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 column broad side this book is sure to receive wide attention and deservely so. I just learned that its available at costco so people who are watching us on cspan after this forum 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 politically divisions we see in america today, divisions about health care, gun control, affirmative action, immigration and so much more. But about the far more fundamental division we see in our understanding of our basic law, the constitution and what it authorizes. If we want a better understand and appreciate those surface divisions, thats where we have to turn because thats where theyre grounded. Just to be clear in speaking about the republican constitution and the democratic constitution, professor bar net is not making partisan points rather as the book subtitles suggest 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 will have a far better grasp of 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 for about 15 minutes or so. Professor barn net barnett will respond and have brief exchange between the two and turn to questions to you after which we will have lunch upstairs in the george m. Yager conference center. The book is available at substantial discount outside of the auditorium and professor barnett glad to sign the book for you. He directs the Georgetown Center for the constitution and teaches constitutional law and contracts. Hes also a senior fellow here at the Cato Institute, after graduating from North Western university and Harvard Law School professor barnett tried many felony cases as prosecutor in the Cook County States Attorney Office in chicago. In 2004 he argue it had medical marijuana case of gonzalez before the u. S. Supreme court and in 201112 he represent it had National Federation of independent business in its constitutional challenge to the Affordable Care act. Professor barnett has been a visiting professor at the Harvard Law School, university of pennsylvania, North Western and then university francisco in guatemala, university of tokyo and university in kiyoto. In 2008 he was ordered fellowship in constitutional studies. Publications include more than 100 articles and reviews as well as nine books including restoring the lost constitution, the presumption of liberty, published by princeton in 2005 and legal cases on constitution and contract law, the book structure of liberty, justice in the rule of law published by oxford in 1998 was published in japanese. Professor barnetts opinion appear regularly in the wall street journal and elsewhere and appears in Public Affair media. In 2007 he was featured in the documentaries the trials of law school and in search of the second amendment. And he portrayed an assistant prosecutor in the 2010 independent film, he is here to discuss his new book, republic and constitution, securing the liberty and sovereignty of we the people. Please welcome professor randy barnett. [applause] thank you, roger, thanks to the Cato Institute for hosting this wonderful event. I look forward to the commentary that we are about to receive and and to discussion that we have afterwards. 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 behind the constitution a convention to device a new constitution. In september of 1786 he participated in a prelim preliminary. Now, the pressure was on, the 36yearold madison. Before your honoring to philadelphia he crammed for the gathering like a student for his exams from a chestful of books that had been supplied to him by his friend and mentor thomas jefferson. Madison has a fundamental problem to solve, like many others he had concluded that the american regime governed by the articles of confederation was grossly inadequate an contrary to what the virginia declaration of rights referred to the Common Benefit protection and security of the people. But why was this happening . For the previous 13 years the people of the United States had 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 many. If the many are screwed by themselves, this is cook county. This theory is expected to be false. State legislators had been gone enacted debtor relief laws and impaired Economic Prosperity which required credit market that can reply on private contracts to collect from debtors, trade barriers to protect their own businesses from competing firms in neighboring states. The result was a National Economic downturn. A really great depression. So republican government as it was then conceived was clearly not working by the people. Largely for his own benefit madison composed an essay thats called the vices of the political system of the United States but it was not an essay for publication, it was an essay for his own benefit, it was like a working paper for him to figure out what the game plan needed to be for the you mean copping Constitutional Convention in befl, and so we have this document, its a remarkable document because it shows how he was sorting through the problem. What was the problem. The problem was that the laws the state were passing were unjust. The causes of this evil could be traced through the representative bodies in the states and ultimately to the people themselves. This he wrote called into question, quote, the fundamental plin ciple of republican government that the majority who rule are the safest guardians both of the public good and of private rights. Madison concluded that we must be far more realistic, divided into different interests in fashions as they have been to be creditors, rich or poor, manufacturers, members of different religious, followers of different political leader, inhas been tapats of different districts, owners of different kind of property, et cetera. In a democracy, the debtors outnumber the majority however, composed, ultimately give the law whenever therefore an apparent interest unit it is majority who is to restrain them from unjust violations of the rights and interest of the minority or of individuals. Place three individuals in a situation where the interest of each depends on the voice of the others and give two of them an interest oppose to the rights of the third. Will the latter be secured . The prudence of every man would shun the danger, he said. Like wise he asked, would 2,000 in a like situation be less likely to approach. In short, there is nothing stopping a majority at the expense of the minority. Now, madison concluded that what was needed was nothing less than a new republican form of government that would address the weakness of Democratic State governments while preserving popular sovereignty. As madison put it quote to secure the public good and private rights against the danger of such and at the same time preserve the spirit is then the great object to which our inquiries are directed. Now madison was not alone. At the pennsylvania convention, first attorney general of the United States observed that the general object to the convention was to provide a cure for the evils under which the u. S. Laborerred and he said in quote, in tracing these evils to their organize inevery man had founded in the turbulence of democracy. Robert sherman of connecticut, that every man of observation had seen in the democratic branch prescription in congress, changeableness and every department excesses against personal liberty, private property and personal safety. Even those who had remained more amenable like george mason of virginia admitted that quote, we had been too democratic, unquote in forming State Governments. At the conclusion of the philadelphia convention, anxious 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, well, doctor what do we have a republic or monarchy and frank lid said a republic, madame, if you can keep it. But while the new form of was not a monarchy, neither a democratic, yet frank lil called it a republican, thats because the meaning of that term, a republic, republican had just been changed by the men inside the building from which franklin was leaving. In my book i explain how the two fundamental views of the constitution divide us even today. I call these divergent views 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 the democratic constitution and some progressives who adopt aspects of the republican one. Many people, perhaps most people flip between conceptions between on which happens to conform to the results they like on a particular issue. I contend that what divides to a democratic constitution from those who favor a republican constitution are two fundamentally inconsistent visions of we the people, the first three words of the constitution that lead to two radically different conceptions of popular sovereignty. Those who add here to democratic constitution hold a different conception of we the people and popular sovereignty than those who add here to a republican one. A democratic constitution views we the people as a group o. We the people as a group. And the purpose of a constitution is to empower the majority of the people to rule. The idea of we the people as a group is we the people must rule. We the people must rule as a group and the only way people can rule is for a majority to rule, how else are they going to do it and the purpose of the constitution to set up a democratic mechanism to ebbing press the will of the people. It makes perfect sense. In this scheme unelected judges are problematic as reflected in the legislature. Under democratic constitution therefore the will of the majority should general prevail. In contrast a republican constitution views we the people as individuals. As the declaration of independence affirmed, we the people are endowed with certain rights among which are the individual rights to life, liberty and the pursuit of happiness. Then the next sentence of the declaration and i spend chapter 1 entirely on the declaration of independence, to secure rights governments are instituted among men from the consent of the government, not all powers, not Unlimited Powers but just powers are derived from the consent of the government but the purpose of 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. In short under the republican constitution first comes rights and then comes government to secure the preexisting rights of we the people as individuals. And then to ensure that government is held to 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 charters of our republican constitution, the constitution secures these rights primarily in two ways. First, by means of federalism in which the federal government is limit today its enumerated powers while allowing 50 states to adopt twersty of social and economic regulations, and second, by a separation of powers in which the National Powers to make and in addition judges are the servants of the people and they have a duet to duty to keep legislators by arbitrary laws. After all, we the people cannot be presume today delegate to our servants in the legislature, the power to arbitrarily irrationally restrict the exercise of preexisting rights to life, liberty and the pursuit of happiness. The death of Justice Antonin Scalia with senate 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. And 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 today assume 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 but thats not truly the case. For example, when i argued the case of gonzalez ver suz rage, the left side of the court would favor my clients who sought to use medical marijuana as authorized by california law, yet chief justice ranquist cited with us while the most progressive justices stood in opposition and then we lost 6 to 3 when Justice Scalia and kennedy join it had ranks of the progressives. What was a stake was not 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. Or do we have a republican constitution in which the rights of we the people take priority over the decisions of their servants in the legislature and if so, judges have a duty to ensure that the servants of we the people remain within the constitutional limits on their powers. As the National Level of the sick and dying. You kind of have to admire them for that. Conversely the three conservative defenders put commitment to federal power above, we cannot be sure why Justice Kennedy joined the liberals but Justice Scalia made opinions clear. Under the necessary improper clause he wrote, the court must dfer to Congress Judgment that it was essential to reach home grown and consume marijuana to enforce ban on interstate trade. In this way the Justice Scalia add here to the democratic constitution, judges should defer to the majority of legislators. In short, six of nine justices exercised judicial restraint in deferring to the democratic will of congress when it came to enforcing scope of power under the commerce and necessary and proper clauses but three justices were prepared to draw a line at federal power to prevent citizens from producing and consuming a good on their own property leaving regulation to activities, now the same divide over the proper rule of judges enforcing our republican constitution arose ten years later in the obamacare case. But then the numbers had moved in a republican direction. There as the more progressive justices were difference to congress claim of power to require citizens to do business with a private company. But now four conservative justices including both scalia and kennedy stood forthrightly in favor of the republican constitution limits on federal power. The swing vote was by chief Justice Roberts. As i explain in the book and i tell the story about the obama case which todd is sitting in second row, chief Justice Roberts affirmed that republican limits by federal power, this is chief Justice Roberts holding that the individual purchased mandates were indeed beyond Congress Power and the necessary improper clauses. On the other hand, he then invoke it had democratic constitution of judicial restraint adopting what he called 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 read. And he then defended the move, it is not our job to protect the people from consequences of political joyces, end quote. Perhaps he expect it had split debate to be received by conservatives, but it wasnt. Many on the right were outraged what they believed because they believe it was the job of the Supreme Court to hold congress to enumerated powers and thereby protect the liberties of we the people even from a majority of congress who enacted obamacare. Was a political Inflection Point on how conservatives see role of judges. Every since rise of modernism, conservatives have been conflicted. On the one hand unlike the left, they are committed to following the original meaning of the constitution. But on the on the other hand many have long professed their believe in the doctrine of judicial restraint yet ironically the doctrine was promoted by political progressives to Free Congress on legislative pow e that were in republican constitution. As a result of chief Justice Roberts upholding obamacare in the name of judicial difference, the trend of opinion among conservatives have moved sharply from judicial conservatism and restraint towards what is best called constitutional conservatism which favors judges enforcing the original meaning of the text even if it means invalidating a popular enactive law. The next appointment will be crucial. For years democratic president s have been to selecting justices, in contrast the republican has been disappointing appreciating the differences helps reveal why this has happened. By selecting judges and justices for their commitment to judicial restraint and difference to the majority branches, republicans have actually been nominating and confirming who add here to the democratic constitution in practice, at least when the chips are down. No matter how much conservative justices 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 constitution text against the congress or the president as chief Justice Roberts did when he turned around and adopted what he called the save in construction that changed the meaning of the statute so he could uphold it. And it is Standard Operating Procedure for republican appointed justices in the name of stari to Supreme Court deal president s that have overridden the text of our republican constitution. Since democrats will never nominate a fullblown adherence to the republican constitution, restoring our Constitutional Republic will require a republican president who will. A republican president who will seek out judges and justices who appreciate the declarations afir maicion that first come the rights of we the people as individuals and only then comes government as their servant. And justices who realize that the democratic will of the majority is not the solution to the problem of constitutional but instead that the democracy is the very problem a republican form of government is needed to solve. In short, now more than ever, we need a president who will appoint 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 each and every one. Thanks. Well, thank you randy, we are now going to have comments from Professor Robert. First of all, professor of law at the university of maryland, school of law where he has taught since 1987. He is also director of School Environmental law program, professor percival graduate and law degree from Stanford University where he was editor of the stanford law review and was named Nathan Abbott scholar for graduating first in his class. He served as the law clerk for judge shirley of the u. S. Court of appeals for the ninth cir suit and for u. S. Supreme Court Justice buy ron white. He also served as u. S. Secretary of education. Leading scholar an teacher in environmental law, since 1992, he has been the principal author of the countrys most widely use case book in environmental law, environmental regularrulation, law, science and policy, now in its seventh edition. Hes the author of more than 100 publications that focus on environmental law, federalism, president ial powers, regulatory policy and legal history. He has taught and lectured all together in 29 countries on six continents. I gather youve missed antartica. Okay. [laughter] you dont speak penguin ease. This is the second visit to cato, we are delighted to have him back. Please welcome professor perceval. [applause] thank you, roger, as ive traveled around the world one thing that i always carry with me is the cato publication, the constitution. This one has been to scores of countries and i wanted to thank roger because he just presented me with a new copy of it that i can keep bringing with me. What i like about it is the oldest written constitution in the world and 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 oneparty system where politics reign supreme and the communist parties decide what cases the courts will hear and often how they are going to be decided. When i teach constitutional law, i usually start with the following historical proposition. I say, let our Founding Fathers were faced with was the infectiveness of the articles of confederation and the fact that we have 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 confederation was not and at the same time protect individual liberty so that we wont face the situation under king george and the solution as randy indicated was two things, federalism and separation of powers, divide powers among the judiciary, the legislative branch and the executive and have dual sovereignties, federal and State Government. Now throughout history that has been a recipe for lots of conflict political conflict between the branches of the government, between the state and the federal government. Thats part of the constitutional design. In his book, professor barnett writes very engagingly, access being, tell historical stories and i think this is a book people should buy a costco for a very wide audience. However, i think fundamental premise that are oppose interpretations of we the people sets us a false dichotomy into further division. In fact, while hes demonstrating that its possible to view the same document in two widely different ways, what we have today is an understanding that the constitution both protects individual rights and it allows government to the real conflict is how do you draw the lines when we decide to protect individual rights and when we rereject certain constitutional challenges. Professor barnett starts out by noting how when Obama Administration evaded in congress, no one could think of a reason why it would be unconstitutional. He developed a theory as to why it would be and it was instantly embraced by the Political Party that was trying to stop the legislation from being adopted. At the time most constitutional law say you dont have aprayer of succeeding but after embraced by a majority Political Party among judges by republican president , it got a much more favorable reception and butt for chief Justice Roberts deciding it was constitutional as a tax it could have been a struck down. What illustrates is the divide today. When i was a law clerk for justice white, things were quite different. You couldnt predict in advance how the justices would go on a particular issue. When white was nomg nate on Supreme Court most significant statement was he was asked what is your view of the role of the judge and he said, it is to decide cases. He was confirmed by a voice vote of the senate a few weeks later. My, how have things have changed, battles over Supreme Court nominations. And the courts have become subject to this perception that they are, in fact, influenced by politics rather than by law. Now, the book advocates many things that im sure reflect conservative preferences as to how they would like the law to change among the prescriptions of the republican constitution is that there should be a huge cutback in federal powers, the courts should not differ to administrative agencies, at various times in recent years precisely because congress have not been very active in passing a lot of legislation particularly in the environmental area where most of my scholarship. The way change is brought about is through litigants coming out with new theories to try to sell the court that a law even one thats been in effect and working while for decades, should be struck down on unconstitutional grounds. The classic case was the American Trucking case from 2000 where a two or threejudge panel in the dc circuit voted 2 to 3 that the clean air was nonconstitutional on nondeleggation grounds and when that case came up to the Supreme Court it was quickly realized that that would be pretty radical change. It would basically strike down almost all legislation that authorizes health, safety and environmental regulation. And so the Court Unanimously rejected it despite the pleas of industry that they should rewrite the statute for everything. Professor barnett advocates for a system that any time could go into court and force the government to justify why theyre restricting that individuals liberty. That would be a recipe for tremendous litigation. We already have lots of litigation but done through challenges under the administrative procedure act where the agencies have to follow these procedures, right now president obamas Clean Power Plan is set to be has lots and lots of legal challenges to it. They would be heard from by the dc circuit, i submit its a better way dealing with this than letting each individual trying to force the government 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 on Supreme Court, the court was not idea logically split but there was a justice, william renquist. Keeping with the Supreme Court tradition had an opportunity to have lunch with each of the justices and at the time this was 1980 we asked judge what decision are you most proud of and he said National League of cities versus usery a case 5 to 4 majority where they had struck down wage and hourly legislation as oppose to State Government employees and we said, why are you so proud of that. He said i view it as an agent in place. He had as an agenda, he made this quite explicit in his early decent an agenda to restore limits on federal power and he essentially accomplished that with the lopez decision with the prince decision to in a way that didnt threaten radical change in our entire system of federalism. You need to be much more careful what youre regulated substantially effect interstate commerce. Just a few days before judge scalia died, chief Justice Roberts said that partisan extremism is damaging the publics perception of the role of court. He said that particularly given the increaseed confirmation process, the public starts thinking as a political institution. Unfortunately i think professor barnetts approach that he advocates in the book would exacerbate tendency when president obama announced that he was going to make a Supreme Court nomination for the vacant scalia seat, the Republican Leadership announced we would not even consider it so dont bother, this was truly unprecedented, no hearings, no nothing, we are not even going to consider it who you nominate and president obama surprised lots of people by moderating a by nominating a justice who is agreed to be very wellqualified by virtually everyone and yet the senate will not hold hearings on the nomination and even though judge was a classmate and he agrees that hes a smart, qualified person. He says being qualified is no longer enough. Well, what is enough, what is enough that apparently the Republican Party now feels like we should just blind ourselves not let the public hear the views of justice at the hearings and wait until maybe we have a new president who would appoint 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 and i would hope that despite the fact that may be many of you would not share justice garlands preferences with to how certain cases would be decided, that you would realize what a shameful situation this is when we have such intense as rule of law and 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, because hes behold to the Republican Party, witness the condemnation by the right wing and the tea party of chief Justice Roberts who is an excellent justice in the tradition of traig to maintain respect for the rule of law, just because in one case he didnt buy the political outcome of what they wanted. He illustrates the way constitutional change happens, whether its gun rights in the heller case or marriage equality, its through groups having longterm strategies to change Public Opinion to educate people about constitutional history. That is what professor barnetts book is trying to do. The fact that professor says responsive of constitutional law of social norms is a historical fact and given the openended character of many constitutions guaranties, it is inevitable. I submit that this is the better way to see our constitution evolve rather than through the radical change thats 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 platform embraced his view as republican constitution. Yet he also admits that some of the changes will be better done through constitutional amendment, he wants to repeal the 16th amendment and those of us who sign checks on monday to send to the irs, that certainly sounds appeal to go eliminate federal anything like that, hes also hostile towards the 17th amendment. So in many ways that would allow direct election senators. In many ways his book want to take us back in time quite a bit and to work radical change, but if we want to keep the republic as madison says, i think its best that we try not to politicize the courts, thank you. [applause] well, we at cato never promise our main speakers a free ride and i want to thank professor percival for keeping the tradition alive. Now to tell us why the living constitution should have a state driven through it until it is dead, dead, dead, we will hear a response from randy barnett. Well, the only living constitution is the constitution thats followed. The constitution thats ignored and thats a dead constitution. Thanks professor percival for those insightful and stimulating remarks. I could see that professor was very nostalgic, they were nostalgic remarks and what was he nostalgic for, he was nostalgic for the good old days, we all like the good old days. What were the good old days for professor percival . Back on the days and autojustices agreed each other about how the constitution should be interpreted, yeah, i can imagine when all the justices agreed with each other on how the constitution should be interpreted and at that point appoint a new justice all that really matters are qualifications, if everybody agrees with what the constitution stands for and how it should be interpreted, everything, really turns around qualifications nothing else and then what spoiled who was the dog in the major, who started spoiling all the fun . It was a associate Justice William renquist came on the court. You know what his problem was . He was idealogical, all the other justices up there they werent idealogical. They were just, i dont know, rule of guy law we will call them. They were just neutral. If justice he came on he was idealogical, it was in favor of federalism. That was it. Yeah, thats it. Federalism. Youll notice a strange kind of idealogical commitment to division of power but it isnt idealogical to particular cases. Chief justice rehnquis, the voted to use medical marijuana under principle commitment to federalism. He was commit today federalism. So thats what this terrible idealogical guy and ever since then its only gotten worse. Its only gotten worse because more of these idealogical judges have gotten on the bench arguing for federalism or in the recent case of obama executive action, separation of powers, delegation of powers. We cant have that, thats too idealogical. This way of talking about the problem is that thesis of my book, its not the political outcomes or political preferences as professor referred to them. There are two sides of the court. Really the people who are nostalgic for the old days, are nostalgic for when there was only one side. Now we have a competition. We have two sides and they are roughly with the two different parties, you can reliably count on the democratic parties to appoint justices in the old mode and you can hope the Republican Party might choose people who are oppose to that mode and sometimes they do and sometimes they do and sometimes the people they chose are good and sometimes they are not. What separate it is parties and what separates the justices is not simply a commitment to their political preferences, which the way the professor put it. So its useful to step back and see what separates those two visions. And there are different ways one could explain this and the most effective way to understand this is understanding the difference of we the people as the group and rule majority rule and we the people of individuals in which we the people establish government to secure the rights of individuals, these are two different ways of looking at the constitution and i dont think that the constitution is neutral with respect to the two views. It was deliberately crafted to add here to the views and only can be made into a democratic constitution by ignoring ninth amendment enumeration in the constitution of certain rights shall not be construed or deny others obtained by the people or 14th amendment that shall abridge privileges of citizens of the United States. Two of these provisions that if you came down from mars and you read the constitution, boy, that sounds pretty important and then professor would come along and tell you why it is completely lost in our republican constitution. 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 constitutionist approach to get rid of the parts that get in the way of the democratic constitution. So i think what im hope to go propose is a compromise between the idea that between denying that partisanship plays any roles, which clearly does. Republicans have a different view than democrats, not make it political preferences as to outcomes but competing judicial philosophies as to the constitution. And i will say one more thing in response to how professor percival opened remarks, both of the visions of we the people are attractive and appealing, they really are which is we try to hold both of them in our mind at the same time, popular rule is appealing and individual rights are appealing, for that reason they incorporate elements of the other. The democratic constitution, the progressives who gave tus democratic constitution couldnt live under the regime for ten minutes before they started to make exceptions to judicial for what they called fundamental rights or clarifications of groups, so they immediately qualified their commitment to the democratic constitution specially when the republicans took control of congress in 1946, then, they thought, wait a second, we should rethink that. I talk about that in my book. By the same tone a republican constitution does integrate democratic governance so to speak. The jury is suppose today play that role. In other words, the republican constitution does allow for democratic checks on power, it just doesnt pretend that the democratic checks are the same as the voice of the people. So ultimately the difference between these two visions is what is your rule and what is your exception. The democratic rule is 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, need elections in order to check the power that their government has over them and each side accommodate it is other but what we actually have in the document is a republican constitution. [applause] thank you, randy. We have a brief exchange and we will open it up. He indicated professor barnett indicated maybe kind of nostalgic, maybe the thing im missing most right now i just took my students to an oral argument and the absence of Justice Scalia make oral arguments a lot less entertaining, with respect to rehnq urrcion isti wasnt condemning for having 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 where california. He was truly nonpartisan and nonliberal or conservative in his approach to strongly supporting federalism. Now, with respect to the other justices on the court, i dont think there was, you know, liberal group that was controlling the course of time. Look at my own Justice Byron white, he was one of the two in road v. Wade and miranda. The Supreme Court confirmation process i just brought along statistics with me, i know that president nixon a republican nominated William Rhenquist to the Supreme Court when the democrats had a 54 to 44 majority in the senate. He was confirmed on december 10th, 1971 less than two and a half months later. Its incredible how our system has now gotten to the point where i fear for what will happen next. The democratic elected president and the republicans retain the senate, we like eight justices on the court, we are not even going to consider judge garland or any subsequent nomination until four years later when we have a republican president. We cant do that if we are going to retain our system of respect for the rule of law in independent judiciary. Quick response, randy. I think if the democrats had confirmed robert, somebody who i did not myself support, but who i believe was qualified by every measure that Merrick Garland is qualified, we wouldnt be in the situation that we are today. Chairman biden, judicial philosophy, he said, was ultimately as relevant as what we would call qualifications, judicial philosophy of a legitimate part of the senate eat vetting of appointment of opposite party. Thats all that im advocating and thats all that the republicans in the senate are current i will saying is that judicial philosophy matters in addition to qualifications and this is a sufficiently important matter that given the fact that this has happened during an Election Campaign season its the sort of thing that should be decided by the electorate very shortly and very shortly will be. By not explore judge garlands judicial philosophy . His judicial philosophy is relevant. The point is it would be unfair to him to make it about him. Its not about him. Its about the next choice whomever it may be. But i do think his Court Opinions show that hes committed to the democratic constitution and he will vote in big case it is very same way all the other progressives vote in big cases the way elena cagen votes. I think shes brilliant. But shes quite committed to one vision of the constitution and this is something that ultimately is decided by the political process and elected president and elected senate and they will decide in november. The situation today is unprecedented in the following sense. In the modern era the post 1900 era there have been only four cases of vacancies during that occurred during a president ial election year, two were in 1916, one was in 1932 and one was in 1957. In the first three cases, the senate was in the same party as the president , in the 1956 case it was tad amount to that in the sense when president when chief when Justice Nixon stepped down for health reasons, the same day president eisenhower nominated president william brenon as a recess appointment and 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 with the republicans in many cases and so that was not really relevant either. This situation here is one that is unprecedented in the modern era and its hardly a case in which the president can stand on principle grounds since he joined the filibuster against sam elito in the very first year of the second term of president bush not in a president ial year, moreover when president bush made nine appellate nominations the Democratic Senate sat on nominations for nearly two years and they included such people as john roberts, michael mcconnell, Miguel Estrada and other extraordinarily well qualified people for those appellate seats. Lets go now to your questions and if you would wait for the microphone to get to you and if you would identify yourself and any affiliation that you may have and let me ask you also to 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 little down time as possible. All right, lets start right up here and then lets go secondly to the gentleman in the green shirt right here. Hi, my name is lex and im unaffiliated. My question is for professor barnett. I would like to introduce a sense of reality into this discussion. You talk about restoring the republican constitution, to what extent is it possible in anyway shape or form to do that . Hasnt it been dead since 1938 . I mean, do you imagine that the something theres a court in our future that will reverse and restore enumerated powers or that the ability to regulate everything under the Commerce Clause will be somehow limited . Tell me how the republican constitution gets reinstated or restored somehow. Thats a great question. Chief Justice Rhenquist adopted a strategy which i call the no fire strategy, its an inbetween strategy and that is he said, look, he we will take all expansions of federal power and consider that to be high power mark and if you wanting to beyond that, you better have special justification for doing that and the justification you offer should not also be consistent with Unlimited Power in the hands of congress. And thats what lopez represented, thats what morrison represented, thats what five votes represented in the Health Care Case because mandating you to do buy a particular product congress had never tried before. It was going above that line and justification offered on behalf of it basically said congress can do whatever it wants which has been the dream of progressives have been. Even that was considered to be radical when it was done and the way all constitutional change happens is it happens gradually whether we like it or not. What matters is what direction its going now how fast but what direction it goes and you can certainly slow and limit and then you can stop and then you can gradually roll back and thats the way they happen on a multimember court. The members of which the constituents evolve over time with multiple cases, thats actually how it will happen. But it isnt going to happen unless you understand the difference conceptions to have constitution that are in play as long as you confuse this with political disagreement and not a matter of political principle. Then you see what the ultimate goal should be and then work towards that end. Local attorney. My question is about professors discussion about the declaration, why is the understanding why jefferson used life, liberty and for pursuit of happiness over common phrase life, liberty and property and does that change have any significance of the republican constitution . No one is entirely sure why that change was made, its a matter of speculation. It was done in the course of drafting this over a very short period of time. Theres been speculation, i dont even want to entertain what that speculation is. The formulation of our natural rights was actually george masons draft for the virginia declaration of rights that jefferson was copies from and mason had sent him a copy. I tell the story in the book. Mason had sent him a copy of draft declaration and jefferson had it in front of him when he did life, liberty and for pursuit of happiness. It was actually masons draft that talked about property that was copied by several other state constitutions including the massachusetts constitution and ultimately was masons version that led to the abolition of slavery in massachusetts by the supreme judicial court. So i honestly dont want to speculate about why he changed those words, but it was masons formulation that ultimately became the more version that was spread throughout the United States at that time. Hi, walter with cato center of constitutional studies, a question for both particularly for randy barnett. With the general log jam of constitutional amendment process so that nothing much seems to be getting through, theres been renewed interest in article 5 Constitutional Convention process. I wonder if you could say a little about how and whether this maps on the republican versus democratic idea of the constitution, the idea of calling a convention to amend it . Well, i by the way am involved in article 5 movements and i do endorse article 5 at the end of the book which professor percival mentioned in the course of his comments, i really would depend on what amendments were being proposed. Like the income tax amendment that made constitutional less republican because it generated so much money for the federal government and actually cohorts them into taking part in federal programs otherwise citizens dont get their money back. It wasnt meant to have this effect but it did. Whether in article 5 convention which is perfectly permissible, okay to change the constitution you should the constitution whether that serves democratic or republican ends will depend on substance at such convention. And i favor amendments that would make the constitution more republican in the sense i use it and thats why and theres two purposes of this, one is to correct Supreme Court decisions in a way that the Supreme Court itself is not going to do and the other one to fix some of the problems that we know now exist with the republican constitution which we know its not a perfect constitution. And the point that randy raises and the misuse of misspending in welfare clauses is nicely set forth in james buckleys book saving congress from itself about grants and aid that involve the federal government of congress sending money to the states, picking up 80 of the tab, if the states will only put in another 10 or 20 and then dictating the uses to which that money shall be put in time then removing that money leaving the programs in the hands of the states for projects that had hay spent their own money would public never have chosen so james book that we featured here at cato saving congress from itself addresses that problem in a wide variety of contexts. Bob, you had also some comments on the amendment process. I want to say that randy does a very nice job in his book about covering article 5 convention possibility, whats 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 the convention, the possibility of, you know, wholesale changes in the constitution is very scary to people, should be very scary to people of all political stripes, randy does point out in his book that, of course, they can propose amendments, they still would have to be ratified by the state, i would argue and our current state of politics that theres nothing to justify such a radical step. Of course, it would take only 13 legislative bodies to block any amendments, but during this election season im not sure that that save us. Yes, right here. Can the only mention of republican in the constitution is the guarantied clause. The National Governments obligation to guaranty a republican government to the states, it seems to me what youre suggesting is that the constitution itself is a republican guarantee of National Government and justice of course, we know the republican guarantee clause is rendered irrelevant by chief justice tani but Justice Thomas has recently revived it in the case of apportionment, i would like you to speculate on how this could all Work Together for the restoration of National Republican government . Well, thank you, ken, i havent read Justice Thomas opinion although i read about it. I havent thought through exactly an answer to the question you asked, so i dont want to speculate or too much on cspan about what i might be thinking about this, but i will say that it was after almost after our republican constitution, this one was devised to solve a problem that theyve felt needed solving that virtually every state then copied it. All the states had a variety of different forms, many of which were much more democratic and almost immediately after this was invented, as controversial as this was in getting it passed, it only passed narrowly, thats why all the states have three branches of governments. Theres a few variations amongst our states. Hello, janice, press day america and new software to help keep our judiciary accountable. You mentioned the situation regarding judge Merrick Garland and he should be heard, hasnt he basically impeached himself from having the ability to treat the judiciary correctly when he accused himself of Holding Richard accountable for the rape of a 16yearold as a victim when he was a prosecuting attorney, when he made the decision and not hold the judge accountable and we as americans are going to be paying his salary now with his retirement and this seems to be a pattern in practice with the judges not holding each other accountable when they are selfpolicing. Well, look, i know merrick, i think very highly of him. I am ive heard about the case that youre talking about. I dont know specifically why he he rescued himself. And i do think that the reason why the republicans should not go forward with the nominations has nothing whatsoever has to do with the own personal merit or integrity. I can imagine that he would be a fine Supreme Court justice if i agreed with his vision of the constitution and i would just let it go at that. I will say one thing, one of the concerns he expressed to me in his being nominated is that somehow his reputation might be, you know, dragged through the mud, and i told him that i didnt think that the republicans in the senate had any interest in doing that. And i cant i said i couldnt speak for Interest Groups or activist groups but i didnt think republicans in the senate and as long as they stick to principle that it doesnt matter who is appointed, the decision should be passed november i think we should avoid any personal attacks on judge garland. Tim. Tim lynch with cato, this question can be for both panelists but primarily for randy barnett. You make a strong case for the republican constitution over the democratic constitution, but can you talk a little bit more about the third school that you alluded to which is kind of the result orientated school, which is really the popular view, which is people who if they dont like a law they want the Supreme Court to invalidate it and if they do like a law, they want the Supreme Court to uphold it and its kind of awkward, i know, because to my knowledge no scholar has written a book defending or coming into defense of the third school but its probably the popular understanding in our culture today, i certainly run across it in my travels, so i think its maybe a more powerful school than either the republican or the democratic schools that youve been talking about. Im against. [laughter] we all have our priors, we all all of our instincts about miscase we first hear about is influenced about how we want it to come out. Im like that, youre like that, everybody is like that. We have a rule of law in order to temper our priors, our prior commitments to qualify it to make us run our priors through some other way of analyzing things to see if we are okay, if its justified for us to get our way this time and so sure, we start with our priors and we evaluate constitutional arguments as to whether theyre sur saysive or not but then those arguments are tested against those opponents and our objections to those arguments and eventually we should try to reach consider judgments on whether they fit with the rule of law and not simply with political dispositions, really the main one of the middle messages that im trying to get in the book is what separates people on the left and people on the right within the legal culture is not a pure disagreement about outcomes. Its not what separates the left side of the court from the right side of the court. That more explains the behavior as simply i like this outcome and you like this outcome and we will find a way to rationalize. I think the best example is antonin scalias opinions in cases that came up in 1989 and 1990. He obviously was not a fanover flag burning. As he said afterward his wife was marching around the table singing its an grand old flag. I think the way constitutional law tends to be taught in law school is you have a class discussion and you say flag burning or are you against for flag burning. Make an argument on behalf of your side and they make it out to be in class and anybody who sat through law can testify to this, they came it out to be, you pick what your outcome is and you marshall every in favor of the outcome and the other side does the same thing and a judge would pick which outcome they like, this is the picture or portrait of constitutional law this is taught in law classes so it isnt a surprise that the general public would have this view. But i dont think ultimately it is the way that 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 and its useful for us to focus on that because if we only pick judge that is agree with our outcomes we are going to be disappointed in those judgments if they hold principles adverse to how we think should be constituted. And thats why its ununfortunate if the prescription is we should have much more judicial activism that will encourage lawsuits because you didnt reach my proffered outcome this is unconstitutional. It would really leave things in a mess, so in that sense i think we are far better off if we try to effect change by changing statutes than trying to get the court to create scores of new constitutional doctrines that limit our ability to react to problems. Exactly. I wanted to ask if you think the most practical to restore our republican constitution is following some of the precipitations of charles and his recent book of funding outfits like the institute for justice and other to test in the most demanding way the laws that are on the books in in the states. I only ask it because mr. Lynch, the third approach that he was giving voice to, i dont know if he was for or against it, i just we wanted to put it out here. He wouldnt be here at cato if he were for it. It speaks to how the law is regarded by folks who would not demand that it have any justification, rather i like it like if i like have vanilla or chocolate ice cream. Its a pretty organic from the groundup problem. Well, not the pander too much i would just say this gentleman from Wilson Institute which i have a chapter in the book because in his decision he well articulate it had sovereignty that i favor, in fact, i got the idea from james wilson our most neglected founder. My second pander for institution for justice. I said to him that my i have a new book out. I said what is it about, a big historical treatment, 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 ends. At the end i talk to clark book and list all the cases he talks about in his book as heroic efforts to try to identify arbitrary laws at the local levels, i pander to the institution justice. I do think its very provocative book. 80 pages succinct summation and i recommend as first year law students and for proposal are more workable than others but the idea that there could be free representation to challenge laws that are irrational or arbitrary would be a way of disciplining a state and local level, often times boards and this is a wonderful in a sense market alternative to check that could be put on government power assuming you have judges that are prepare today hear the cases and thats something this book is an effort to get us to. This is a book about what role judges should have and at the end of the book i argue judges do have a role and only if they think they do can the cases that the institute for justice brings be decided fairly. Sir, youve been very patient. David from washington, d. C. When i talk constitutional i never taught it the way that professor barnett describes and im sure neither of the professors of the panel teach constitution that way. James madison had with popular democracy with his documented urging at the Constitutional Convention for proportional representation and against the idea of, argument that he gave up at the convention as a way of political compromise and getting the constitutional passed. Well, there was a lot of back and forth, James Madisons overall scheme did not get adopted as proposed. No ones original scheme got adopted as proposed. Low and behold the representatives from the smaller, less powerful states were opposed to that and to get them on board a xrom iedz had to be made in which the size of your state mattered on one house and the size did not matter on the other house. This is how compromises are done. Madison was representative of virginia. That is really not in conflict to the idea that popular input, for one thing, the senate i dont know what the state of selection was at the time this was being proposed so let me not go there. None of this went against his commitment that the voice of the people which he believed did play a role in government needed to be filtered, needed to be filtered in order to protect the rights of the minority and the individual. He believed that as well. There were filtrations mechanisms that were put in place in all three branches of government in which the voice of the people would be heard but not necessarily decide the question. The house of representatives would be the most Popular Branch of the legislative branch, the jury which had could judge both the law and the facts of the facts and the law in every case would be popular input in the Judicial Branch when the assumption that every case would be a jury case and the president ial selection would be done by a Electoral College that were sent that delegates to which would be elected popularly. A popular input to all three branches. It just wasnt to be confused with a voice of the people, a concept that really did not become popular until the rise of the modern Democratic Party which i talk about in the book in the 1820s and 1830s when they started calling themselves a democracy because they were a party in which the will of the people would be heard. Well, thank you, professorses barnett and percival, securing the liberty and sovereignty of we the people by professor randy barnett. Its available outside for discount and randy will be glad to sign it for you. Its available in better bookstores everywhere and costco. If you if we run out of books outside i always aspired to write a book you could buy in the the airport but even i could imagine i would write a book that you could buy a costco so this has been a huge accomplishment. [laughter] we are going to break for lunch. But before we do, please lets have a warm round of applause. [applause] here is a look at some books that are being published the week. Texas Governor Greg Abbott discusses being paralyzed at the age of 26 helped him with obstacles in his career. Also being released this week mark exploration of the histst history of paper and changing role in the digital age. In the book drive lawrence looks at the birth of automobile in the lives of innovators, attorneys that create it had modern automobile industry. Life of joe gold, widely believed to be writing the longest book ever written. After he died in 1957 in Mental Hospital people began to wonder whether it was golds imagination, look for the titles in bookstores this week and watch for the authors in the near future on book tv