to the ancient world and looked at some Greek and Roman predecessors. He was particularly interested in one truly obscure thing called the Amphictyonic League, which he cared about a lot. I just love saying Amphictyonic. He was also interested in modern Confederacy. So he looked into Confederation. So he was really interested in Holland, for example, which had a person who sort of functioned as a semi-king, he was called the Stadtholder, but also was organized into these individual subunits.
And he didn’t write about the Iroquois Confederacy in those notes because there weren’t very many books written about it. And he was writing notes on the books he was reading, his notes were literally like his reading notes, but he was certainly aware of the Iroquois Confederacy as were the other framers. And so in that milieu, when they were coming up with Federalism, they had a practical example of a version of it directly facing them. So in that sense, I think it is fair to say that it was part of the thought world that they were engaged with.
Tim Ferriss: Thank you. What are you most excited about right now? Looking forward over the next six to 12 months, you could pick any timeframe really, but what are you, what are you excited about?
Noah Feldman: I’m really excited about some innovations in governance, in big tech that I’ve had a chance to be a little bit involved in that are experiments, we were just talking experiments and how, if you want to try to make the world any better than it currently is, you have to try stuff out and see if it’s going to work or not work. And I’m really interested and excited because I want to see if these experiments are going to work and if they do how they work and if they don’t work, I want to see how they don’t work. So the one that is directly in front of my eyes right now is the Facebook Oversight Board where sometimes people call the Supreme Court of Facebook, which launched not quite a year ago and which I was directly involved in launching and coming up with.
And which is based on the idea that there’s a series of decisions that are too important to be made by the leadership of a platform that has well over two billion users, pushing on three billion users. And so the core idea behind this Oversight Board was that start with an identifiable set of decisions about what content Facebook allows on its site and what content it takes down and what people it allows on its site and what people it deplatforms.
So start with that narrowly defined problem. It’s not the only problem. Facebook faces by any stretch of the imagination, but it’s an important problem and take ultimate decision power about that away from the company and put it in an independent group of people who are paid by an independent trust. The money came from Facebook, but it goes into an, it went into an independent trust, a couple hundred million dollars, went to this independent trust to administer and run this Oversight Board and give them genuine oversight by Facebook promising that it will do what it tells them to do and running the experiment to see if this group can do a better job than Facebook in making the decisions, see if it can hold Facebook to account and try to push Facebook to make its own decisions in a more regularized rule-based way and see if it’s possible to show the world.
In fact, if it is working that there’s a benefit for private companies to do what governments have long done, namely have some real separation of powers, right? Namely say that there are some things that we just don’t want the President of Congress to decide, we don’t want the President of Congress to decide what speech is allowed and what speech isn’t allowed, because we know they would follow their interests. So we have an independent Supreme Court that has, it’s not that it doesn’t have interests, but has a different set of interests and it’s more independent.
And historically we haven’t really seen companies doing this. Companies are seen as serving the interests of their shareholders and that interest has traditionally been seen as making a profit for their shareholders while not violating the law. Increasingly we now see in our world, that’s not good enough, right? We want companies to do more than just make money and not break the law. We want them to actually contribute to the public good. So this is a humongous experiment and it’s still unclear if it will work and how well it will work, but I’m really excited to see how it plays out.
Tim Ferriss: How will you know if the experiment has worked, what would be indications, evidence to point to it working?
Noah Feldman: If the Oversight Board rubber stamps, everything that Facebook does, it’s not working. It needs to make independent decisions that reverse Facebook. If it makes decisions, then Facebook doesn’t implement them, it’s not working. Facebook has to actually implement decisions that Facebook doesn’t like.
If the public looks at this entity two years from now and says, “This is BS. You know, these people aren’t really independent. Their decision making isn’t really making the world better,” Then it’s not working. But on the other hand, if people say, “Oh, that, actually, was an independent decision, and it’s not what Facebook necessarily wanted,” then that would be a marker of success. So we had an interim marker of success when the Facebook Oversight Board weighed in on the decision to deplatform Donald Trump, it ultimately said that Facebook had done it wrong, but that if they did it again and did it right, they would be permitted to keep him off the platform for some period of time.
And that got reported on the front page of every newspaper. And for the most part, the press treated it as an independent decision, which I think in practice, it actually was. And that was, I would say, a first step to success. I wouldn’t call it success at the end state, by any stretch of the imagination, but a first step towards success that was meaningful because the world treated it as independent and it was independent and it wasn’t just a rubber stamp, but it was also not an, of course, a lot of people would be very angry if they’d made Facebook put Donald Trump back on, right? So inevitably people are going to be angry no matter what decision they made. And I think the Board kind of split the difference by saying, “We’re going to tell you you did it wrong, Facebook, but we’re also going to tell you that if you do it right, you’re allowed to keep them off the platform.”
So that was a kind of a compromise. You could debate whether it was the kind of compromise we were talking about if the best kind or the not best kind. So those are the kinds of landmarks that I think will be testable. And one last thing, if other tech companies think about their own kinds of novel governance solutions, which would not necessarily look like the Oversight Board, but if they adopted other kinds of creative outside the box solutions that share power to show the public that they are trying to do better than they’re doing, then that would be yet another marker of the success of this experiment. Because, you know, there’s no success like — imitation is the sincerest form of flattery because imitation shows you that other people think something is working.
Tim Ferriss: Let’s go back to the invasion of Iraq. You mentioned that not to compare the two things, but I will. You mentioned that there were best clearly visible, or I should say worst practices clearly visible, right? If you want to invade a country, here are the five things you shouldn’t do. As you’re looking at the Supreme Court of X, that could be the Supreme Court of Facebook, could be the Supreme Court of Google, and that’s, some people could argue the Supreme Court of any of these companies should actually stand outside of these companies completely. But —
Noah Feldman: It should.
Tim Ferriss: Okay. So what would be foreseeable common mistakes that you think people should pay attention to avoiding when trying to create these types of boards? For instance, just what comes to mind is, and I think about this in the realm of science as well, potential conflicts of interest, right? So if the Board of Facebook or the Supreme Court of Facebook is comprised of members who are incentivized with Facebook stock, how do we think about that? Right?
Noah Feldman: That would be a disaster. That’s a great example of what not to do. So you do need to have genuine independence. And that means compensation has to be from some external entity. It means their reappointment to the Board when their term is up, which I think under the Facebook rules that can happen once, can’t be anything to do with the company. So it can’t be that the company has any say in that. So that’s another one, an important one. Yet another thing — mistake — to avoid is giving the new entity, the Court or the Board or whatever it is, giving it so much power up front that it could make decisions that would break the company, right?
I mean, because if you want companies to be able to build on this and take the decisions seriously, they have to be making decisions that are within the realm of what they could do without portraying the duty that they owe to their shareholders.
So you need to, it’s kind of, it sounds contradictory, but you have to be modest enough in defining the overall goals that the Board won’t find itself telling the company to do something if the company just can’t do, you know, fundamentally can’t do. And I’ve learned the hard way that in tech sometimes saying you have modest goals, doesn’t convince everybody. Sometimes people want to hear that your solution will solve every problem. And just like I said earlier, the Constitution can’t solve every problem. New governance solutions can’t solve every problem, but they can address some of the problems. Another mistake would be if these entities were making global decisions, but were only made up of Americans. If you’re making global decisions, you need representation from all over the globe. You need people from all over. If you’re making decisions for the US, you could be US-focused. If you’re making decisions for Britain, you could be Britain-focused or, you know, and so forth. But if it’s going to be truly a global decision-making body, it needs to be global in its orientation.
And the last thing is you need to actually have some values stated in advance that you’re going to try to pursue, and you need to be transparent about how your decisions reach those. I think the biggest, one of the biggest mistakes you could make would be to make decisions behind closed doors and not explain why you’re making them. I think in this day and age, we’re all cynical. We all know how the world works. And so we need to be able to hear you say, “This is why I’m making the decision. Here’s why I might be wrong, but here’s why I made the decision that I made.” I think transparency drives transparency, and giving reasons drives legitimacy. Non-transparency, or failure to give reasons, detract from legitimacy.
Tim Ferriss: Legitimacy is sort of the currency of so many different domains, whether it’s a blockchain, whether it’s constitution, whether it’s the Supreme Court of Facebook, and you talked about this, this potentially global representation for global business, it makes me think of the potential of, say, the United Nations of Facebook. And then you have these parallel structures that on some level mimic these outside organizations within these larger companies. And on the point of transparency are the decisions of just for simplicity again, the Supreme Court of Facebook made public, regardless of if, for how the company ends up heating that advice.
Noah Feldman: Yes. The Oversight Board issues, those decisions on its website, it makes them public. And then it tells Facebook to implement them. And if Facebook doesn’t implement them right, I expect that the Oversight Board will do what it has the power to do, which is to call out Facebook publicly on that. You know they can say to Facebook privately first, “Hey, do it. We said do it.” But then if Facebook doesn’t do it, they can say publicly, “You didn’t do it.” And ultimately that’s where the power of the external entity lies, right?
I mean, its power is that the company has promised to do what they’ve told them to do. And if they don’t, then they’re lying and the Board will be able to draw attention to that. So the baseline idea is that it’s in the interest of companies to be seen as doing what they’ve promised.
And when you’re a company like Facebook, that has tremendous challenges in terms of how people believe it operates. There’s only one way out of that. And that way is to consistently demonstrate over an extended period of time that you are following the rules, that you are disclosing, that you are transparent and, over time — it will take time, no question — you can rebuild a reputation for transparency, honesty, openness, and legitimacy. And no one is disputing that, that is a long road, but the only way to make a long journey is to put one foot in front of the other and start making the damn journey. And so I see the Oversight Board is an experiment that’s designed to try to push the company in that direction and enable the company to go in that direction. It can’t force it, it opens the possibility of that. And again, that’s why I call it an experiment.
Tim Ferriss: Are there any other experiments — it could be outside of this particular example — any other experiments that you’re looking forward to, whether you are a part of them or they are outside of yourself?
Noah Feldman: Well, an experiment that I wouldn’t say exactly that I’m looking forward to it, but I’m watching it with constant fascination, I think a lot of us are, is how are we as a world going to try to come out of the COVID pandemic? I mean, that’s an experiment in real time and real human lives are at stake and a huge amount turns on how well we do it, not just in the US, or in the developed, you know, richer countries, but everywhere because, I mean, a virus does not know borders and a virus that spreads in one area of the world unchecked is going to evolve because it’s just a principle, basic principle of evolutionary biology that if you have a larger and larger quantum of the virus circulating the probability of it, mutating in such a way as to become more dangerous increases.
So it’s in everybody’s interest for there to be as little COVID out there as there can possibly be. And that means we need world coordination of a kind that we have not yet fully seen. We need sharing of resources in a way that we have seen the beginnings of, but we have not yet fully seen, and we all need that, we need that desperately. So this is a kind of grand global experiment in can we work together? And in a sense, the climate change challenge is similar and there we do see results, but we don’t necessarily see the results quite as quickly as we’re seeing it in the context of COVID.
COVID, we’re seeing it, very, very much in, in real time. And you know, COVID is also, I mean, climate is ultimately existential for us as a species COVID is probably not existential for us as a species, but it is a pretty damn big problem. And real human beings are losing their lives. And it has tremendous negative consequences and drag on everything we do as this as not only as a country, but as a society and as a globe. And so I think we’re all watching that with like total fascination and attention and trying to figure it out in real time, as it goes.
Tim Ferriss: Noah, you’re a hell of a guy. I am so constantly, every time we chat, impressed with the breadth and depth of your intellectual curiosity and the way that you’re able to tie disparate times, places, people together with pattern recognition, it’s really astonishing and really impressive. And I know that you have good hardware, but it’s also a trained skill. So I want to just give you a bow for that because it’s very, very impressive and it’s a valuable skill that contributes to the collective.
Is there anything else you would like to say, ask of my audience, call attention to, anything at all before we wrap up this conversation, we’ll hopefully do a round two at some point, because I mean, we didn’t talk about free speech. Really. We did not talk about your new class and thoughts on ethics and power. I didn’t get to dive into AI. There are a million other things we could get into, but for this conversation, I didn’t get to ask you why The Metaphysical Club has metaphysical in the title, which is going to bother me, but I’ll figure it out. But for this conversation, is there anything you would like to add as closing comments, request to the audience, anything at all?
Noah Feldman: Well, first of all, back at you, Tim, in your work, and in your podcast, you’re literally interested in everything. I mean, it’s such a fascinating podcast to listen to because you never know, from week to week, what extraordinary topic it will explore. And always there’ll be something actionable that comes out of it, but you also know that it would be associative. And in talking to you every time I’ve talked to you, and it’s certainly in this conversation too, you’re doing it in real time. You know, you’re coming up with connections and ideas and putting it together. So I’m super grateful for that. And I benefit from it, like all your listeners do. And I loved talking to you in this conversation about that.
I’ll just say for listeners, I spent a good amount of my time trying to produce ideas and put them out there. And so I’d love to reach you guys, and I’d love to have you tell me what you’re interested in, because I see it as a dialogue, a huge number of the ideas that I have for things to write about and think about come from, directly, from things that people write to me and tell me.
So you can certainly read my columns on Bloomberg or listen to the Deep Background podcast, or read my books, if you happen to come across them. I also have a website, noah-feldman.com, where you can sign up if you want to hear from me on an intermittent basis, I promise not to spam you or irritate you, but primarily it gives you the opportunity to communicate with me. And that is of tremendous, tremendous value in education for me. So I’d want to just say that to listeners and I love to talk to you, all of you and engage with you. And I just want to express deep gratitude, Tim, to you for all the work that you do. And for giving me a chance to chat with you.
Tim Ferriss: What a gift to have this time with you, Noah, thank you so much. Noah Feldman ladies and gentlemen on Twitter @NoahRFeldman, as he mentioned, noah-feldman.com. We will link to everything in the show notes, as usual at tim.blog/podcast.
The new book, check it out is The Broken Constitution, subtitle, Lincoln, Slavery, and the Refounding of America. What fun to be able to explore so many topics. I can’t wait for the next time we get to hang in person. And to everybody listening, until next time, be safe. Experiment well; look for the good kinds of compromise when the opportunities arise. And thanks for tuning in.
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