Transcripts For CSPAN2 Book Discussion On Our Republican Constitution 20160604

[inaudible conversations] good afternoon. Welcome to the Cato Institute. Its likely to receive wide because it speaks to divisions about gun control, immigration, affirmative action 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 to better understand and appreciate those service divisions, thats where we have to turn because thats where theyre grounded. And just to be clear, in speaking about republican constitution and the democratic constitution, professor barnett is not making partisan points; rather, as the books subtitle suggests, hes 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, well have a far better grasp of the more 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. Well then turn to Professor Robert percival who will offer a commentary of 15 minutes or so. Ill introduce professor percival just before he speaks. Professor barnett will then respond, well have a brief exchange between the two, and then well turn to questions from you in the audience after which well have lunch upstairs in our george m. Yeager conference center. The book is available, by way, at substantial discount just outside our f. A. Hayek auditorium, and professor barnett will be glad to sign a book for you. Randy barnett is professor of legal theory at the Georgetown University law center where he teaches constitutional law and contracts. Hes also a senior fellow here at the Cato Institute. After graduating from Northwestern University and the Harvard Law School, professor barnett tried many felony cases as a prosecutor in the Cook County States Attorneys Office in chicago. In 2004 he argued the marijuana case of gonzalez v. Raich before the u. S. Supreme court, and in 201112, he represented the 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 universe dad francisco american in guatemala. He delivered the kobe2000 lectures in jurisprudence at the university of tokyo and another university in kyoto. In 2008 he was awarded a guggenheim fellowship in constitutional studies. His publications include more than a hundred articles and reviews as well as nine books including restoring the lost constitution the presumption of liberty, published by princeton in 2005, and legal case books on the constitution and on contracts law. His book the structure of Liberty Justice and the rule of law, published by oxford in 1998, was published also in japanese. Professor barnetts Opinion Pieces appear regularringly in the wall street journal regularly in the wall street journal and elsewhere. He appears frequently in Public Affairs 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, inalienable. He is here to discuss his new book, our republican constitution securing the liberty and sovereignty of we the people. Please welcome professor randy barnett. [applause] well, thank you, roger. Thanks to the Cato Institute for hosting this wonderful event. I look forward to the commentary that were about to receive 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 about a constitution to devise a a convention to devise a new constitution. In september of 1786, he participated in a preliminary convention in annapolis. By 1787 he had secured enough support of Key Players Like George Washington and ben franklin to convene a Constitutional Convention in philadelphia. Now the pressure was on the 36yearold madison. Before journeying to philadelphia, he crammed for the gathering like a student for his exams. From a chest full of books that had been supplied to him by his friend and mentor, thomas jefferson. For the cerebral madison had a truly fundamental problem to solve. Like many others, he had concluded that the american regime, governed by the articles of confederation, was grossly inadequate and contrary to what the virginia declaration of rights referred to as the Common Benefit protection and security of the people. But why was this happening . Why had the republicanism of the founding generation failed them so . 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 the aristocratic few in favor of rule by the democratic many. Under aristocracy if the many are screwed by the few, the democratic or republican alternative was premised on the belief that the people wouldnt screw themselves. This is cook county. This is how we talk in cook county. [laughter] but this republican theory, the people wouldnt screw themselves, had unexpectedly proven to be false. State legislatures had been, had begun enacting debtor relief laws that both undermined the rights of creditors and impaired Economic Prosperity which required a credit market that can safely rely on the obligation of private contracts to collect from debtors. States also erected a debilitating assortment of 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 for the Common Benefit, protection and security of the people. But why not . Now, to answer this question, in april of 1787, largely for his own benefit, madison composed ap 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 the figure out what the game plan needed to be for the upcoming Constitutional Convention in philadelphia. And 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 identified the source of the problem in what he called then injustice of the laws of the state. So, first of all, the problem was that the laws the states were passing were unjust. The causes of this evil, he contended, could be traced to the representative bodies in the states and ultimately, he said, to the people themselves. This, he wrote, called into question, quote, the fundamental principle of republican government that the majority who rule in such governments the safest guardians both of the public good and of private rights. Madison concluded that we must be far more realistic about popular majorities. All civilized societies, he explains, quote are divided into different interests and factions as they happen to be creditors or debtors, rich or poor, husbandmen, merchants or manufacturers, members of different religious sects, followers of different political leaders, inhabitants of different districts, owners of different kinds of property, etc. In a democracy debtors outnumber the creditors, and the poor outnumber the rich. The larger group can simply outvote the smaller one. The majority, however composed he continued, quoting him ultimately give the law. Whenever, therefore, an apparent interest or coon passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority or of individuals . To illustrate this problem, madison posed the following thought experiment. Quote 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 opposed to the rights of the third. Will the latter be secure . The prudence of every man would shun the danger, he said. Likewise, he asked, will 2,000 in a like situation be less likely to encroach on the rights of the 1,000 . In short, under the democratic version of republicanism of the day, there is nothing stopping a majority of the polity from engaging in selfdealing at the expense of 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 a faction and at the same time preserve the spirit and form of popular government is then the great object to which our inquiries are directed. Now, madison was not alone in locating the ills facing the nation in the majoritarian democracies of the states. At the Philadelphia Convention edmund randolph, our first attorney general of the United States, observed that, quote the general object of the convention was to provide a cure for the evils under which the u. S. Labored. And he said, quote, in tracing these evils to their origin, every man had founded in the turbulence and follies of democracy. Elle bridge jerry from massachusetts stated, quote the evils we experience flow from the excess of democracy. Roger sherman of connecticut contended that the people, quote immediately 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 of state legislatures precipitation in congress, changeableness. In every department, excesses against personal liberty, private property and personal safety. Even those who had remains more amenable to democracy 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 have we got . A republic or a monarchy . And franklin is said to have responded, a republic, madam. If you can keep it. But while the new form of government devised in philadelphia was not a monarchy, neither was it democratic. Yet franklin still called it 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 leaving. A republican constitution was no longer a democratic constitution if it ever truly had been. In my book, our republican constitution, i explain how these two fundamentallydivergent 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 hue to some aspect of the democratic constitution and some progressives who adopt aspects of the republican one. Many people, perhaps most people, flit between conceptions depending on which happens to conform to 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 inconsistent visions of we, the people, the first three words of constitution, that lead to two radically different conceptions of popular 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. And the purpose of a constitution is to empower the majority of the people to rule. Idea of we, the people, as a group is the people must rule, we the people must rule as a group, and the only way people can rule as a group is for the majority to do it. Therefore, the purpose of the constitution is to set up a democratic mechanism to express the will of the people. It makes perfect sense. In this scheme unelected judges are problematic because they are thought to thwart 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 constitution views we, the people, as individuals. As the declaration of independence affirmed, we, the people are endowed with certain inalienable rights. Then the next sentence of the declaration and i spend chapter one entirely on the declaration of independence the next sentence says that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed. Not all powers, not Unlimited Powers, but their just powers are what they derive from the consent of the governed. But the purpose of government is to secure the individual rights that the previous sentence had just referred to, the rights to life, liberty and the pursuit of happiness. So in short, under the republican constitution, first come rights and then comes governments to secure the preexisting rights of we, the people, as individuals. And then to insure that government is held to its just powers, the constitution put in writing such as 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 social and economic regulations. And second, by a separation of powers in which the National Powers to make and execute and enforce the laws are placed in separate hands. But in addition, judges too are servants of the people x they have a duty to keep legislators within the, within what the declaration calls their just powers by invalidating irrational and arbitrary laws. After all, we the people cannot be presumed to have consented to delegate to our servants in the legislature the power to arbitrarily or irrationally restrict the exercise of our preexisting rights to life, liberty and the pursuit of happiness. The death of justice Antonin 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, 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 gonzales v. Raich before the Supreme Court 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 while the right side of the court would have voted against so liberal a drug policy. Yet chief Justice Rehnquist and justices thomas and oconnor sided with us while the four most progressive justices stood in opposition. And then we lost 63 when justices scalia and kennedy joined the ranks of the progressives. What was at stake for both sides, however, was not a policy dispute over marijuana, but a difference over constitutional principle. In particular, a principle 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 . Be so, judges if so, judges should generally defer to the will of we the people as expressed by their representatives. Or do we have a republican constitution which the rights of we the people take priority over the diss of their servants in the legislature. And if so, judges have a duty to insure that servants of we the people remain within the constitutional limits on their powers. In raich the liberal justices put their principled commitment to majoritarian rule at the National Level above their compassion for the sick, the suffering and the dying. Kind of have to admire them for that. Conversely, the three conservative dissenters put their principled commitment to constitutionallylimited federal power above their abhorrence of drugs. Now, we cannot be sure why Justice Kennedy joined the liberals, but Justice Scalia made his reasons clear in his separate concurring opinion in raich. Under the necessary and proper clause, he wrote, the court must defer to Congress Judgment that it was essential to reach homegrown and consume marijuana to enforce its ban on the interstate trade. In this way, Justice Scalia adhered to the democratic constitution, judges should defer to the majority of legislatures. In short in raich, 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 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 the regulation of such activities to the states. So in raich six justices hue to the democratic constitution while three were prepared to enforce the text of the republican constitution. Now, the same divide over proper role of judges in forcing enforcing our republican constitution arose ten years later in the obamacare case. But by then the numbers had moved in a republican direction. The four more progressive justices were monolithic in their deference to congress claim of power to require citizens to do business a private company. But now four conservative justices, including both scalia and kennedy, to stood forthrighy in favor of the republican constitutions limits on federal power. As we know, however, the fifth swing vote was by chief Justice Roberts. As i explain in the book and i tell the story of the obamacare case in which todd whos sitting in the second role 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 Roberts holding, that the individual purchase mandates were, indeed, beyond Congress Power under the commerce and necessary and proper clauses. On the other hand, he then invoked the democratic constitutions acceptance 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 deference owed to federal statutes, it can be so read. And he then defended this move by insisting that, quote, it is not our job to protect people from the consequences of their political choices, unquote. Now, perhaps he expected this split the baby approach to be received by conservatives we what anymorety, but it budget. Many on the right 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 thereby protect the liberties of we the people even from a bare majority of congress who enacted obamacare. In this way, the Obamacare Decision was a political Inflection Point in how conservatives conceive of the role of judges. Ever since the rise of modern conservativism, conservatives have been conflicted. On the one hand, up like the left 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 i explain in the book, the doctrine of religious deference was promoted by progress weves precisely to Free Congress and the states from their constraints on legislative power that were in our republican constitution. As a result of chief Justice Roberts upholding obamacare in the name of judicial deference, the trend of opinion among conservatives have moved sharply from judicial conservativism and restraint towards what is best could constitutional conservativism which favors judges enforcing the original meaning of the text even if it means invalidating a popularlyenacted law. With the judicial philosophy of the court now evenly divided, the next appointment will be crucial. For years democratic president s have been adept at selecting justices who adhere without fail to the democratic constitution. In contrast, the record of republican president s has been deeply disappointing. Appreciating the difference between the democratic and republican constitutions helps reveal why this has happened. By selecting judges and justices for their commitment to judicial restraint and deference to the majoritarian branches, republicans have actually been nominating and confirming jurists who adhere 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 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. And it is Standard Operating Procedure for republicanappointed justices in the name of stare decisis to adhere to a postnew deal Supreme Court precedents 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 declarations affirmation that first come the inalienable rights of we 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 legitimacy, but instead that the majoritarianism of 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 and every one. Thanks. [applause] well, thank you, randy. Were now going to have comments from Professor Robert percival. Professor percival is the robert f. Stanton professor of law at the university of Maryland School of law where he has taught since 1987. He is also director of schools environmental law program. Professor percival is a graduate of mcallister college. He earned his m. A. 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 a law clerk were judge shirley m. Hostettler of the u. S. Court of appeals for the ninth circuit and for u. S. Supreme Court Justice byron white. He also served as a special assistant to the first u. S. Secretary of education. Professor percival is internationally recognized as a leading scholar and teacher in environmental law. Since 1992 he has been the principal author of the countrys most widelyused case book in environmental law, environmental regulation law, science and policy, now in its seventh edition. And hes the author of more than a hundred publications that focus on environmental law, federalism, president ial powers, regulatory policy and legal history. Professor percival has taught as a visiting professor of law at the Harvard Law School and at the Georgetown University law center. He has taught and lectured extensively in china and has taught and lectured altogether his bio tells us in 29 countries on six continents. I gather youve missed antarctica. They never invited me. To lecture . I see. [laughter] okay. You dont speak penguinese. [laughter] this is professor percivals second visit in the last three months, and were delighted to have him. Please welcome Professor Robert percival. [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 ones 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 fact that its 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 reigns supreme. The communist party gets to decide what cases the courts will hear and often how theyre going to be decided. When i teach constitutional law, i usually start with the following historical proposition. I say what our towning fathers were 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 despotic 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 individual liberty so that we wont face the situation that we faced when we were under the thumb of king george . And their solution, as randy indicated, was two things; federalism and separation of powers. Divide powers among the judiciary, the legislative branch and the executive unitary executive, they decided upon and have dual sovereignties, federal and State Governments. 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, very access my, tells some great historical stories x 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 to tends to push us into further division. In fact, i think that while hes demonstrating that its possible to view the same document in two widely different ways, what we have today is an understanding a that the constitution both protects individual rights, and it allows government 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 lines 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 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 scholars said you dont have a prayer of succeeding on this, but after it was embraced by a major Political Party in the Supreme Court and in the lower courts among judges that had been appointed by republican president s, it got a much more favorable reception, and but for chief Justice Roberts deciding it was unconstitutional it was constitutional as a tax, 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 he was asked what is your view of the role of the judge, and he said, it is to decide cases. [laughter] he was confirmed by a voice vote of the senate a few weeks later. My, how things have changed since then. We now have knockdown, dragout, ideological 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 court should not defer to administrative agencies. At various times in recent years, precisely because congress has not been very active in passing a lot of legislation particularly in the environmental area where most of my scholarship is the way that change is brought about is through litigants coming up with clever, new theories to try out on courts and try to sell the court, that a law thats been working well for decades should be struck down on constitutional grounds. The classic case of that was the American Trucking case from 2000 where a two threejudge panel of the d. C. Circuit votes 21 that the Clean Air Act was unconstitutional oniondelegation grounds. And when that case came up to the Supreme Court, it was quickly realized that would be a pretty radical change. It would basically strike down most all of the 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, require cost benefit analysis for everything. Professor barnett advocates for a system where individuals anytime anything affects their liberty 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 its 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. Theyll be heard by the d. C. Circuit on june 2nd. I submit that thats a better way of dealing with this than letting each individual try to force the government without any presumption 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 clerking on the Supreme Court, the court was not idealogically split, but there was one justice, a new justice, william h. Rehnquist, who had a real ideological agenda. As a result, Justice White would always make two clerks read anything that came there rehnquists chambers. And we, in 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 Justice Rehnquist what decision are you most proud of. And he said National League of cities v. Usury, a case with a 54 majority. The court had struck down federal wage and hour legislation as applied to State Government employees. And we said why are you so proud of that . He saw said i view it as an agent he said i view it as an agent in place. He had as an agenda, and he made this quite explicit in his early dissent, an agenda to restore limits on federal power. And he eventually 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, send a shot over the bow of congress to say you need to be much more careful in defining why what youre regulating substantially affects interstate commerce. Now, just a few days before Justice Scalia died, chief Justice Roberts in a talk at new England Law School said that partisan extremism damaging the publics perception of the role of the court. He said that particularly given the increased politicization of the confirmation process, the public starts thinking about the Supreme Court 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, to dont bother. So dont bother. This was truly unprecedented, the idea of no hearings, no nothing, were not even going to consider it, who you nominate. And president obama surprised lots of people by moderating by nominating a justice who is agreed to be very well qualified by virtually everyone, and yet the senate will not even hold hearings on the nomination and even though judge garland was a classmate of randy barnetts, and he agrees that hes a very smart, qualified person, he says being qualified is no longer enough. Well, what is you have you wt is enough . What is enough is that, apparently, the Republican Party now feels like we should just blind ourselves, not let the public hear the views of justice garland at these 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 maybe many of you would not share justice garlands preferences with respect to how certain cases would be decided, that you would realize what a shameful situation this is when we have such intense politicization 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 when we get our fifth justice whos going to decide everything our way because hes beholden to the Republican Party, witness the condemnation by the rightwing and the tea party of chief Justice Roberts whos an excellent justice in the tradition of trying to maintain respect for the rule of law just because in one case he didnt buy the preferred political outcome of what they wanted. Professor barnetts colleague, david cole, has a new book out called engines of liberty where he illustrates how the way constitutional change happens whether its for gun rights in the heller case or merits equality Marriage Equality in to bear fell case is 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 cole says responsiveness of constitutional law to the evolution of social norms is a historical fact, and given the openended character of many of the constitutions guarantees, it is inevitable. I submit 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 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 repeal the 16th amendment, and those of us who signed checks on monday to send to the irs, that certainly sounds appealing, to eliminate federal income tax [inaudible] hes also hostile towards the 17th amendment. So in many ways, that would allow direct election of senator. So in many ways, his book wants to take us back in time quite a bit and to the work radical change. But if we want to keep the republic, as madison says, i think its best 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 living constitution should have a stake driven through it until it is dead, dead, dead [laughter] well hear a response from randy barnett. Well, as ed meese once said, the only living constitution is a constitution thats followed. A constitution thats ignored and followed, thats a dead constitution. So, no, im in favor of the living constitution, the one thats in the cato constitution. Well, thanks, professor percival, those very kind those very insightful and stimulating remarks. I could see that professor percival was very nostalgic. They were nostalgic remarks. And what was he nostalgic for . He was nostalgic for the good old day. We all like the good old days, right . Were at the age when the good old days look so good. What were they for professor percival . Back when he clerked on the court, and all the justices agreed with each other on how the constitution should be interpreted. Yeah, i can imagine when all the justices agreed with each other, then at that point and 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 with what the constitution stands for and how it should be interpreted, everything turns on qualifications, nothing else. And then what spoiled, you know, who was the dog in the manger . Who started spoiling all the fun . It was associate Justice William rehnquist came on the court. And you know what his problem was, according to professor percival . He was ideological. All those other justices up there, they werent ideological. They were just, i dont know, rule of law guys . Well call em. Maybe just neutral. If chief justice if associate Justice Rehnquist, he came on, he was ideological. And what was the ideological in favor of as professor percival tells us . It was in favor of federal itch. That was it. Federalism. That was it. Yeah, thats how he was ideological. But youll notice its a strange kind of ideological commitment. Its commitment to a division of power between the federal and the State Government. Well, you can call that ideological, but it isnt ideological with respect to the outcomes of particular cases. Chief Justice Rehnquist voted for angel raich and dion man szobs claim to be mansons claim you should 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, and ever since then its only gotten worse, because more of these ideological judges have gotten on the bench arguing for things like federalism or, in the recent case of the obama executive action orders, separation of powers. Or the delegation of powers. We cant have that. Thats too ideological. Well, one of the antidotes to this, i think, is the thesis of my book. An antidote to this way of talking about the problem is the thesis of my book. Its not the political outcomes or the political preferences as professor sandoval referred to them that differentiate there are two sides to the court now, and really what the people who are no nostalgic for the old days is when there was only one side. Well, now we have a competition. We have two sides, and they are roughly coterminus with the two different parties. You can reliably count on the Democratic Party or to appoint justices in the old mode. And you can kind of hope that sometimes the Republican Party might choose people who are actually opposed to that mode, and sometimes they do and sometimes they dont, and sometimes the people they choose are good and sometimes theyre not. But what the antidote to this way of thinking is in my book is that what separates the parties and the justices is not simply a commitment to their political preferences which is the way that professor sandoval put it, as the way most people put it. Its a commitment to two different visions of the constitution. So its useful to step back and see what separates those two visions. And there are different ways one could explain this, and i just, in my book, decided that the most effective way of understanding this was to understanding the difference between we, the people as a group in which we, the people should spectrummivety presumptively be able to rule by majority rule, and we the people as individuals in which we the people establish government to secure the rights of the individual. These are two different ways of looking at the constitution. And i dont think that the constitution is neutral with respect to these two views. I think it was deliberately crafted to adhere to the second of these two views. And it only can be made into a democratic constitution by ignoring key passages of its text like, for example, the ninth amendment that says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people or the 14th amendment which says no state shall make or enforce any law that abridges the rights of a citizen of the United States. You would think, boy, that sounds pretty important. And then somebody would, professor percival could come along and tell you why it is these two provisions are not enforced by the Supreme Court or by anyone else, and they are completely lost in our 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 constitutionalist approach to get rid of the parts that get in the way of the democratic constitution. So i think what im hoping to propose is a compromise between the idea that, between denying that partisanship plays any role which it clearly does. Republicans have a different view than democrats, and identifying what that difference is about. Not making political performances 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 his remarks. Both of these visions of we the people are attractive and appealing. They really are. Which is why sometimes we try to hold both of them in our mind at the same time. Popular rule is appealing, individual rights are appealing. And for that reason, both positions actually incorporate elements of the other. The democratic constitution the progressives who gave us the democratic constitution couldnt live under that regime for ten minutes before they started to make exceptions to judicial deference for what they called fundamental rights or what they called suspect classifications of groups. To they immediately qualified their commitment to the democratic constitution, especially when republicans took control of congress in 1946. Then they thought, well, wait a second, this judicial restraint thing, maybe we should rethink that. I talk about that in my book. By the same token, a republican constitution does integrate democratic governance, so to speak, 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 supposed to play that role. In other words, the republican constitution does allow for democratic checks on power, it just doesnt pretend that these democratic checks are 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 majoritarian rule, and they will give you select exceptions to that that they get to choose. The republican rule is the rights of 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 so each side really accommodates the other, but what we actually have in the document is a republican constitution. [applause] thank you, randy. Bob, would you like to you can do it right are from there. We just have a brief exchange, and then well open it up. Professor barnett indicated i may be kind of nostalgic. Maybe i am. Actually, the thing im missing most right now, i just took my students to an oral argument, and the absence of Justice Scalia makes oral arguments a lot less entertaining. With respect to rehnquist, i wasnt con chemming him for condemning him for having a strong ideological 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 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 in its state, the whole rest of the court would say it was a violation of the dormant clause, but not Justice Rehnquist. He was truly nonpartisan and nonliberal or conservative in his approach. He wasnt the least bit resultsoriented in his approach to strongly supporting federalism. Now, 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. Look at my own justice, byron white. The only justice appointed by president kennedy, he was one of the two dissenters in roe v. Wade, and he also was a dissenter in miranda. Finally, with respect to the Supreme Court confirmation process, i just brought along some statistics with me. I note that president nixon, a republican, nominated William Rehnquist to the Supreme Court on october 22, 1971, when the democrats had a 5444 majority in the senate. He was confirmed on december 10th, 1971, less than two and a half months later. So its incredible how our system has now gotten to the point where i fear for what will happen next. The democrat if a democratics elected president democrats elected president and the Senate Remains under republican control, oh, we like only eight justices on the bench . We cant do this if were going to retain our system of respect for the rule of law and an independent judiciary. A quick response, randy. I think if the democrats had confirmed robert bork, somebody who i did not myself support, but who i believed was qualified by every measure that Merrick Garland is qualified by, then i dont think we would be in the situation we are in today. But at that time the Senate Judiciary committee chairman, biden, said at time manager i agreed with at the time, and that is judicial philosophy, he said, was ultimately as relevant as what we would call qualifications. Judicial philosophy was a legitimate part of the senates vetting of a president s appointment from the opposite party. And thats all that im advocating x thats all that the republicans in the senate are currently saying, is that judicial philosophy matters in addition to qualifications and that 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 it very shortly will be. But why not hold hearings to explore judge garlands judicial philosophy . Because his judicial philosophy, i mean, its relevant, but the point is that we 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 mom mean a democratic president might put forward. But i do think he is, his Lower Court Opinions show hes completely committed to the democratic constitution, and he will vote in big cases the very same way all the other progressives vote, the way elena kagan votes, and i have utmost regard for elena be kagan. 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, an elected president and an elected senate. And they will decide it in november. The situation today is unprecedented in the following sense in the modern era, the post1900 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 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 chief when justice mixson stepped down for Health Reasons the same day president eisenhower nominated president William Brennan as a, as a recess appointment. Eal bascomb so that was not really relevant either. This situation here is one that is unprecedented in the modern era. It is hardly a case in which the president can stand on principle grounds since he joined the filibuster against sam olito in the very first year of the secondterm of president bush not in a president ial year. Moreover, we seem to forget when president bush made nine appellatet Court Nominations on may 9th, 2011, the democratic sentate sat on those nominations for two years and included such people as john roberts, Michael Mcconnell and other extraordinary well qualified people for those seats. Lets go 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 why one person is asking a question let me know you want to ask a question so we can get the mic to you and have as little down time as possible. Lets start right up here and then lets go secondly to the gentlemen in the green shirt right here. Hi, i am lex mccuster, i am unaffiliated. My question for professor barnett, i would like to introduce a sense of reality into this constitution. You talk about restoring the republican constitution. To what extent is it possible, in any way, shape or form to do that . Hasnt it been dead since 1938 . Do you imagine Something Like there is a court in the future that will reverse hellverine and restore the enumerated powers or the ability to regulate everything under the Commerce Clause will be limited. Tell me how the constitution gets reinstated or restored. That is a great question. You talk about the quest strategy, and they said all three expansions of federal power and consider that to be a high marker of federal power. If you want to go beyobd that you better have special justification for doing that and the justification you offer should be consist want with Unlimited Power in the hands of congress. That is what lopez represented, morrison, and rachel was a backing away from. Man dating you to buy a particular Congress Never tried before was going that line and average justification offered on behalf of it said congress can do whatever it wants which is the dream list of progressives. Holding the line was even considered to be radical. Constitutional change all happens gradually whether we like it not. What matters is the direction it goes. You can slow, limit, then stop, then gradually roll back. That happens on a multi member court, the members evolve over time, with multiple cases. That is how it will happen. It isnt going to happen unless you understand the difference conceptions of the constitutions that are in play. As long as you confuse this with political disagreement and not political principle it is not going to happen. You will see the ultimate go and then work towards that end. Andy hawk, i am a local attorney. My question is about professor barnetts definition of the declaration. Why did jefferson use life, liberty and happiness over the other phrase life, liberty and property . No one is entirely sure why that change was made. It was done in the course of drafting this over a very short people of time. There has been speculation and i dont even want to entertain what that speculation was. George masons draft for the virginia declaration of rights is what jefferson was copying from. Mason sent him a copy of the draft and jefferson had it in front of him when he did the life, liberty and pursuit of happiness. The property term was copied by other states including the massachusetts constitution and it was masons version ultimately that led to the abolition of slavey slavery in massachusetts. It was masons formation that became the more common version that was spread throughout the United States at that time. Olsen with catos center for constitutional studies. A question for both professors particularly randy barnett. With the general log jam of constitutional amendment process, nothing much seems to be getting through, there has been a boom renewed interest in article five. I wondered if you could say a little bit about how and whether this maps on to the republican versus democrating idea of the constitution. I am by the way involved in some article five movements and do endorse article five at the end of the book which is mentioned in the course of the professors comments. It would depend on what amendments are being progress proposed. We had progressive amendments that made the 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 actually coherce them in taking part of the programs otherwise citizens dont get their money back. Whether an article five convention, which is permissible and okay to change the constitution, whether that severs democrats or republicans, is decided by the amendments. I favor amendments that would make the constitution more republican. There is two purposes of this. One to correct Supreme Court decisions in a way the Supreme Court itself is not going to do and the other is to fix the problems we know exist with the republican constitution which is not a perfect constitution. And the point randy raises with respect to the 16th amendment and the misuse of the spending and general welfare clauses is nicely set forth in james buckleys book saving congress from itself about grants and aids that involve congress sending money to the states and picking up 80 of the tab if the states only put in another 1020 percent and dictating the usages to which that money shall be put in time then removing that money leaving the programs in the hands of the states for projects had they spent their own money the republic wouldnt have chosen. James buckley book, we featured here at cato, saving congress from itself, addresses that problem in a wide variety of context. Bob, you have comments on the amendment changes. What is scary is given the incredibly strange state of politics today, as randy indicates, it would depend on who is going to be at the convention, the possibility of wholesale changes in the constitution should be very scary to people all of political stripes. Randy does point out of course they can propose amendments but they would have to be ratified by the state and i would argue our current state of politics there is nothing to justify such a radical step. Of course, it would take on the 13 legislative bodies to block any amendments during this election season i am not sure that would save us. Yes, right here . Ken, johns hopkins, the only mention of republican in the constitution is the guarantee clause. The National Governments obligation to guarantee a republican government to the stat states. It seems to me you are suggesting the constitution is a republican guarantee to the national government. Of course, we know the republican guarantee clause was rendered irrelevant but Justice Thomas recently revised it. So i would like you to speculate on how this could all Work Together for the restoration of National Republican government. Thank you, ken. I actually havent read Justice Thomas opinion yet although i have read about it. I havent thought through exactly an answer to the question you asked. I dont want to speculate too much on cspan about what i might be thinking about this. But it was almost immediately after our republican constitution was devised to solve a problem they thought needed solving and virtually every state copied it. Many were more democrat and as controversial in getting this past, within a few years, every state immolated this form of government. That is why all states have three branches of government. There is a few variations among the state but the meaning of republican government changed toward this form of government away from the democratic governments that dominated states before. Hello, janis, present day america and jam justice, new software to keep the judiciary accountable. You mentioned the situation regarding judge garland and if it should be heard. Has want he impeached himself from having the ability to treat the judiciary correctly when he recu recused 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 and we as americans will pay his salary with retirement. There is a pattern and practice of the judges not holding each other accountable when they are self policing. Look, i know garland, i think highly of him. I have heard about the case you are talking about. I dont know specifically why he recused himself. I do think the reason why the republicans should not go forward with nominations has nothing whatsoever to do with his only personal merit or integrity. I can imagine he would be a fine Supreme Court justice if i agreed with his vision of the constitution. I will let it go with that. One of the concerns he expressed to me in his being nominated is somehow his reputation might be dragged through the mud. I hold him i didnt think republicans in the senate had any interest in doing that. I said i could not speak for interest or activist groups but i dont think the republicans in the senate did and as long as the republicans stick to the principle that it doesnt matter who is appointed, the decision should be put off past november, i think we should avoid any personal attacks on judge garland. Jim . Tim lynch with cato tim . This question is for both panelist but primarily randy barnett. You make a strong case for the republican constitution over the democratic constitution but can you talk about the resultoriented school, which the poplar view, and people if they dont like a law, they want the Supreme Court to invalidate it. If they do like a law, they want the Supreme Court to uphold it. No scholar has written a book, defending or coming to the defense of this third school, but it is probably the poplar understanding in our culture today. I certainly run across it in my travels. So i think it may be a more powerful school than either the republican or the democratic schools of thought you have been talking about. I am against it. We have all our priors. We all have our instinct about cases we hear about are influenced by how we want that to come out. I am like that, you are, everybody is like that. We have a rule of law in order to temper our prior commitments, to qualify and make us run our priors through another way of analyzing things to see if we are okay and it is justified to get our way. We start with our priors, sure. We evaluate constitutional arguments as to whether or not they are persuasive, then they are tested, and we have we should try to reach considered judgments eventually on whether they fit with the rule of law and not skwus just predisposition. One message i am trying to get through in the book is what separates loose respects people on the left and right within the legal system and culture is not a pure disagreement over outcomes. It is not what separates the left side of the court from the right side of the court. Sure, they are all rooting interest in this outcome or that outcome, but what general separates them is a commitment to one vision over the other. The republican constitution or the democratic constitution, which one is the vision that motivates them . That more explains their behavior that looks partisan than simply i lick this outcome we will figure out a way to rationalize it. I think the best example of that and Antonin Scalia opinions in the two flag burning cases from 1989 and 1990. He was obviously not a fan of flag burning but found the law unconstitutional and as he said afterward when he went down for breakfast that morning his march was marching around the table singing it is a grand ole flag. I think constitutional law professors a somewhat at fault for this because i think the way constitutionalal law tends to be thought even in law school is you have a class on flag burning, are you for or against flag burning, make an argument on behalf of your side, you make an argument on behalf of the other side, and they make it out in class to be look, you pick what your outcome and the other side does the same thing then are a judge picks which outcome they like. This is the picture or portrait of constitutional law that is taught in constitutional law classes so it isnt a surprise that the general public has this view if the constitutional law is thought that way. But i dont think it is the way the justices ultimately decide cases. I am saying they are committed more to the principles of the constitution. They just disagree in a partisan way over what those Palestini Palestinian principles are. If we only pick judges we think agree with our outcomes we will be upset if they have adverse opinions. Statutes are much easier to change than the constitution is to amend and that is why it is unfortunate if the prescription is we should have more judicial action of lawsuits claiming because you didnt reach my preferred outcome this is constitutional. In that sense, i think we are far better off if we try to change statutes than get the court to create scores of new constitutional doctrines that limit our ability to react to problems. Gary with the james wilson institution. I wanted to ask if you thought maybe the best practical way to restore to constitution is following the prescriptions of Charles Murray in his recent book and funding outfits like the institute for justice, and other institutions . I only ask because mr. Lynch, i think the third approach that he was giving voice to, i dont know if he was for or against it he would not be here at cato if he were for it. It speaks to how i think the law is regarded by folks who would not demand that it had any coherent, rational justification. Whether it is i like it like as if i like vanilla or chocolate ice cream. I would ask you if you think the approach, that doesnt seem to be cooked up by, you know, law professors. I think it is pretty organic from the ground up. Eyebrow threaders in texas, dental hygiene in north carolina, seem to be practical problems in the real world. I was wondering if you could articulate how those cases could restore the constitution. Not to pander too much i will say this gentlemen is from the James Wilson Institute and j a chapter where johnson is prominent because he talked about the poplar idea of sovereignty that i favor and i got that idea from james wilson, our most neglected founder. My second panel is for the institute of justice. I ran into somebody from ij last night and i said i have a new book out. And he said what is it about . And i said it starts at the founding, tells the entire story of the United States that cu culmina culminates in the institute for justice. At the end, i talk about clark nellys book terms of engagement and list the cases he talks about in his book as heroic efforts to try to identify irrational and arbitrary laws at the local level. I pander to the institute for justice and Charles Murray and his book is the last pander. I think the first 80 pages are one of the most summations for firstyear law students and i recommend it because it is an overview of all the law they will be learning and what is wrong with it. I think some of his proposals are more workable than other. But the idea of free representation to challenge laws that are irrational or arbitrary would be a way of disciplining administrative agencies at the state and local level. These are boards ndominated by industry people. This is a sense to market alternative to a check that could be put on government power assuming you have judges who are prepared to hear the cases as magistrates and that is 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 in screening out irrational and arbitrary laws and only if they think they do and the institute for justice brings be decided clearly. David from washington, d. C. When i taught constitutional law i never taught it the way professor barnett describes and i am sure never of the professors on the panel teach constitutional law that way. Can i hear something to reconcile the discomfort you described James Madison had with poplar democracy for the document of him urging proportional representation and against malproportion senate that eventually gave up on. No ones original was adopted. Low and behold the representatives from the smaller, less powerful states were opposed and to a compromise had to be made in which the size of your state mattered in one house and didnt in the other house. This is how compromises are done. Madison was a representative of virginia and he looked out for virginias interest in doing that. That really is not in all conflict with his other commitment to the idea that poplar input, for one thing, the senate, i dont know what the state of selection was at the time this is being proposed so let me not go there. None of this went against his commitment that is the voice of the people, which he believed played a role in government needed to be filtered. It needed to be filtered in order to protect the rights of the minority and individual. So he felt mechanisms were put in place in all three branches in which the voice of the people would be heard about not necessarily decide the case. The house of representatives would be the most poplar legislative branch, the jury that could judge the fact and the law in every case would be poplar input into the Judicial Branch when the assumption was every case would be a jury case, ask the president ial selection would be done by an Electoral College with delegates that were selected by popilarity. This concept was poplar until the 1820s and 1830s when they started calling themselves the democracy because they were the party in which the will of the people would be heard. That one party and only that one party. Thank you, professors. Our book again is our republican constitution securing the liberty and sovereignty of we the people by professor randy barnett. It is available outside for discount and randy will be glad to sign it for you. It is available in better bookstores everywhere and costco if we run out of books outside. I always aspired to write a book you could buy in the airport but even i never imagined i would write a book you could get at costco. This has been a huge accomplishment. We are going to break for lunch in the second level of the spiral staircase at the George Conference Center there but before we do lets have a warm round of applause for our guests. [applause] you are watching booktv on cspan2 two. Television for serious readers. Tonight, we kick off the evening at 7 30 p. M. Eastern with Hunter S Thompson who remembers live with his father. And then former state Department Official emanuel talks about the growing influence of china and india. Michael peach talks about his publishing career at 9 30 p. M. Eastern. At 10 00 on booktv after words, Senate Majority leader Mitch Mcconnell discusses his book the long game. And we finish at 11 00 with neal bascomb and the plan to destroy norways nuclear facility. That happened tonight on cspan2 booktv. Now i am pleased to introduce john elder and dr. Leon who is a dean at Harvard Medical School and served add chief of division of cognitive