Transcripts For CSPAN2 Book Discussion On Our Republican Constitution 20160507

We are securing the liberty and sovereignty of we the people with a foreword by george will. Let me also welcome our cspan audience, as well as those watching through catos live streaming. Released just two days ago by harper collins, this this book is sure to receive wide attention and it deserves so. I just learned its available at costco, so people who are watching this on cspan can run right out and pick up a copy of the book. Its likely to receive wide attention, as i said, because it speaks in a fundamental way to the political divisions we see in america today. Divisions about healthcare, gun control, affirmative action, immigration and so much more. Its about the far more fundamental division we see in our understanding of our basic law of the constitution and what it authorizes. If we want to better understand and appreciate the surface division, thats where we have to turn because thats where they are grounded. Just to be clear, in speaking about the republican constitution and the democratic constitution, professor barnett is not making partisan points, rather as the books subtitle suggest he is alluding to two fundamentally different understandings of the constitutions first three words we the people. Profoundly different conceptions that have deep roots in our constitutional history and farreaching implications for our political order. Once we understand those basic differences, we we will have a far better grasp of the immediate issues that so divide us as a nation today. For that, let me introduce professor barnett who will speak about the book for about 30 minutes. We will then turn to Professor Robert who will offer commentary of 15 minutes or so. I will introduce professor personnel just before he speaks. Professor barnett will then respond and have a brief interchange between the two. Then we will turn to you in the audience and we will have lunch ups dares in the George M Yeager Conference Center. The book is available, by the way, at a substantial discount outside our auditorium. The professor will be glad to sign the book for you. Professor barnett is the waterhouse professor of legal theory at the georgetown center. He teaches constitutional law and contracts. He is also a senior fellow here at the cato institute. After graduating from Northwestern University and the Harvard Law School, he tried many felony cases as a prosecutor in the cook county states atty. Office in chicago. In 2004, he argued the medical marijuana case before the u. S. Supreme court and in 2011 he represented the National Federation of independent business and its constitutional challenge to the Affordable Care act. He has been a visiting professor at the Harvard Law School, university of pennsylvania, northwestern and the university of sam frisco in guatemala. He delivered speech at the university of tokyo and in kyoto. In 2008, he was ordered to Google Guggenheim scholarship in his studies. His applications include more than 100 articles and reviews as well is nine books including restoring the lost constitution, the presumption of liberty, published by princeton in 2005 and legal casebooks on the constitution and on contract law his book, the structure of liberty and the rule of law published by oxford in 1998 was published also in japanese. Prof. Barnetts Opinion Pieces appear regularly in the wall street journal and elsewhere. He appears frequently in Public Affairs meetings. In 2007 he was featured in the documentary, the trials of law school and in search of the second amendment. He portrayed and assisted prosecutor in the 2010 independent film in alienable. He is here to discuss his new book, our republican constitution, securing, securing the liberty and sovereignty of we the people. Please welcome professor Randy Barnett. [applause]. Thank you roger and thanks to the cato institute. Thank you for hosting this wonderful event. I look forward to the commentary that we are about to receive and the discussion we will have afterward. In 1789, James Madison had a problem. After living for ten years under the articles of Confederation Madison had worked tirelessly behind the scenes to bring about a constitution to devise a new constitution. In september of 1786, he participated in a preliminary convention. He had enough key players to continue the Constitutional Convention in philadelphia. Now the pressure was on the 36yearold madison. Before journeying to philadelphia, he crammed for the grandmother in like a student for his exams, from a chest full of books it had been supplied to him by his friend and mentor thomas jefferson. He had a truly fundamental problem problem to solve. Like many others, he had had concluded that the american regime, governed by the articles of federation was grossly inadequate and contrary to what the virginia declaration of rights referred to as the Common Benefit protection and security of the people. Why was this happening . Why have the republicanism of the founding generation failed themselves . For the previous 13 years, the people of the United States have been governed by 13 separate entities. State governments under the articles of confederation were thought to be republican. The founders had thrown off rule by the heirs view in favor of the rule of the democratic many. Under aristocracy, if the many are screwed by the few, the democratic or Republican Attorney jeff was premised on the belief that the people wouldnt screw themselves. This is cook county. This is how we talk in cook county. This republican theory that people wouldnt screw themselves had unexpectedly proven to be false. State legislatures undermined the rights of creditors and prosperity which required a credit market that can rely on the obligation of contracts to collect on debtors. States also erected a debilitating number of trade barriers to protect their own businesses to protect them from competing firms in other states. The result was an economic downturn, a really great depression. Republican government as it was then conceived was clearly not working for the Common Benefit and security of the people, but why not . To answer this question, in april 1787, largely seven, largely for his own benefit, madison compose an essay that he called the vices of the political system of the United States. It was not an essay for publication. It was an essay for his own benefit. It was a working paper for him to figure out what the game plan needed to be for the upcoming Constitutional Convention in philadelphia. So we have this document, its a remarkable document because it shows how he was sorting through this problem, what was the problem . In vices, madison identify the source of the problem in what he called the injustice of the law to this day. First of all, the problem was that the laws were unjust. The causes of this evil, he contended, could be traced to the representative body. Ultimately he said to the people themselves. This he wrote called into question the fundamental principle of republican government that the majority who rule in such governments are the safest guardians both of the public good and of private rights. Madison concluded, we must be far more realistic about popular majorities. All civilized societies are divided into different interests and factions, rich or poor, merchants or manufacturers, members of different religious, followers of different leaders, owners owners of different kind of property, et cetera. In a democracy, the debtors outnumber the creditors and the poor outnumber the rich. The larger group can simply outvote the smaller one. The majority however, he continued ultimately give the law. Whenever an impairment interest or common passion unites unites majority, what is to constrain them from unjust violations of the minority. Or of individuals. To illustrate this problem, madison post the following experiment, placed three individuals in a situation where the interest of each depends on the voice of the others. If two of them have an interest opposed to the rights of the third. Will the latter be secure . The prudence of every man will shun the danger. Likewise he asked, will 2000 in a like situation be less likely to encroach upon the rights of the 1000 . In short, under the democratic version of republicanism of the day, there is nothing stopping a majority of the policy for engaging in activity at the expense of the minority. He concluded that what was needed was nothing less than a new republican form of government. It would address the weakness of state governments while preserving popular sovereignty. As he put it, to secure the public good and private rights against the danger of such a faction faction and at the same time preserve the spirit and form a popular government is than the great object of which our inquiries are directed. Madison was not alone in locating the ills facing the nation. At the philadelphia convention, our first attorney general observes that the general object of the convention was to provide a cure for the evils under which the u. S. Labored. He said, in tracing these evils to their origin, every their origin, every man had founded in the turbulence and follies of democracy. Eldridge jerry from massachusetts stated, the evils we experienced flow from the excess of democracy. Roger sherman of connecticut contended that people should have as little to do as may be about the government. Governor morris from pennsylvania noted that every man of observation had seen in the democratic branches precipitation in congress, changeable mess. In every department, excessive against personal liberty, private property and personal safety. Even those who had remained more amendable to democracy like george mason admitted that we had been to democratic informing state government. At the conclusion of the philadelphia convention, citizens gathered outside Independence Hall to learn just what had been produced behind closed doors. The convention had been governed entirely in secret. It is said that as Benjamin Franklin left the building, a woman in the crowd called out to him what have we got a republic or a monarchy he is said to have responded a republic madam, if you can keep it. While while the new form of government divides devised in philadelphia was not a monarchy, either was it democratic. He still called at a republic. Thats because the meaning of that term, republic or republican had just been changed by the men inside the building from which franklin was leading. Republican constitution was no longer a democrat constitution, if it ever truly had been. In my book, our republican constitution, i explain how these two fundamentally divergent views of the constitution divide us even today. I call these diversion the democratic constitution and the republican constitution, but i dont intend these labels to be partisan. There are political conservatives who, to some aspect of democratic and vice versa. Many people flip between based on the results they like on a particular issue. I contend that what divides those who adhere to a democratic constitution from those who favor a republican constitution are two fundamentally inconsistently visions of we the people, the first first three words of the constitution that lead to two radically different conceptions of sovereignty. Those who adhere to a democratic constitution hold a different conception of we the people and popular sovereignty than those who adhere to a republican one. A democratic constitution views we the people as a group. We the people as a group, the purpose of the constitution is to empower the majority of the people to rule. The idea that we the people as a group, the people must rule, we the people must rule as a group and the only way they can rule as a group is by a majority. How else are they going to do it. Therefore the purpose of the constitution is to set up a democratic mechanism to address the will of the people. It makes perfect sense. In this game unelected judges are problematic because they are thought to for the will of the people as reflected in their legislatures. Under a democratic constitution therefore, the will of the majority should generally prevail. In contrast, a republican republican constitution views we the people as individuals. As the declaration of independence affirmed, we are endowed with certain inalienable rights which are the individual rights to life, liberty and the pursuit of happiness per the next sentence of the declaration, and i spent chapter one entirely on one entirely on the declaration of independence, the next sentence says, that to secure these rights governments are instituted among men, driving their just powers from the consent of the governed. Not all powers, not Unlimited Powers but their just powers are what they derived from the consent of the governed. The purpose of the government is to secure the individual rights that the previous sentence had just referred to, the rights of life liberty and the pursuit of happiness. So in short, under the republican constitution, first, rights and then comes governments to secure the preexisting rights of we the people as individuals. And then, to ensure that government is held to its just powers, the constitution is put in writing, such as this to provide the law that governs those who govern us. We are all governed by laws that are made by governmental agencies, but this is the law that governs those who govern us now as i explain in several chapters of our republican constitution, the constitution secures these rights, primarily in two ways. First by means of federalism in which the federal government is limited to its enumerated powers while allowing 50 states to adopt a diversity of the social and economic revelations. Second, by by a separation of powers in which the National Powers can make it execute and enforce the laws are placed in separate hands. In addition, judges too are servants of the people and they have a duty to keep legislators within what the declaration calls of their just powers by invalidating irrational and arbitrary laws. After all, we the people cannot be presumed to delegate to our servants in the legislature of power to arbitrarily or irrationally restrict the exercise of our preexisting rights to life liberty and the pursuit of happiness. The death of Anthony Scalia combined with Senate Republicans refusal to consent to any nominee until after november has raised the stakes on an issue that should always be at the forefront of any president ial campaign, but usually isnt. That is the future of the Supreme Court and our constitution. As a result of his death, selecting the next justice is already a prime topic of the ongoing president ial contest. But now is the time to be clear about the nature of the choice we face. Most assume today that the current divide on the court is political. In the sense that the left side favors progressive outcomes while the right side favors conservative ones. Thats not truly the case. For example, when i argue the case of gonzales for the case in 2004, one might have supposed that the left side of the court would have favored my clients who sought to use medical marijuana as authorized by california law. Yet, chief justice rank list and oconnor sided with us while the four most progressive justices stood in opposition. Then we lost 6 3 when Justice Scalia and kennedy joined the ranks of the progressive. What was at stake for both side however was not a policy dispute over marijuana but a difference over constitutional principle, in particular a disagreement over the sort of constitution we have and the proper role of judges in enforcing it. Do we have a democratic constitution in which the rule of the majority takes priority unless expressly prohibited. If so judges should generally defer to the will of that by their representative. Or do we have a republican constitution in which we take priority over there serving in the legislature and if so, judges have a duty to ensure that the service of we the people remain in the constitutional limits on their powers. The liberal justices but their principal commitment to majoritarian rule at the National Level above their compassion for the sick, the suffering and the dying. You kind of have to admire them for that. Conversely, the three conservative defenders put their principal commitment to constitutionally limited power above their war on drugs. Now we cannot be sure why Justice Kennedy joined the liberals, but Justice Scalia scalia made his reasons clear. In a separate concurrent opinion. Under the necessary and proper clause the court must deferred to the judgment that it was essential to reach home grown marijuana to enforce its ban on the trade. On the other hand they should defer to the majority of legislatures. In short, six of nine justices exercised judicial restraint in deferring to the democratic will of congress when it came to enforcing the scope of Congress Power under the commerce under proper and necessary clauses but three justices were prepared to draw a line at federal power to leave it to the decision of the state. Three were prepared to enforce the tax of the republican constitution. The same divide over the proper rule of judges enforcing our republican constitution rose in the obama case. By then the numbers had been moved in a republican direction. There, the more progressive justices were monolithic to their claim of power to require citizens to do business with a private company. Now, for conservative justices, including both scalia and kennedy stood forthrightly in favor of the republican constitution limits on federal power. The fifth the swing vote was by chief Justice Roberts. As i clean in the book and i tell the story of the obama case in which he plays a prominent role in the first chapter of the book, chief Justice Roberts affirmed that republican limits on the scope of federal power by holding, this is chief Justice Holding that the individual purchase mandates will indeed beyond congresses power congresses power under the commerce and the necessary and proper clauses. On the other hand, he then invoked to the democratic restraint adopting what he calls a saving construction that turned the individual insurance requirement into an option to buy insurance or pay a modest noncoercive tax. As he put it, quote granting the act, the full measure of difference owed to federal statute, it can be so red. He then defended this move by insisting that quote, it is not our job to protect the people from the consequences of their political choices, unquote. Now perhaps he expected to split the baby approach to be received by conservatives with equanimity. But it wasnt. Many on the right were outraged by what they believed, because they believed it was the job of the Supreme Court to hold congress to its enumerated powers and their therefore protect the liberties of we the people even when part of congress enacted obamacare. This was a political Inflection Point in how conservatives and shiva of the role of judges. Ever since the rise of modern conservatives have them, conservatives have been conflicted. On one hand, unlike the left they are committed to following the original meaning of the constitution. But on the other hand, many have long professed their belief in the doctrine of judicial restraint. Yet ironically as as i explained in the book, the doctrine of the will of legislatures was done by political perv progressives to free those from the state on their legislative power that were in our republican constitution. As a result of chief Justice Robert a whole upholding obama care, the trend of opinion among conservatives has moved sharply from judicial conservatism and restraint toward what is best called constitutional conservatism which favors judges enforcing the original meaning of the text even if it means invalidating a popular enacted law. The judicial philosophy of the court is now divided in the next appointment will be crucial. For years democratic president s have been selecting justices that are here to the democratic constitution. In current, the record of republican president s has been deeply disappointing. Appreciating the differences between them helps reveal why this is happened. By selecting judges and justices for their commitment to judicial restraint and difference to the majority. Reporter and branches, republicans have actually been nominated and confirming jurists who adhere to the democratic constitution in practice. At least when the chips are down. No matter how much conservative justice might profess a commitment to follow the text of the constitution, as chief Justice Roberts did when he agreed with us that an insurance mandate was unconstitutional, they are always inclined to refuse to enforce the constitutional text against the congress or the president as chief Justice Roberts did when he turned around and adopted what he called the saving construction that changed the meaning of the statute so he could uphold it. It is Standard Operating Procedure for republican appointed justices, in the name to adhere to a new deal that have overridden the text of our republican constitution. Since democrats will never nominate a fullblown adherence to the republican constitution, restoring our our Constitutional Republic will require a republican president who will. A republican president who will seek out judges and justices who appreciate the declarations affirmation that first come the inhalable rights of we the people as individuals and only then comes government as their service. Justices who realize that the democratic will of the majority is not the solution to the problem of constitutional legitimacy but instead the majority t of democracy is the very problem republican form of government is needed to solve. In short, now more than ever, we need a president who will point judges a point judges and justices who understand that only a republican constitution like ours can, if followed secure the liberty and sovereignty of we the people each and every one. Thank you. [applause]. Thank you randy, we will now have comments from Professor Robert. First of all, he is the professor of law at the university of maryland, will a blob blog where he has taught since 1987. He is also director of the schools environmental law program. He is a graduate of Mcallister College and earned his ma and law degree from Stanford University where he was editor of the stanford law review and was named the Nathan Abbott scholar for graduating first in his class. He served as a law clerk for judge shirley of the u. S. Court of appeals from the ninth circuit and for u. S. Supreme Court Justice marvin white. He also served as a special assistant to the first u. S. Secretary of education. Professor is an internationally recognized as a leading scholar in teacher and environmental law his 1992, he has been the principal author of the countrys most widely used casebook in environmental law, environmental regulation, law science and policy. Now in the seventh edition. He is the author of more than 100 publications that focus on environmental law, federalism, president ial powers, regulatory policy and legal history. Prof. Percival has taught as a visiting professor of law at the Harvard Law School and the Georgetown University law center. He has taught and lectured extensively in china and has taught in lineup altogether in 29 countries on six continents. I gather you have missed antarctica. You dont speak penguin. This is professor percivals second visit to cato in the last three months and we are delighted to have him back. Please welcome him. [applause]. Thank you. As i have traveled around the world, one thing that i always carry with me is the cato publication, the constitution, this, this one has been to scores of countries and i wanted to thank roger because he just presented me with a new copy that i can keep bringing with me. What i like about it is the fact that its the oldest written constitution in the world. Its the envy of the world. Particularly when i go to china. The Chinese People are dying to have an independent judiciary and to develop a tradition of respect for the rule of law. Because they live under a one party system where politics ranks supreme and the communist party gets to decide which cases the court will hear and often how they are going to be decided what i teach constitutional law, i usually start with the following historical proposition. I say, let our Founding Fathers were faced with was the ineffectiveness of the articles of confederation and the fact that we had just won a revolution against a king. So their task was to figure out how can we have a strong federal government that will be effective as the article of confederation was not and at the same time, protect the individual liberty so that we wont face the situation that we faced when we were under the sum of king george . Their solution as randy indicated was two things, federalism and separation of powers. Divide powers among the judiciary, the legislative branch and the executive, they decided upon and have dual sovereignties, federal and state government. Now throughout. Now throughout history, that has been a recipe for lots of conflicts, political conflicts between the branches of the government, between the state and between the federal government. That is part of the constitutional divide. In his book, professor barnett writes very engagingly, very, very excessively and tells some great historicals stories and i think this is a book people should buy at costco for a very wide audience. However, i think that its fundamental premise, that there are two diametrically opposed interpretations of we the people sets up kind of a false dichotomy that tends to push us into further division. In fact, i think that while he is demonstrating that its possible to view the same document into widely different ways, what we have today is an understanding that the constitution both protects individual rights and it allows governments to function effectively usually through majoritarian rule when it doesnt trample too much on individual rights. The real conflict is how do you draw the line between when we decide to protect individual rights and when we reject certain constitutional challenges . Professor barnett quite candidly starts out by noting how, when the obamacare legislation was being debated in congress, the republicans were having a hard time coming up with ways to defeat it and no one could think of a reason why it would be unconstitutional. He developed this theory as to why it would be and it was instantly raised by the part of party trying to stop it from being adopted. At the time they said you dont have a prayer on this, but after it was embraced by a Major Political party, in the Supreme Court and in the lower court among judges that had been appointed, it got a much more favorable reception and for chief Justice Roberts deciding it was constitutional, it could have been struck down. Now, what this illustrates is how strong our ideological divide is today, even in the judiciary. When i was a law clerk for justice white, things were quite different. You couldnt predict in advance how the justices would vote on a particular issue. When white was nominated to the Supreme Court, his confirmation hearing lasted 90 minutes. His most significant statement was that he was asked what is your doom of the role of the judge and he said, it is to decide cases. He was concerned by a voice vote of the senate a few months later. How things have changed since then. We now have knockdown drag out ideological battles over Supreme Court nominations. And, the courts have become such a subject to this perception that they are in fact influenced by politics rather than by law. Now, the book advocates many things that i am sure reflect conservativism preferences as to how they would like the law to change among the prescriptions of the republican constitution and there should be a huge cutback in federal powers and the court should not defer to administrative agencies and at various times, in recent years, precisely because congress have not been very active in passing a lot of legislation, ridiculously in the environmental area where most of my scholarship is, the ways that the changes brought about is through litigants coming up with clever new theories to try out on courts and try tos tell tell the court that a law, even one that has been in effect and working well for decades should be struck down unconstitutional rounds. The classic case of that is the American Trucking case from 2000 where a two or three judge panel at the d. C. Circuit voted to do one that the Clean Air Act was unconstitutional on nondelegation ground. When that case came up to the Supreme Court, it was particularly realized that that would be pretty radical change. It would basically strike down most all of the legislation that authorizes health, safety and environmental regulation. So the Court Unanimously rejected it despite the pleas of industry that they should rewrite the statute required costbenefit analysis for everything. Prof. Barnett advocates for a system where individuals, any time anything affects their liberty to go into court and forced the government to justify why they are restricting that individuals liberty. That would be a recipe for tremendous litigation. We already have lots of litigation, but its not for its challenges under the administrative procedure act were the agencies have to follow these procedures, right now president obama, is set to be lots of legal challenges to it. They will be heard by the d. C. Circuit on june 2. I submit that thats a better way of dealing with this than letting each individual try to force the government without any perception of constitutionality to strike things down. Now, the reason the u. S. Has the oldest written constitution is because of its capacity to evolve. It has evolved and changed over time. When i was working with the Supreme Court, it was not ideologically split but there was a new justice, William Rehnquist who had a real ideological agenda. As a result he would always make two clerks read anything that came from rehnquist chambers. In keeping with the Supreme Court tradition, we had an opportunity to have lunch with each of the justices. At at the time, this was 1980, we asked Justice Rehnquist, what decision are you most proud of . The court was struck down and it applied to state government. In. We said why are you so proud of it and he said i view it as an agent in place. He had made this quite explicit in his early dissent in the work place. He attempted to restore federal power. He eventually accomplish that with the lopez decision, with the prince decision to, in a way that didnt threaten radical change in our entire system of federalism, he sent a shot over to the bow of congress to say you need to be much more careful in defining why what youre regulatings substantially affects interstate commerce. Just a few days before Justice Scalia died, chief Justice Robert in a talk at new England Law School said that partisan extremism is damaging the Public Perception of the role of the court. He said that particularly the increased politicalization of the confirmation project, the public start thinking about it not as a Legal Institution so much but as a political institution. Unfortunately, i think professor barnetts approach that he advocates in the book would exacerbate this tendency. When president obama announced that he was going to make a Supreme Court nomination for the vacant scalia seat, the Republican Leadership immediately announced we will not even consider it, so dont bother. This was truly unprecedented, the idea of no hearings, no nothing, we wont even consider it who you nominate. President obama surprised lots of people by moderating or by nominating a justice who has agreed to be very wellqualified by virtual everyone and yet the senate will not even hold hearings on the nomination even though judge garland was a classmate of Randy Barnett and he agrees that hes a very smart and qualified person. He said being qualified is no longer enough. Well what is enough . What is enough is that apparently the Republican Party now feels like we should just blind ourselves and not in wait until maybe we have a new president who wouldve point justices who would reach our preferred political outcomes. I submit that that is moving us further away from the rule of law and is a very dangerous tendency. I would hope that despite the fact that may be many of you would not share justice garlands preferences with respect to how certain cases would be decided, i would hope you would realized what a shameful situation this is when we have such intense politicalization of the most Important Institution in america to preserve the rule of law and the independent judiciary. Now, in conclusion the constitution and interpretations of it are always going to be an evolving process. But it should evolve not through radical change like this book represents, not through politicizing the Supreme Court and we get our fifth justice who will decide everything our way because hes beholden to the Republican Party, witness the condemnation of the right wing and chief Justice Robert susan excellent justice and trying to maintain the rule law, just because in one case he didnt have the political outcome of what they wanted. Professor barnetts colleague has a new book out called engines of liberty where he illustrates how the way constitutional change happens, whether its Marriage Equality or Something Else is through groups having longterm strategies to change Public Opinion to educate people about constitutional history. That is what prof. Barnett book is trying to do. The fact that they say responsiveness of constitutional law to the evolution of social norms is a historical fact. Given the open ended character of many of the constitutions guarantees, it is inevitable. I submit that this is a better way to see our constitution evolve rather than through the radical change that is advocated in his book. Now professor barnett does indicate that he thinks he could only accomplish this if a central part of the democrat of the Republican Party platform embraced his view of the republican constitution yet he also admits that some of the changes would be better off done through constitutional amendment. He wants to appeal the 16th amendment and those of us who signed checks on monday to send to the irs, that that certainly sounds appealing to eliminate federal income tax, hes also hostile toward the 17th amendment. In many ways, that would allow a direct election of sen. In many ways his book wants to take us back in time quite a bit and to work radical change. If we want to keep the republic as madison said, i think its best that we try not to politicize the courts. Thank you. [applause]. We never promise our main speakers a free ride and i want to thank professor personnel for keeping the tradition alive. Now to tell us why the leaving constitution should have a steak driven through it until it is dead, dead, dead, we will will have a response from Randy Barnett. The only living constitution is a constitution thats followed. The constitution thats ignored and followed, thats a dead constitution. Im in favor of a living one. Im in favor of the one that we have enacted. Thank you for those very insightful in stimulating remarks. I can see that professor is very nostalgic. What was he nostalgic for . He was nostalgic for the good old days. We all like the good old days, right . Were at the age when the good old days look so good. What were the good old days for him . He was back in the day when he served on the court and all the justices agreed with each other about how the constitution should be interpreted. Yes, i could imagine when all the justices agreed with each other about all the constitutions they interpreted, then at that point youre going to confirm a new justice all that really matters is their qualifications, are they smart, are they honest, do they have a judicial temperament . Of course, if everybody agrees what the constitution stands for and how it can be interpreted, everything turns around altercations and nothing else. Then what spoiled, who started spoiling all the fun . It was associate justice William Rehnquist who came on the court. You know what his problem was according to professor gresh marquis was ideological. All those other justices out there, they werent ideological. They were just, i dont know, rule of law guys, will call him, maybe just neutral. Associate Justice Rehnquist who was ideological. What was he ideological in favor of . It was in favor of federalism. That was it. Yeah thats it, federalism is how hes ideological. But its a strange kind of ideological commitment. Its commitment to a division of power between the federal and the state government. You can call that ideological, but it isnt ideological with respect to the outcome of particular cases. Chief Justice Rehnquist voted for their claim to be able to use medical marijuana under his principal commitment to federalism, not because he supported the use of medical marijuana as a policy result but because he was committed to federalism. Thats what this terrible ideological guy. Only its gotten worse because more of these ideological judges have gotten on the bench, arguing for things like federalism more in the recent case of the obama executive action orders, separation of powers. Or in delegation of powers. We we cant have that, thats too ideological. What are antidotes to this is the thesis of my book. Its this way of talking about the problem. Its the peace in my book, its not the political outcomes or the political preferences that differentiate, there are two sides of the court. Really what the people were nostalgic for the old days are nostalgic for is when there was only one side. Will now we have a competition. We have two sides and they are roughly different. You can hope that sometimes the Republican Party might choose people who are actually opposed to the mode and sometimes they do and sometimes they dont. Sometimes the people they choose are good and sometimes theyre not. But the antidote to this way of thinking is that what separates the parties and what separates the justices is not simply a commitment to their political preferences. Thats the way the professor put it in as the way most people put it. Its a commitment to two different visions of the constitution. Its useful to step back and see what separates those two visions. There are different ways one could explain this and in my book i decided the most effective way of understanding this was to understand the difference between we the people as a group in which we the people should be able to be ruled by majority rule and we the people as individuals in which we the people established government to secure the rights of the individual. These are two different ways of looking at the constitution. I dont think the constitution is neutral with respect to these views. I think it was deliberately crafted to adhere to the second of these views. It can only be made into a democratic constitution by ignoring key passages of the text like for example the ninth amendment that says the enumeration in the constitution of certain rights should not be construed to deny others retained by the people or the 14th amendment which says no state shall make or enforce any law which takes away the rights of the citizens of the United States. If you came down from mars and you read that in the constitution, you would say that sounds pretty important and then somebody could come along and tell you why it is that these two provisions are not enforced by the Supreme Court or by anyone else and they are completely lost in our republican constitution for and why did they have to get rid of them and other provisions of the constitution . Because our constitution is really of the second variety. Its a republican constitution and you need to adopt a living approach to get rid of the parts that get in the way. So i think what im hoping to propose is a compromise between the idea, between denying that partisanship plays any role because it clearly does and identifying what that difference is about, not making political preferences as to outcomes but competing views as to the constitution. I will say one more thing as to how he opened his remarks. Both of these visions of we the people are attractive and appealing. They really are. That is why, we sometimes try to hold both of them in our mind at the same time, popular rule is appealing and individual rights are peeling. For that reason, both positions actually incorporate elements of the other. The democratic constitution, the progressives who gave us this constitution couldnt live under that regime for ten minutes before they started to make exceptions for what they called fundamental rights and what they called suspect classifications of groups. They immediately qualify their commitment to the democratic constitution, especially when when the republicans took control of congress in 1946. They thought way to second, this judicial restraint thing, maybe we should rethink that. So i talk about that in the book. By the same token, republican constitution does integrate democratic governance into its structure. The house of representatives is supposed to play that role. The jury is supposed to play that role. The Electoral College is post a play that role. In other words, republican constitution constitution does allow for democratic checks on power. It just doesnt pretend that these democratic checks are the same as the voice of the people. So if ultimately the difference between these two visions is what is your rule and what is your exception. The democratic rule is majoritarian rule and they will give you select exceptions to that that they get to choose. The republican rule is the rights of the individual and then within that, the people do have elections in order to check the power that the government has over them. And so each side really accommodates the other but what we actually have in the document is a republican constitution. [applause]. Thank you randy. We have just a brief exchange and then will open it up. Predecessor burnett indicated that maybe im nostalgic. Actually the thing im missing most right now, i just took my students in an oral argument in the absence of Justice Scalia makes oral arguments a lot less entertaining. I wasnt condemning him from having a strong commitment to federalism. In fact, i think he demonstrated how that commitment transcended whether it was a conservative or liberal cause. In case after case after california put a Nuclear Moratorium in place, he upheld it because he respected federalism even though all the Industry Groups wanted it to be preempted by federal law. Every time a state would try to deal with the problem of interstate transport of Hazardous Waste by barring that waste from being disposed of, the whole rest of the court would say its a violation of the clause. But not Justice Rehnquist. He was truly nonpartisan and nonliberal or conservative in his approach. He he wasnt the least bit result oriented in his approach to strongly supporting federalism. With respect to the other justices on the court, i dont think there was a liberal group that was controlling the court at the time per look at my own Justice Byron white. The only justice appointed by president kennedy, he was one of the two in row v wade and he was also at the center in miranda. Finally, with respect to the Supreme Court confirmation process, i just brought along from statistics with me, i know that president nixon, republican nominated William Rehnquist to the Supreme Court on october 22, 1971 when the democrats had a 54 44 majority four majority in the senate. He was confirmed on december 10, 1971 less 71 less than two and half months later. So its incredible how our system has gone to the point where i fear for what will happen next. The democrats elected president s and the republicans retain the senate. Will they just say we like the justices on the court and we wont consider judge garland or any subsequent nomination until four years later when we have a republican president. We cant do this if we are going to retain our system of respect for the rule of law and the independent judiciary. Your response randy . I think of the democrats had confirmed robert, someone who i did not support myself but i believed was qualified by every measure that garland was qualified, then i dont agree would be in the situation that we are in today. At that time, the Committee Chairman biden said, at the time, something i agreed with at the time and that his judicial philosophy, he said, was ultimately as relevant as what we would call qualifications. Judicial philosophy was a part of the senates betting for the president s nomination from the other party. Thats all that im advocating and thats all the senates are saying. Judicial philosophy matters in addition to qualification and this is an important matter that given the fact this has happened during the Election Campaign season, it should be decided by the electorate very shortly. If very shortly will be. Why not hold hearings to explore judge garlands philosophy . His philosophy is relevant, but the point is i think it would be unfair to him to make it about him. Its not about him. Its about the next choice, whoever they may be. He may or may not be the most reasonable nominee a democratic president might put forward. this is something that is decided by the political process and they will decided in november. The situation today is unprecedented in the following sense. In the modern era, the post1900 the post 1900 area there have been only four cases of vacancies during a president ial election year. Two were were in 1916, one was in 1932, and one was in 1956. In the first three cases the senate was in the same party as the president. In the 1956 case it was tantamount to that in the sense that when president , when justice stepped down for Health Reasons the same dave president eisenhower nominated president william as a recess appointment. The next year he nominated him for this seat and the senate was in democratic hands by two votes but the southern democrats at that time voted with the republicans in many cases. So that was not really relevant either. This situation is one that is unprecedented in the modern era and it is hardly a case in which the president can stand on principle grounds since he joined a filibuster against sam melito and the very first year of the second term of president bush, not in a president ial year. Moreover, we seem to forget that when president bush made it nine appellate nominations in may 2001 the Democratic Senate sat on those nominations for nearly two years and they included such people as john roberts, michael mcconnell, and other extraordinary wellqualified people for those appellate seats. Lets go now to your questions. If you would wait for the microphone to get to you, if you would identify yourself and any affiliation you may have. Let me also ask you while one person is asking a question, let me know that you want to ask a question so that we can get the mic to you. And have a little downtime as possible. That start up here and then lets go secondly to the gentleman in the green shirt right here. Hello. My name is lacks and i am on. My question is for professor barnett. I would like to get a sense of reality into this discussion. You talk talk about restoring the republican constitution. To what extent is it possible in any way, shape, form to do that, hasnt it been dead since 1938 . Do you imagine that something is their court in our future that will reduce helvering and restore the numerator powers . Or the the ability to regulate everything under the Commerce Clause will be somehow limited . It tell me how the public and constitution gets reinstated or restored somehow. Thats a great question. Chief Justice Rehnquist implemented of this are no far strategy. It is an in between strategy and that is he said lets take all previous expansions of federal power and can sitter that to be the High Water Mark of federal power. If you want to go beyond that you better have some special justification for doing that and to the justification you offer should not be consistent with Unlimited Power in the hands of congress. That is what lopez represented, that is what rage was backing away from. That is what five votes represented in the healthcare case because mandating you to do a particular product was Something Congress had never tried before. It was going above that line. And the justification offered on behalf of it basically said congress could do whatever it wants which is the dream of progressive wants. One way to deal is to hold the line. That is considered to be radical when it was done. The whale constitutional change change happens is gradually. Whether we like it or not. What matters is the direction its going not how fast it goes. You can slow and limit and then he can stop and then you can gradually roll back. That is the way these happen on a multimember court, the members of which the constituents will evolve over time with multiple cases. That is actually how it will happen. It is not going to happen unless you understand the different conceptions of the constitution that are in play as always you confuse this with political disagreement and not political principle. It is not going to happen. Then he see what the ultimate goal should be and then you can work towards that end. Eddie hawkes, i am am a local attorney. My question is about professor barnetts discussion of the declaration. What is your understanding of why jefferson used life, liberty, and the pursuit of happen over the phrase life, liberty and and property and does that have any significance in the republican constitution . No one is entirely sure why that change was made. It was a matter of speculation. It was done in the course of drafting this over short. Of time. There has been speculation, dont want to to entertain what that speculation is. The formulation of our National Rights was george masons draft, jefferson was copying from it. Mason had sent him a copy i tell story in the book, mason sent a copy of the draft declaration he drafted a few months earlier. Jefferson headed in front of him when he did life, liberty and the pursuit of happiness. It was actually masons draft which talks about the acquisition and enjoyment of property. That was of property. That was copied by several other state constitutions including the massachusetts can constitution ultimately was masons version that led to the abolition of slavery by the judicial court. I honestly do not want to speculate about why he changed those words but it was masons formulation that ultimately became that version that was spread throughout the United States at that time. Hello im walter. A question for Randy Barnett. With the general logjam of constitutional amendment process that nothing much seems to be getting through, theres been some renewed interest in the article five Constitutional Convention process. I wonder wonder if you could say a little about how and whether this maps onto the republican versus democratic idea of the constitution. The idea of calling the convention to amend it. I am involved in some article five movements and i do endorse article 5. At at the end of the book which it is in the course of comments. It really would depend on what amendments are being per pose. We have progressive amendments that were made part of the constitution like the income tax amendment that made our constitution less republican. In part because it generated so much money for the federal government that they could spy off states with the money that was being collected from their own state citizens and coerce them into taking part in federal programs. Otherwise their citizens dont get their money back. It was not meant to have this effect but it did. So whether an Article Five Convention which is perfectly permissible under the constitution its perfectly okay to change the constitution. Whether that is going to serve republican or democratic ends will depend on the substance that are under consideration. I favor amendments that would make the constitution more republican in the sense that i use it and theres two purposes of it want us to correct the Supreme Court decisions in a way that the Supreme Court itself is not going to do and the other is to fix some of the problems that we know exist with a republican constitution which is not perfect constitution. To the point that raises with a 16th amendment and the misuse of the spending and general welfare clauses it is nicely set forth in james buckleys a book saving congress from itself about grandson aid that involve the federal government, Congress Picking up 80 of the tab of the states will only put in another ten or 20 . Then dictating the uses to which it that money shall be put. In time then removing that money and leaving the programs in the hands of the states for projects, had they spent their own money would probably never have chosens. Sos. So james buckleys books that we feature the cato addresses that problem in a wide variety of contexts. You had also some comments about the amendment process. Randy does a nice job in the book covering Article Five Convention possibility. What is scary about it is given the incredibly strange state of our politics today, as randy indicates, it would depend on who is going to be at that convention, the possibility of wholesale changes in the constitution is very scary to people and should be very scary to people of all political strikes. Randy points out in his book that they can propose amendments, they still they still would have to be ratified by the states. I would argue that our current state of politics that there is nothing to justify such a radical step. It would take on the 13 legislative bodies it to block any amendments but during this whole election season i am not sure that would save us. , john hopkins. The only mention of republican in the constitution is the guarantee clause. That National Governments obligation to guarantee a republican government to the states. It seems to me what you are suggesting is the constitution itself is a republican guarantee of National Governments. To the National Government and of course we know the republican guarantee clause is rendered irrelevant by chief justice tawny in the antebellum case. But justins thomases recently revived it in the case of apportionment. So i would like you to speculate on how this could all Work Together for the restoration of National Republican government. Thank you. I actually have not read justice thomass opinion yet yet but i have read about it. I have not thought through exactly an answer to the question you ask. I do not want to speculate too much on cspan about what i might be thinking about this. I will say that it was almost immediately after our republican constitution, this one was devised to solve a problem that they felt needed solving that virtually every state then copied it. The states all had a variety of different forms many which were much more democratic. Almost immediately after this was an controversial as this was because it only passed narrowly, within a few years every state had emulated this form a government in the states. Thats why all why all states have three branches of government. So the very meaning of republican government had changed at that point toward this form of government. Away from the more democratic government that had dominated states before. Hello. Janice, presentday america and jm justice, new software to help keep our judiciary accountable. You mentioned the situation regarding judge Merrick Garland to and if it should be heard. How can he basically impeach himself from having the ability to treat the judiciary correctly when he accused himself from holding judge Richard Roberts accountable for the rape of a 16yearold as a victim when he was a prosecuting attorney. When he made the decision to recuse himself and not hold the judge accountable. We as americans are going to be paying his salary now with his retirement. This seems to be a pattern and practice with the judges not holding each other accountable when they are self policing. I know marek, i think very highly of him. I have heard about the case youre talking about, i dont know specifically why he recused himself. The effect of him recusing himself is another judge would hear the case that he would not here for whatever reason. I do think that the reason why the republican should not go forward with nominations has nothing whatsoever to do with his own personal merit. Or is own integrity. I can imagine that he would be a fine Supreme Court justice if i agreed with his vision of the constitution. I would just let it go that. I will say one thing is one of the concerns he expressed to me and be in nominating is somehow his reputation might be dragged through the mud. I told him that i do not think the republicans in the senate had any interest in doing that and i cannot speak for Interest Groups are activist groups but i do not think this segment did and as long as they stick to their principle that it doesnt matter who is appointed this decision should be put on past november and i think we should avoid any sort of personal attacks on judge garland. Tim lynch with cato. This question can be for both panelist but is primarily for Randy Barnett. You make a strong case for the republican constitution over the democratic constitution but can you talk more about the third school that you eluded to which is the result Oriented School which is really the popular view. If people do not like a lot of what the Supreme Court to invalidate it. If they do like a law they want the Supreme Court to uphold it. It is kind of awkward i know because to my knowledge no scholar has written a book a defending or coming to the defense of this third school. It is probably the popular understanding in our culture today. Ice early run across it in my travel. I think it may be a more powerful school than either the republican or democratic schools of thought that you have been talking about. Im against. [laughter] we all have our priors. All of our instincts about any case we first hear about is influenced by how we want it to come out. Everybody is like that. We have a rule of law in order to temper our priors, our prior commitment, commitment, to qualify bit and make us run our priors through some of the way of analyzing things to see if we are okay, if it is justified for us to get our way this time. So yes we start with our priors and we evaluate constitutional arguments whether theyre persuasive or not, in part based on that but then those arguments are tested against our opponents an objection to those and eventually we should try to reach considered judgments on whether they fit with the rule of law, not simply with our political predispositions. The only main only main message im trying to get through, that what separates people on the left from people on the right within the legal system, within the legal culture is not a pure disagreement over outcomes. Its not what separates the left side of the court from the right side. Sure, they all have their brooding interest in this outcome or that outcome. But what genuinely separates them is their commitment to one vision of the constitution over another. The democratic constitution with qualification which one is the vision that motivates them. That moore explains her behavior that looks partisan than simply i like this outcome, you like this and were going to figure out a way to rationalize it. I think the best example of that is antonin scalias opinions and the two flagburning cases that came up in 1989 and 1990. He obviously was not a fan of flagburning but he found the law unconstitutional and as he said after word when he went down for breakfast that morning his wife was marching around the table singing its a grand old flag. Can i add one more thing. I think constitutional law professors are at fault for this because the way it is taught even in law school is that you have a class discussion in common law and like flagburning are you for against it, now, make an make an argument on behalf of your side now you make an argument on behalf of the other side and they make it out to be in class anyone who sat through this can testify that you pick what your outcome is and then you marshal every argument in favor of that outcome and the other side does the same thing and then a judge will pick which outcomes they like. This is the picture or portrait of that is actually taught in classes. So it is not a surprise that the general public would have this view of common law professors teach commonlaw this way. I dont think ultimately it is the way the justices ultimately decide cases. Im not saying they never do. Im just saying basically they are committed more to the principles of the constitution, they just disagree in a partisan way over what those principles are. It is useful for us to focus on that because if we only pick judges that we think agree with our outcomes were going to be disappointed in those judges of the fact that whole principles at verse two the way we think that constitution should be interpreted. Statutes are much easier to change than the constitution is to amend. That is why it is unfortunate if the prescription as we should have much more judicial activism that will encourage lawsuits claiming that because you do not reach my preferred outcome this is unconstitutional. It would really leave things in a mess. So in that sense i think we are far off if we try to affect change by changing statutes and doctrines that limit our ability to solve problems. Thanks. I wanted to ask if you thought maybe the best practical way to restore our republican constitution is following some of the prescription of Charles Murray and his recent book of funding outfits like the institute for justice, another tatianas group as well. To test in the most demanding way the laws that are on the books in the states. I only ask it because mr. Lynch, i think the third approach that he was giving voice to come i dont know if use for or against it but i wanted to put it out there. He would not be at cato if you are for. It speaks to how i think the law is regarded by folks who would not demand that it have any justification. Rather i like it whether i like vanilla or chocolate ice cream. I i would ask if you thought the approach which doesnt seem to be as they would say to be cooked up by law professors, think its a pretty pretty organic from the ground up problem. Eyebrow threaders in texas, dental hygienist in north carolina, it seems to be a practical problem in the real world. I was hoping you could articulate how those cases might be a way to help restore the republican constitution. Not to pander to much. I will just say this gentleman is from the James Wilson Institute that i have a chapter in the book in which wilson figures prominently because in his decision he well articulated the 17th that i favor. Our most neglected founder. My second pander will be for the institute for justice. I actually ran into someone from ij last night and i said to him, i have a new book and he said what is it about. And he said its a big historical treatment. It starts at the founding and then it tells the entire story of the United States that culminates in the formation of the institute for justice. Thats how it all in. Then i talk about clark mealeys book terms of engagement and ibis the cases that he talks about in his book as heroic efforts to try to identify irrational and arbitrary loss. Again, i pander to the institute of justice and finally my final pander as to charles and his excellent book, i think its a very provocative book and i think its recommended to firstyear law students because its an overview of all the law they will be learning and whats wrong with it. As for his proposals, some of them are more workable than others. The idea that there could be free representation to challenge laws that are irrational or arbitrary, it would be a way to disciplining administrative agencies at state and local levels. These are oftentimes boards that are dominated by industry people that basically use them to caramelize their industry. Its a wonderful innocence market alternative to check assuming you have judges who are prepared to hear these cases as neutral magistrates. That is something this book is an effort to get us to. This is a book about what role judges should have. At the end of the book i argue that judges do have a role in screening out irrational and arbitrary laws. It is it is only they think they do can they cases at the institute of justice brings be decided fairly. Sir, you have been very patient. Im from washington d. C. When i taught constitutional line never taught at the way it was it described and im sure neither of the professors teach constitutional law that way. Can i hear something to reconcile the discomfort you describe that James Madison had with popular democracy with his documented urging at the Constitutional Convention for torsional representation against the idea of mel portion senate. The argument that he eventually gave up at the Constitutional Convention as a way of political compromise and getting the constitution past. There was a lot of back and forth. James madisons originals original overall scheme did not get adopted. As it were proposed. No ones original got adopted the way it was proposed. Medicine coming from a a powerful big state wanted a powerful big state to call the shots in the convention and lo and behold, the representatives from the smaller, less powerful states were opposed to that. To get them on for a compromise had to be made in which the size of your state mattered in one house and the size of your state did not matter and another house. This is how compromises are done. Madison was representative of virginia and he looked out for virginias interest in doing that. That really is not in all in conflict with his other commitment to the idea that popular input, for one thing i dont know what the state of selection was at the time this was being proposed. None of this one against his commitment that the voice of the people which he believed them play a role in government needed to be filtered. Needed to be filtered in order to protect the Knights Rights of the minority in the individual. So there was filtration mechanisms he felt were put in place in all three branches of government which the voice of the people would be heard but it would not be necessarily decide the question. It would be the most Popular Branch and the jury which could judge both the law and the facts in every case would be a popular implemented the Judicial Branch and we assumed every case a be a jury case. The president ial selection selection would be done by an Electoral College that was sent the delegates. There be popular input into all three branches. It just is not to be confused with the unitary voice of the people. A concept that did not become popular until the modern Democratic Party which i talk about in the book in the 1820s and 1830s when they circling themselves a democracy. Because they were the party in which the will of the people would be heard. That one that one party and only that party. Thank you professors the book is our republican constitution, secured and the liberty and sovereignty of we the people by professor Randy Barnett. It is available outside for a discount. Randy will be glad to sign it for you. It is available at better bookstores everywhere and cosco. If we run out of books outside. I can just say that i always aspire to write a book that you combine the airport. But even i cannot write imagine that i would write a book that you can buy cosco. This was a huge accomplishment. We are going to break for lunch in the second level of the spiral staircase. At the george George M Yeager Conference Center there. Before you do please lets have a warm round of applause. [applause]. [inaudible] you are watching book to be on cspan two. Television for serious readers. Heres a look at what is a primetime type. We kick up we kick off the evening with peerless surprise winning a net gordon reed and jefferson scholar who discusses the intellectual maturation of thomas jefferson. After that Charles Kessler talks about the conservative publication, the claremont review of books basically amount college. At 9 00 p. M. , former economic hitman john perkins uncovers corrupt practices. At 10 00 p. M. Peter marks reports on a strategy to revive aig after the 2008 financial crisis. We finish. We finish up primetime programming at 11 00 p. M. With Deana Hoffman to provide a history of jerusalem with its contemporary architecture. That happens tonight on cspan twos book tv. First up, heres a look at thomas jefferson. Welcome to the free library of philadelphia. I am representative jim roebuck. Im happy to be here this evening. I am native philadelphia and