Randy barnett is now joining us on booktv. Us on ellis about yourself. Im a professor of legal lite er Georgetown Law School were ih also direct Georgetown Center for the constitution and im a former criminalfo prosecutor inr cook county illinois in chicago but i argued the medical marijuana case in the Supreme Court and i was one of the lawyers for the National Federation of independent business when the challenge the Affordable Care act all the way up to the t Supreme Court. Given all that experience, what you think o of the constitution . Id like to constitutional law. I think i like it a lot more than those who want to change it. By having created judicial interpretations of what itscr supposed to mean and eliminatin large part of the constitution. So when we have that argument come and hoosier book by the way, showing restoring the lost constitution the presumption of liberty, when we have thatf argument between the livingcumt documents and a strict constructionist argument looking at the constitution, is that a fair argument . I wouldnt put it quite that way. The constitution doesnt get followed is a dead constitution. Constitution and thats what keeps it alive. As firstrate construction, it was justice goalie when he says he went to correctly construe it. Neither strictly and are liberally, but accurately thats the thing we have to aim for. Host the subtitle of your book is the presumption of liberty. Guest the presumption of liberty is the way of putting that the constitution says into effect by basically saying that the government ought to be about to justify its restrictions on liberty of those restrictions are really reasonable. In fact, under current law, unless you identify a fundamental right at issue are your part of a suspect class of people overseas special protections, the government doesnt have to justify to restrict liberties. To get the presumption in favor and that tends to be a rebuttable. Host can you give an example . Guest and economic regulation for example would be very hardpressed to challenge it. For deliberate reasons, the congress and state legislatures are given virtually Unlimited Power over regulating the economy to one of the reasons we challenge the Affordable Care act, the only thing is the insurance mandate because that vista beyond which congress had ever gone before, so we are able to challenge that. Everything short of that was very difficult to challenge. Host what is the takings clause in the constitution . Guest the takings clause is private property be taken for public use without just compensation. Host how is that taken away our liberty . Guest certain parts of that have been part of the lost constitution. The lost constitution i should clarify or the parts of the constitution that have been taken away. It isnt completely taken away, but the public used phrase has been reinterpreted by the court as meaning public purpose. So rather than taking property for public use, which refers to schools or highways or railroads were Something Like that, a public purpose has been construed as broadly as economic development, nick in the world a nicer place in individual homes likes to say kilos home got taken to do it develop that would be on behalf of the company in new london, connecticut, which never got done by the way. She lost her house because of the public purpose, not because of the public use. Host what was the end of the case . Did she lose her house . Guest she ultimately lost five to for the Supreme Court. Finally, the city consented to allow her to the house to another location. The neighborhood she was part of his gone. Its a dumping ground for debris. Said the part of the last constitution, the theme of my book is that public use should be restored in place of what the courts have put in its place, which is public purpose. Theyve either been completely eliminated or key phrases have been substituted. Host such as . Guest the ninth amendment says the enumeration in the constitution insert i should not because true to deny or disparage others retained by the people. That would have a dead letter. That is when the courts dont follow. The Fourth Amendment has been in his classes is no state shall make or enforce any law, which shall abridge villages or immunities. If he came from mars they told you that was in a legal document, you might say that sounds pretty important. Wonder what that means. It sounds very important. In fact, its only been used one since 1873 and i got it from the nstitutiive yearafter it jim defelice case called the slaughterhouse cases. Recently when given the opportunity to restore the privileges or immunities clause in 2010, the Supreme Court declined to do so. Host randy barnett, as a former prosecutor, when she taking peoples liberties away from them . Guest course good advice, government takes peoples liberties away when they violate the rights of others and also can properly regulate is on its regulations are reasonable and can be shown to be reasonable in the pursuit of an appropriate government purpose. I dont know if its nose, but a great many regulations are in pursuit of helping some special Interest Groups at the expense of the general public were some other competitor. Those would not be generalinterest types of regulation. Reasonable regulations are constitutional prohibitions are also constitutional. I became a state prosecutor because state prosecutors prosecute crimes of murder, armed robbery, theft and those violate the rights of others. Host why is the individual mandate in your view in the Health Care Law unconstitutional . Guest is actually not only my view. I justices on the Supreme Court including chief Justice Robert thought requiring people to engage in Economic Activity or commerce in order that it can be regulated was beyond the powers of congress. Therefore, the individual mandate is unconstitutional and the reason he was unable to uphold the Affordable Care act with his view that do this ceiling construction which he changed mandate into an option to either pay a tax combat pay the penalty which he construed as a tax or buy insurance, but you are no longer required to buy insurance because i was unconstitutional, just like we argued. Host randy barnett, if someone reads a restoring the lost consultation, do they have to be a law scholar . Guest i hope not. It was for a general lay audience i have people who fret at more than one third event of gifts to others because it really opens their eyes about what is missing in the constitution and how it came to be. It is a serious book. It is not superlight, although i try to be lighter than a material added at the end of the updated edition, which came out of the last few weeks. Their 60 pages of new material at the end and i think theres a lighter touch to that than there was the beginning of the book. Generally speaking, is accessible to a generally educated audience. Host do you think the constitution is further amended . Guest i proposed an amendment to the constitution. The intention is to restore the lost count to two shin. Both houses of Congress Last term and that allows majoris sector majority of the population to repeal the state legislatulegislatu re to repeal any federal law or regulation which would provide an important state check on federal power. We have federal checksum state power. I support and thing are a good idea. We dont have that many checks on federal power and state legislatures can provide that check and thats one of thenoth . Proposals. Oh, i th i think theres a proposal,e theres a proposal that, ofs wht course, follows the original meaning which is what the bookar isopos about. The income tax amendment and say congress cannot tax income no matter how derived, but they could have a National Sales tax instead. So theres that proposal in there. Theres a proposal to ban Unfunded Mandates that are imposed on states. Although there are very few of these proposals that have to do with states across states, theyre mostly all to do with individual liberty. Host randy barnett, what courses do you teach here at georgetown . Guest well, after teaching my way through the curriculum, i teach our course on common law i, common law ii which is constitutional rights, and this book is about both of those things, and ive taught contracts since i started teaching way back when, and i have a case book in contracts and constitutional law as well. Host a lot of our political discussion these days is about National Security agency, privacy. Whats your take . Guest well, i dont talk about it in this book, but i do have a recent piece in the journal called engage published by the federalist society, and i had an oped in the wall street journal arguing that this bulk data seizures that the nsa has been engaged in is unconstitutional under the Fourth Amendment and its actually illegal under the usa patriot act which is what they purport to have as their authority for it. So im actually greatly concerned with what the nsa is doing, and ive argued theres serious constitutional questions, and i even joined an amicus brief with jim harper arguing it was unconstitutional. Host i think i read that texas has passed a law making email, giving email Fourth Amendment protections. Guest um, im i havent heard about that one. Host right. But if thats the case, i mean, with the Commerce Clause and the interstate Commerce Clause, how would that play out . Guest well, all texas could do is protect email from their own Law Enforcement officers in the state of texas, which is what they ought to do. They cant really have any effect on what the federal government does when they pass a law like that. Host in your view, is email due Fourth Amendment protection . Guest absolutely. I do think they claim to give can it Fourth Amendment protection when they say they cant read your email, they can only survey the headers, information as to who you send it to and who you got it from, and theyre claiming not to be able to read your email, so theyre sort of admitting that email is protected already. But be i think metadata which is what they call the headers or in the case of a telephone who you all or how long you talk for, metaa data ought to be protected as well. It doesnt mean you share it with the world, including your friendly government. Host when you look back at the Supreme Court, who are some of the justices that you most admire, some that you dont . Guest i actually dont have very many heroes on the Supreme Court. Most of them i probably am sort of tepid to lukewarm about. I would have to say the first Justice Harlan who wrote the dissenting opinion in the civil rights cases which was otherwise unanimous besides his vote was and also a dissenting opinion in plessy v. Ferguson on behalf of a very important reading of the 13th and 14th amendment, he is somebody who at least at that stage in his career i admire. Also chief justice salmon p. Chase who was an antislavery lawyer. His nickname when he was a lawyer was the attorney general for runaway slaves. When he became chief justice succeeding the racist Justice Roger tawny appointed by abraham lincoln, i thought that was a great moment for liberty, and ive done a lot of work on salmon chase in recent years. Host randy barnet, t, restoring the lost visit booktv. Org to watch any of the programs you see here online. Type the author or book title in the search bar in the upper left side of the page and click search. You can share anything you see on booktv. Org easily by clicking share in the upper left side of the page and selecting the format. Booktv streams live online for 48 hours every weekend with top nonfiction books and authors. Booktv. Org. Heres a look at some books are being published this week. Look for these titles and bookstores in the coming weeks and watch for the authors in the near future on booktv and booktv. Org. Johnny walker is the codename of an iraqi translator who helped the navy seals root out terrorists in iraq following the insurgency. Johnny walker accompanied the seals on over a thousand missions and is credited with saving dozens of them along with many iraqis. Next, jim defelice and Johnny Walker talk about mr. Walkers experiences. This is about an hour. First of all, thank you, everybody for coming out. We really appreciate the support and were going to kind of wing it a little bit, keep it easy and will just take it where it goes, right