Transcripts For CSPAN2 Book Discussion On Our Republican Constitution 20160702

Good afternoon, welcome to the cato institute. Im the director of cato center for constitutional studies and your host for todays forum on professor Randy Barnetts new book, republican constitution securing the liberty and sovereignty of we the people with forward by george will. Let me also welcome our cspan audience as well as those watching through cato live streaming. Released just two days ago by harper column broad side this book is sure to receive wide attention and deservedly so, i just learned that its available at costco to people who are watching this on cspan can after this forum run right out and pick up a copy of the book. Its likely to receive wide attention, as i said because it speaks in a fundamental way to the political divisions we see in america today, divisions about health care, gun control, affirmative action, immigration and so much more. But 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 surface divisions, thats where we have to turn because thats where theyre grounded. Just to be clear in speaking about the democratic constitution professor barnett is not making partisan points rather as the books subtitle subjects, its alluding to two different understandings of the constitutions first three words, we the people. Perception that is have deep roots in constitutional history and far reaching implications for political order. Once we understand those basic differences we will have a far better grasp of the more immediate issues they so divide us as the 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 and then professor barnett will then respond and we will turn to questions from you in the audience after which we will have lunch upstairs at our Conference Center. The book is available by the way at substantial discount just outside the auditorium and professor barnett will be glad to sign a book for you. Randy barnett is the water house professor of legal theory at the Georgetown University center where 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 the Harvard Law School, professor barnett tried many felony cases as a 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 represented federation of business in 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 the university francisco american in guatemala. He delivered the cobey lectures at the university of tokyo and university in kyoto. In 2008 he was ordered fellowship in studies, his publications include more than 100 articles and reviews as well as nine books including restoring the lost constitution, the presubjects 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 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. He is here to discuss his new book, republican constitution securing the liberty and sovereignty of we the people, please welcome professor Randy Barnett. [applause] thank you, interrogatorier and thanks to the cato institute. In 1789 James Madison had a problem. Madison hat had worked tirelessly to device a new constitution. In september of 1786 he participated in a convention in minneapolis. Now the pressure was on the 36yearold madison. He crammed for the gatt gathering and for the madison had a 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 Common Benefit protection and security of the people. But why was this happening . Why had the republicanism of the founding generation failed themselves . For the previous years State Governments under confederation were thought to be republican. The founders had thrown off rule by the few and under, this is cook county, this is how we talk in cook county. This republican theory that people wouldnt screw themselves had unexpected proven to be false. State legislators had been he gun debtor relief law that is jushed mine the rights of creditors and impaired Economic Prosperity which required a credit market that can rely on private contracts to collect from debtors. States also erected dibilitying number to protect businesses from competing numbers in neighboring states. The result was an economic downturn, a really great depression. So republican government as it was then conceived was not working for the Common Benefit protection and security of the people but why not . Largely for his own benefit, madison composed on 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 con snrepcion convention in philadelphia. What was the problem . The laws that the states were passing were unjust. The causes could be trace today representative bodies in the states and ultimately he said to the people themselves. Fundamental principle that the minority that rule in such governments are the safest guardians of public goods and private rights. Madison concluded, that we must be far more realistic about popular majorities. All civilized societies he explained, quote, are divided into different interests and factions as they happen to be creditors or debtors, rich or poor, merchants or manufacturers, members of different religious, followers of different political leaders, owners of different kinds of property, et cetera. In a democracy, the debtors outnumber the creditors and the poor outnumber the rich. The larger group can simply outvote the smaller one. 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 thought experiment, the interest of each fends 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 . Like wise, he asked, will 2,000 in a situation be less likely to encroach upon the rights of the one thousand. In short, under the democratic version of republicanism of the day theres nothing stopping a majority of the policy dealing at the expense of the minority. 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 goods of private rights and at the same time preserve the spirit and form popular government is then the great object of which to which our inquiries are directed. Now, madison was not alone in locating the ills facing the nation in the state. Our first attorney general of the United States observed that quote the generaobject of the convention was to provide a cure for the evils under which the u. S. Labored and he said in quote n tracing these evils to their organize in, every monohad founded in turbulence of democracy. Roger sherman of connecticut, little to do of the government. In every department excesses against personal liberty, private property and personal safety. Even those who had remained more amendable to democracy like george mason of virginia admitted that quote, we had been too democratic in forming State Governments. At the conclusion of the Philadelphia Convention anxious citizens gathered outside of Independence Hall to learn 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, dr. , what we have a republic or a monarchy . Franklin respond a republic, madame, if you can keep it. Neither was a 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 leading. A republican constitution was no longer a democratic constitution, if it ever truly had been. In my book, our republican constitution, i explain how the two fundamentally versions of the constitution divide us even today. I call these diversion views the democratic constitution and the republican constitution but i dont intend these labels to be partisan. There are political conservatives who to some 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 whichever happens to conform on a particular issue. I contend that what divides those who add here to a democratic constitution from those who favor a democratic constitution, inconsistently visions of we the people. The first three words of the constitution that lead to two radically perceptions of sovereignty. 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. 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 that people can rule as a group is for a majority to rule, how else are they going to do it . And therefore the purpose of the constitution to set up a democratic mechanism to set up the will of the people. In this change, its unproblematic. In contrast, a republican constitution views we the people as individuals, as the declaration of independence affirmed, we the people are in doubt with certain unalenable constitutions. Deriving their just powers from the consent of the government. Not all powers. Not Unlimited Powers but just powers are are derived but the purpose of government is to secure the individual rights that the rights of life, liberty and for pursue of happiness. 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 ensure that government is held to its just powers the constitution is put in writing such as this to provide the law that governs those who govern us. We are all governed by law that is are made by governmental agencies, but this is the law that governs those who govern us. 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 it and execute and enforce the laws are set in separate hands. Judges too are servants of the people and have the duty to keep legislators within within what the declaration calls their just powers by invalidating irational and arbitrary laws, after all we the people cannot assume in the legislature the power to arbitrarily or irrationally. The death of judge scalia has raised the issue that should be at the forefront of any campaign but usually isnt and that is the future of the Supreme Court and our constitution. As a result of his death, selecting selecting the next justice is already a prime topic of the ongoing president ial contest, but now is the time to be clear on the nature of the dhois we face. Most assume that the current divide on the court is political in the sense that the left side favors progressive while the right side serves conservative ones, but thats not truly the case. When i argued the case of gonzalez in 2004, one might have supposed that the left side would have favored my client who sought to use medical california by law while the right side would have voted against a liberal drug policy. Yet, chief justice ranquist sided with us while the more progressive justices stood in opposition and then we lost 6 to 3 when i know Justice Scalia and kennedy joined the ranks of the progressives. In particular disagreement over 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. The liberal justices put their principle commitment to National Level above compassion for the sick, the suffering and the dying. Kind of have to admire them for that. Conversely, the three conservative defenders put commitment to constitutionally federal power above drugs. We cannot sure why Justice Kennedy joined the liberals, but Justice Scalia made his reasons clear in separate opinion. Under the necessary and proper clause he wrote, the court must defer to Congress Judgment to enforce its ban on the interstate trade. In this way, Justice Scalia adhere 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 the scope of Congress Power under the commerce and necessary proper clauses but three justices were prepare today 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 six justices to the democratic contusion while three were prepared to enforce the tax of the republican constitution. 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 four more progressive justices were monolithic in 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 constitutions limit on federal power. As we know, however, the fifth swing vote was by chief Justice Roberts. As i explain in the book and tell the story about the obamacare case, 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 invoke it had democratic constitutions conception of judicial constraint adopting 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 owed to federal statutes, it can be so red. And he then defended this move by insisting that, quote, it is not our job to protect the people from the consequences of their political choices, unquote. Now, perhaps he expected this split debate to be received by conservatives with equalmimity. Because that i believe it was the judge of the Supreme Court to enumerated powsers and protect the liberties of we the people even from a 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 conservatism, conservatives have been conflicted. On the other hand, many have long professed restraint, yet ironically as i explain in the book was promoted by political progressives precisely to Free Congress and the states from the constraints on their legislative power that were in our 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 conservative to what is best called constitutional conservative which favors judges enforcing the original meaning of the text even if it means invalidating a popularly enacted law. With the judicial philosophy of the court now evenly divided the next appointment will be crucial. For years democratic president s have been to selecting justices that adhere to the democratic constitution. In contrast republican president s have been deeply disappointing. Appreciating the difference between democratic and constitutions helps reveal why this has happened. By selecting judges and justices for commitment to the branches, republicans have actually been nominating and confirming. At least when the chips are down. No matter how much conservative justices might process, 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 incline to refuse to enforce the constitutional text against the congress or president as chief roberts did when he turned around and adopt it had safe haven construction that change it had meaning of the statute so he could uphold it. Adhere to a post new deal precedents that has overwritten texts of the constitution. Restoring our Constitutional Republic would require a republican president who will. A republican president who will seek out judges and judges who appreciate the declarations affirmation that first comes rights of people and 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 its 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, we are now going to have comments from Professor Robert percival. Professor percival, professor of law from the university of maryland, school of law where he has taught since 1987. He is also director of the schools environmental law program. Professor is a graduate of Mcallister College and ma 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 checker for judge shirley of the u. S. Court of appeals for the ninth circuit and u. S. Supreme court byron white and special assistant to the first u. S. Secretary of education, professor percival is internationally recognized as leading scholar and teacher in environmental law. Since 1992 he has been the principal author of the most widely case law, environmental law, law, science and policy and author of more than 100 publication that is focus on environmental, federalism, president ial powers, regulatory policy and legal history. Professor percival talk taught at Harvard Law School and University Law center. He has taught and lectured extensively in china and it is a taught and lectured altogether in 29 countries and six continents. I gather you missed antartica. [laughter] you dont speak penguinese. We are delighted to have him back. 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 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 rein supreme and often how theyre going to be decided. When i teach constitutional law, i usually start with the following historical proposition. I say, let our what our Founding Fathers were faced with was ineffectiveness of the articles of confederation and the fact that we had just won a revolution against a king, so their task was to figure out how can we have a strong federal government that will be effective as the article 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 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 they decided upon and federal and State Government. Now, throughout history that has been a recipe for lots of conflict, political conflict between the branches of the federal government, between the state and the federal government, thats part of the constitutional design. In his book, professor barnett writes very engagingly and accessible and tells some great historical stories and i think this is a book people should buy at costco for a vied audience. Theres premise that theyre opposed interpretations of we the people sets up a false dcichotomy that pushes us in further division. , in fact, while hes demonstrating that its possible to view the same documents in two widely different ways, what we have today is an understanding that the constitution both protects individual rights and it allows government to function effectively usually through majoritarian rule. The real conflict is how do you draw the lines from when we decide to protect individual rights and when we reject certain constitutional challenges . Professor barnett 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 instantly embrace bid the Political Party that was trying to stop the legislation from willing adopted. At the time, most constitutional law scholars said, you dont have a prayer of succeeding on this but afters 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 therefore chief Justice Roberts deciding that 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 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. He was confirmed by [laughter] a few weeks later, my, how have things have changed since then. We have now knocked down ideological battles over Supreme Court nomination and the courts have become subject to the 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 cut back in federal powers, the courts should not differ 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 what are 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 and sell the court that a law even one thats been in effect and 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 twothree judge panel voted 3 to 1 that the Clean Air Act was unconstitutional on nondelegation grounds. 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 most all of the legislation that authorizes health, safety and the environmental regulation. And so the Court Unanimously rejected it despite the pleas of industry that they should rewrite the statute and required costbenefit analysis for everything. Professor barnett advocates for a system where individuals, any time, anything affects their liberty to 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 agency have to follow procedures. Right now president obamas plan will be heard on dc circuit on june 7th. I submit its a better way of dealing than letting the individual without any perception of constitutionality to strike things down. Now, the reason the u. S. Has the oldest written constitution is because of its capacity to evolve. It as has evolved and changed over time. The court was not split but there was one justice, a new justice, william f renquist. In keeping with tradition had an opportunity to have lunch with each of the justices and at the time, this was 1980, we asked Justice Rehnquist and asked which decision are you most proud of and he said federal wage and hour legislation as applied 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 the early dissent in the case, 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, sent 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 extreesmism is damaging the publics perception of the role of the court. He said that particularly given the process the public starts thinking not as a legal constitution so much but as political institution. Unfortunately, i think professor barnetts approach that he advocates in the book could exacerbate tendency. When president obama announced that he was going to make a Supreme Court nomination for the vacant scalia seat, the Republican Leadership immediately announced we will not even consider it so dont bother. This was truly unprecedented, the idea no hearings, no nothing, we are not even going to consider it, who you nominate and president obama surprised lots of people by nominating a justice who is has agreed to be very wellqualified 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 Barnett and he agrees hes a very smartqualified person. What is enough, what is enough is that apparently the Republican Party now feels like we should just blind ourselves and not let the public hear the views of justice garland at theer hearings and wait until maybe we have a new president who would appoint justices who would reach our preferred political outcomes. And i would hope that despite the fact that 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 politicalization to preserve the rule of law as 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 books represents, not through Supreme Court, witness the condemnation by the right wing and the tea party of chief Justice Roberts who is 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 where he illustrates how the way constitutional change happens, whether its for gun rights in the heller case or marriage quality 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 responsiveness of constitutional law to evolution of soarm norms is social norms is a historical fact. This is a way to see constitution evolve rather than radical change advocated in his book. Professor barnett does indicate that he thinks he could only accomplish this as central part of the democrat of the republican platform embraced his view of the republican constitution. Yet he also admits that some of the changes will be better off done through constitutional amendment, he wants to repeal the 16th amendment and those of us who signed checks on monday to the irs that sounds unappealing to eliminate taxation. So in many ways that would allow direct election to senators. In many ways, his book wants to take us back in time and to eradicate change. If we want to keep the book as madison said, i think its best that we try not to politicize the courts. Thank you. [applause] we at cato never promise our 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 stake through it until it is dead, dead, we will hear a response from Randy Barnett. The only living constitution is a constitution thats followed. The constitution thats ignored and followed, thats a dead constitution. Im in favor of a living one, im in favored in the cato constitution, the one that we have enacted. Thanks, professor percival for stimulating remarks. I could see that he was 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 gold old days for professor percival. All the justices agreed about how the constitution should be interpreted. Yeah, i can imagine when all the justices agreed with each other about how the scon institutional should be interpreted, then at that point and youre going to confirm a new justice. All that matters is qualifications, are they smart r they honest, do they have a judicial temperament, of course, if everybody agrees with how the constitution stands for everything turns around qualifications and nothing else. Who started spoiling all the fun . Associate Justice William rehnquist. You know what his problem was, he was ideological. All the other justices out there they werent ideological. They were just rule of law guys, we will call them. Maybe just neutral. If justice associate justice came and was ideological. What was he in favor of . He was in favor of federalism. That was it. You will notice a strange kind of ideological commitment, ideological commitment to division of power between the federal and the State Government. You can call it ideological but it isnt with respect to the outcomes of particularly cases. Chief Justice Rehnquist vote today be able to use medical marijuana under principle commitment to federalism, not because he supported use of medical marijuana but he was commit today federalism. Thats what this terrible ideological guy and ever since then its only gotten worse. More of the ideological judges have gotten on the bench arguing for things like federalism or in the recent case of obama executive action orders separation of powers or delegation of powers. We cant have that. Thats too ideological. One of the antidotes is thesis. The people that are nostalgic for the old days are nostalgic for when there was one side. Now we have a competition. Two two sides and you can reliably count Democratic Party to appoint in the old mold and sometimes the Republican Party might choose people who are actually oppose to that mode and sometimes they do and sometimes they dont and sometimes the people they choose are good and sometimes they are not. What separate it is parties and justices is not simply a commitment to political preferences which is the way that professor sandoval put it and most put it. Its useful to step back and see what separates those two visions and there are different ways one could explain this and in my book decided that the most effective way in understanding is understanding wee the people as the group as we the people should 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 and can only be made into a democratic constitution by ignoring key passages of its text like, for example, the ninth amendment that says enumeration in the constitution of certain rights shall not be construed to disparage others and no state should make or enforce any laws of citizens of the United States. Two of these provisions that if you came down from mars and you read that in the constitution, you would think, boy that sounds pretty important and somebody like professor percival can come and tell you why these two provisions are not enforced by the Supreme Court and completely lost in the 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 constitutionalist approach to get rid of the part that is get in the way of democratic constitution. So i think what im hope to go propose is a compromise between the idea that between denying that partnership plays any role this clearly does, republicans have a different view than democrats and identifying what the difference is about, not naked political preferences as to outcomes and judicial philosophies as to the constitution. And i will say one more thing in how professor opened remarks, boast of these visions of we the people are attractive and appealing. We try to hold both of them in our mind at the same time. Individual rights are appealing. For that reason, both positions actually incorporate elements of the other. The democratic constitution, the progressives who gave us the democratic constitution couldnt leave under that regime for ten minutes before they started to make exceptions for what they called fundamental rights or what they call suspect clarifications of groups, so they immediately qualify their commitment to the democratic constitution specially when the republicans took control of congress in 1946, then they thought, wait a second, the judicial restrain thing, maybe we should rethink that. I talk about it in the book. By the same tone 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 suppose today play the role. The electoral college, the republican constitution does allow for democratic checks on power. It just doesnt pretend that these democratic checks are the same as the voice of the people, so ultimately the difference between these two visions is what is your rule and what is your exception. The democratic rule is majoritaria rule and that i will give you select exceptions 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, bob. He indicated professor barnett indicated im nostalgic, actually the thing im missing more, i took my students to an oral argument and the justice of Justice Scalia makes oral argument more entertaining. I wasnt condemning him for having a strong ideological commitment to federalism. In fact, i think he demonstrated how that commitment tran kenned whether it was a conservative or liberal cause. In case after case where california put a nuclear in place, he respected federal even though all Industry Groups wanted them to be preempted by federal law. Barring that waste of being disposed of, the whole rest of the court will say its violation of clause but not Justice Rehnquist, he was truly nonpartisan or liberal or conservative. With respect to the other justices on the court, i dont think there was a liberal Group Controlling at the time. Look at my own justice, byron white, the only justice appointed by kennedy, two decenters in roe v. Wade. I know president nixon nominated rehnquist 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. So its incredible how our system has gotten to the point for i fear what would happen next. The democrats elected president and republicans retain senate, we like eight justices on the court and we are not 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 believed was qualified by every measure that Merrick Garland is qualified, i dont think we would be in the situation today. Biden said at the time something i agreed with at the time, that is judicial philosophy, he said, was ultimately as relevant as what we could call qualifications. Judicial philosophy was a legitimate part of the senates vetting of a president s appointment from the 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 that this is a sufficiently important matter and given the fact that this has happened in Election Campaign season, its the sort of thing that should be decided by the electorate very shortly and very shortly will be. Why not hold hearings to explore judge garlands judicial philosophy . Because his judicial philosophy, the judicial philosophy is relevant but the point is i think it would be unfair to him to make it about him. Its not about him. Its about the next choice, whoever they may be. He may or may not be the most reasonable nominee a democratic president might put forward but i do think hes Court Opinions show that hes committed to the democratic constitution and he will vote in big cases the very same way the way progressives vote in big cases. I have upmost regard for elena cagen. 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 vai vacancies that occurred during an 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 when justice stepped down for Health Reasons the same day president eisenhower nominated president william, brenon as a as a recess appointment. And the next year he had nominated him for this seat and the 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 against sam melito in the very first year of the second term of president bush, not in a president ial year. Years and included such people as john roberts, Miguel Estrada and other extraordinarily wellqualified people for those appellate seats. Lets go to your question and if you would wait for the microphone to get to you, if you would identify your self and any affiliation you may have, and let me ask you, one person is asking a question, let me know so we can get the mike to you and have a little downtime as possible. Lets start right up here and go secondly to the gentleman in the green shirt right here. I am unaffiliated. My question is for professor barnett. A sense of reality into this discussion, you talk about restoring the republican constitution. To what extent is it possible in any way to do that . Hasnt it been dead since 1938 . Do you imagine there is a court in our future that will reverse helvering and restore the enumerated powers or the ability to regulate everything under the Commerce Clause will be somehow limited . Tell me how the republican constitution gets reinstated or restored . Great question. She chung chris chief Justice Rehnquist adopted a strategy i call this far and no farther strategy which as an in between strategy, he said we will take all previous expansions of federal power and consider that the high watermark of federal power and if you want to go beyond that you better have special justification for doing that and the justification you offer should not be consistent with Unlimited Power in the hands of congress and that is what lopez represented and morrison represented an racial is backing away from but what five votes represented in the healthcare case because mandating you to do a particular product was Something Congress had never tried before. It was going above that line. And the justification offered on behalf of it basically said congress can do whatever it wants which is the dream list of progressives. One way to deal with this is to hold the line. That was considered radical when it was done and the way all constitutional change happens is gradually whether we like it or not. What matters is the direction it is going, not how fast it gets there but what direction it goes with you can slow and limit and stop and rollback and that is the way these happen on a Multimember Court the members of which the constituents will evolve over time with multiple cases, that is how it will happen but it isnt going to happen unless you understand different conceptions of the constitution that are at play. As long as you confuse this with political disagreement and not a matter of political principle it is not going to happen and you see with the ultimate goal should be and you can work towards that end. I am a local attorney. My question is about the discussion of the declaration. Why do you think jefferson used life, liberty and the pursuit of happiness rather than life, liberty and property and does that change have any significance to your conception of the republican constitution . No one is entirely sure why the change was made. It was done in the course of drafting this over a short time. There has been speculation, i dont want to entertain what the speculation is. The canonical formulation, george masons draft of the virginia declaration, jefferson was copying from, i tell the story in the book, sent him a copy of his draft declaration he drafted a couple months earlier and jefferson had it in front of them, it was actually a draft that talks about the acquisition and enjoyment of property copied by several other state constitutions including Massachusetts Convention constitution and ultimately masons version led to the abolition of slavery in massachusetts by the Supreme Court. I dont want to speculate, it was masons formulation that ultimately became the more canonical version spread through the United States at that time. Particularly for barnett. The general logjam, and seems to be getting through. The article 5 Constitutional Convention process, a little about how and whether republican versus democrat ideas of the constitution. Involved in article v movements, i endorse article 5 at the end of the book which professor percival mentioned in the course of his comments. It would depend what amendments are proposed was progressive amendments were made part of the constitution like the income tax amendment that made the constitution less republican. And spy off state for money being collected by state citizens and coworst them into taking part in federal programs and citizens dont get the money back. It was not meant to have this effect but it did. Whether the article 5 convention which is permissible under the constitution, perfectly okay to change the constitution, whether that will serve republican or democratic ends depend on the substance. I favor amendments that would make the constitution more republican, and there are two purposes, correct Supreme Court decisions in a way the Supreme Court is not going to do and the other is to fix problems we now know exist with the republican constitution which is not a perfect constitution. The 16th amendment, the misuse of the spending and general welfare clause, is nicely set forth in james buckleys book saving congress from itself, that involve, sending money to the states, 80 of the tab. And dictating the uses that money should be put, removing that money, leaving programs in the hands of the states for projects they spend their own money would never have chosen so james buckleys book, and addresses the problem in a wide variety of contextss. A very nice job covering article 5 convention possibilities. And incredibly strange state of politics. Who is going to be at the convention, the possibility of wholesale changes in the constitution is very scary to people, should be very scary to people of all political stripes. Randy does point out they can compose amendments that would have to be ratified by the state. I argue our current state of politics, there is nothing to justify such a radical step. It would take only 13 legislative bodies to block any amendments. During this election season, i am not sure that would save us. Johns hopkins, the only mention of republican in the constitution is the guarantee clause, National Governments obligation to guarantee a republican government to the states. It seems to me what you are suggesting is the constitution itself is a republican guarantee of National Government to the National Government. We know the republican guarantee clause was rendered irrelevant by chief justice tony in the antebellum case but Justice Thomas 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. I havent read Justice Thomass opinion yet though i read about it. I havent thought through an answer to the question you asked so i dont want to speculate on cspan, about what i might be thinking of. It was almost immediately after our republican constitution was devised to solve a problem they felt needed solving that virtually every state copied. 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, it only passed narrowly, within a few years every state had emulated this form of government and that is why they only have 3 branches of government. There are a few variations. The meaning of republican government changed at that point towards this form of government away from the democratic government that dominated states before. New software to help keep the judiciary accountable. You mentioned the situation regarding judge Merrick Garland. If it should be heard. How can you basically from having the ability to treat the judiciary correctly when he recused himself from holding judge Richard Roberts accountable for the rape of the 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 are going to be paying his salary now with his retirement. This seems to be a pattern of practice with the judges not holding each other accountable. I know Merrick Garland and i think highly of him. I heard about the case you are talking about. I dont know specifically why he recused himself. The effect of him recusing himself, another judge would hear the case and he wouldnt here for whatever reason. The reason why the republicans should not go forward with nominations has nothing whatsoever to do with his own personal merit or personal integrity and i would imagine he would be a fine Supreme Court justice if i agreed with his vision of the constitution. I would let it go at that. One concern he expressed to me in being nominated, and might be dragged through the mud. I dont think republicans had any interest in doing that, i couldnt speak for activist groups but i dont think republicans in the senate did and as long as republicans stick to their principal it doesnt matter which decisions should be put off, and we should avoid any sort of personal attacks on judge garland. Tim . Tim lynch with cato. Primarily for Randy Barnett. You make a strong case for the republican constitution of the democratic constitution but can you talk a little more about the third school that you alluded to which is the result Oriented School which is the popular view, 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. It is awkward because to my knowledge no scholar has written a book defending coming to the defense of this third school, but it is the popular understanding in our culture today. I run across it in my travels. I think it may be a more powerful school than the republican or democratic schools of thought you have been talking about. I am against it. We all have our priors. We all have our instincts about any case we first hear about is influenced by how we wanted to come out. I am like that, you are like that, everybody is like that. We have a rule of law in order to temper our prior, to qualify it, make us run our priors through some other way of analyzing things to see if we are okay. If it is justified to get our way this time. We start with our priors. We evaluate constitutional arguments as to whether they are persuasive or not but those arguments are tested against our opponents. Objections to those arguments and eventually we tried to reach considered judgments on whether they fit with the rule of law and not simply our political position and the only message i am trying to get through, not the only one but one of the messages im trying to get through in this book is what separates people on the left from people on the right within the legal system, within the legal culture is not a pure disagreement over outcomes. It is not what separates the left side of the court from the right side of the court. They all have their rooting interests in this outcome or that outcome but their commitment to one vision of the constitution over another. The democratic constitution with qualification or republican constitution with exceptions, which one is the vision that motivates them and that more explains their behavior that looks partisan than simply i like this outcome, you like that outcome and we will figure out a way to rationalize it. The best example of that is antonin scalias opinions in a two flagburning cases that came up in 1989, and 1990. He obviously was not a fan of flagburning but found the law unconstitutional, and as he said afterward when he went down for breakfast that morning his wife was marching around the table singing it is a grand old flag. Can i add one more thing . Constitutional law professors are somewhat at fault for this because the way constitutional law tends to be taught even in law school is make it on flagburning. Are you for flagburning or are you against flagburning . Make an argument on behalf of your side. Make an argument on behalf of the other side. They make it out in class that they make it out to be you pick what your outcome is and marshall every argument in favor of that outcome and the other side does the same thing and the judge will pick which outcome they like. This is a picture or portrait of the practice of constitutional law caught in constitutional law classes. It isnt a surprise the general public would have this view if law professors teach commonlaw this way but i dont think ultimately it is the way the justices ultimately decide cases. I am not saying they never do but basically they are committed more to the principles of the constitution, they disagree in a partisan way over what those principles are and it is useful to focus on that because we only picked judges we think agree with our outcomes we are going to be disappointed in those judges. They actually hold principles adverse to the way we think the constitution should generally be interpreted. Statutes are much easier to change than the constitution is to amend. If the prescription is we should have more judicial activism, lawsuits claiming because you didnt reach this preferred outcome this is unconstitutional, would leave things in a mess. Better off to effect change by changing statutes, get the court to create new constitutional doctrines, to react to problems. I want i want to ask what the best practical way to restore our republic republican constitution following the prescriptions of Charles Murray in his recent book of funding outputs like the institute for justice and other legal outfits, to test in the most demanding way the laws that are on the books. I only ask it because mister lynch, i think the third approach he was giving voice to, whether he was for or against it. He wouldnt be here if he were for it. It speaks to how the law is regarded by folks who would not demand that it here coherent rational justification. I like it, i like chocolate ice cream. I would ask if the approach which doesnt seem to be, as professor percival would say, to be cooked up by law professors. It is pretty organic from the ground up, eyebrows raiders in texas, dental hygienists in north carolina, practical problems in the real world so i was hoping you could identify how those cases might be a way to restore the republican constitution. Not to pander too much, a fellow from the james wilson institute, i have a chapter in the book in which wilson figures prominently, he well articulated the individual conception of popular sovereignty. I got the idea from james wilson, our most neglected founder. For the institute of justice, i have a new book out, it starts at the founding and tells the entire story of the United States that colonnades in the institute for justice. That is how it all ends. At the end i talk about clark healys book terms of engagement and miss the cases he talked about in his book, as heroic efforts to identify arbitrary laws at the local level. I pander to the institute for justice and finally, the excellent book is very provocative and one of the 6 things summations, i recommend it to first year law students because it is an overview of what they are learning as first year law students and as for his proposals, some are more workable than others and the representation to challenge laws that are irrational or arbitrary, administrative agencies at the state and local level and they are dominated by industry people who use it, and a check could be put on government power assuming you have judges prepared to hear these cases as neutral magistrates and that is something this gets to, this is a book about what role judges should have. Judges do have a role in screening out irrational and arbitrary laws. Only if they think they do can the cases the institute for justice brings be decided fairly. One professor barnett describes it, neither professor on the panel teach constitutional law that way. To reconcile the discomfort you describe, James Madison had with popular democracy with his documented urging at the Constitutional Convention for proportional representation and against the idea of mal apportionment, an argument he eventually gave up at the Constitutional Convention as a way of political compromise and getting the constitution past. There was a lot of back and forth. James madisons original overall scheme did not get adopted as proposed. Nobodys original scheme got adopted as proposed and madison coming from a powerful state wanted powerful big states to call the shots in the convention and low and behold the representatives from the smaller, less powerful states were opposed to that. To get them on board a compromise had to be made in which the size of your state mattered in one house and the size of your estate did not matter in the other house so this is how compromises are done. Madison was representative of virginia and looked out for virginias interest in doing that and that is not in conflict with his other commitments to the idea that popular input, for one thing, i dont know what the selection was at the time, but 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 individual. He believed that as well so there were filtration mechanisms he felt were necessarily 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 could judge both the law and the facts, the fact and the law in every case, when the assumption was every case, and it would be done by the electoral college, delegates would also be elected popularly so there would be popular input into all three branches. It wasnt to be confused with a unitary voice of the people. A concept that 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. They were the party in which the will of the people would be heard. One party and only that one party. Thank you, Randy Barnett and robert percival. The book is our republican constitution securing the liberty and sovereignty of we the people. By professor Randy Barnett. It is available outside for a discount. Randy barnett will be glad to sign it for you. It is available in bookstores everywhere and costco. If we run out of books outside. I always aspire to write a book you can buy in the airport but even never i could imagine you could buy at costco so this has been a huge accomplishment. We are going to break for lunch on the second level of the spiral staircase at the George Yeager Conference Center but before we do, please, lets have a warm round of applause. [applause] [inaudible conversations] [inaudible conversations] you are watching booktv on cspan2, television for serious readers. Heres a look at what is on prime time tonight. We kick off the evening at 6 4 05 pm with the author of valiant ambition, george washington, Benedict Arnold and the fate of the american revolution. At 8 00, take a tour of the largest African American history and literature collection in the midwest. At 8 45, former astronaut buzz aldrin discusses his latest book, no dream is too high. At 10 00, on booktvs afterwards, rise of the rocket girls