that front. guest: part of the challenge in wrapping this management arms around the challenge is that it has, it is been at this odd quirk of the way it was set up. is legally prohibited from investigating its own workers' misconduct. investigate your coworkers' misconduct. instead, because of the way that they had anp, argument for doing it this way. all of those have to go to the inspector general for the department of homeland security. is the dhs igs who is never had the resources to police the police force as large as cvp, does the rest of dhs and has never been able to devote the resources that they need to investigate corruption. you have seen at least hundreds if not thousands of cases of reported corruption within cvp that is never investigated because of this weird bureaucratic quirk. it is played out in recent years. they are beginning to fix that challenge. the commissioner has made some tweaks to that system to try to allow cvp to be able to investigate its work force -- workforce more thoroughly. to read morewant about that, you can go to politico.com. we appreciate your time. that is our show for today. we want to take you live to philadelphia where the love rights book fast national constitution center for him is taking place. authors will look at key individuals that helped define the first 10 amendments of the constitution. we will see you back here tomorrow morning at 7:00 a.m. eastern. [applause] ladies and gentlemen, welcome to the national constitution center. i'm jeffrey rosen, the president of this institution. in junestarted here 2013, i can't imagine a more exciting day than bill of rights day which we celebrate today. before i explain why this is usually significant to us, i want to begin by reciting the mandate from congress that the center is privileged to have. i see familiar faces in the audience. we are live on c-span all day today. i want to share this mission that we have with our c-span viewers. nonprofitprivate created by congress on the bicentennial of the constitution to disseminate information about the constitution on a nonpartisan basis. that means we are the only place in america in these polarized times that invites all sides of the spectrum to debate not political questions but constitutional questions and let citizens make up their own minds. as part of this mission, i can't imagine a more momentous event the one we are celebrating today. this is the opening of a new exhibit which displays one of the 12 original copies of the bill of rights. on october 2, 1789, george washington set up to the states 13 copies. 12 survived. one of them is being installed in a beautiful the gallery today at the constitution center. it will be open for the next three years. includes rare copies of the declaration of independence and the constitution. howells the story about these stories are implicit in the constitution and codified in the in at -- bill of rights. this has been at the new york library for 100 years. the commonwealth of pennsylvania and new york public library are sharing it for the next 100 years. then it goes back to new york for three years and back to us. we will trade like a precious constitutional football for the next 100 years. they can see this incredible new interactive unit we have installed where people can click on anything and see the antecedents and see the spread of liberty across the globe. you can check it out. and just a remarkable visual experience of how the bill of rights has influenced liberty around the globe. bem now just so excited to inaugurating the first of four book talks and the national constitutional centers book fair. that this isited broadcast live all day on c-span. eat audiencee gr to write down questions. you can tweet us. for a bit, ialked will take your questions. what is so great about these books is they relate to each other in fascinating ways. talking aboute free speech. we will branch out to ideas about our natural rights versus tradition. we will talk about how it should or should not influence contemporary constitutional debates. >>will come it -- culminate as robert bork said, you are in for an intellectual feast. i think it will be a feast of constitutional education and debate. with that, i'm excited to introduce to friends who have written this great new book. they are lee levine and steve. leading first amendment libel lawyer in the united states. we would turn first to him if we had a question about press freedom or defamation. he is an advocate as well as a scholar. he's a partner in a firm. clients.esented media he's recognized as the best lawyers in america and teaches at georgetown university. i have known steve for many years. fresherprofessional -- dass -- professor. he is the past chair of the aba rights and responsibility. he has written a definitive biography of justice brennan. silence or cell phones and write down your questions on note cards. start tweeting, your questions. we will get right to it. we have just opened this beautiful new exhibit. thefirst thing to stress is first amendment was not the original first amendment. there are two other amendments that appear at the top of the original bill of rights or it one says congress can't raise its own salary. that became the 27th amendment. the original second amendment said that has to be one representative for every 50,000 inhabitants. bethat past, there would 4000 people in congress. why is that? there are a number of explanations. there was a debate over we needed a bill of rights and the constitution. there was a sense that the original constitution itself set up explicitly what government could do and what it couldn't do. if it couldn't do -- if it wasn't set out, it couldn't do it. one of the things congress couldn't do was pass laws it would abridge the freedom of speech. we didn't need a bill of rights to make that clear. there were others like james madison and thomas jefferson thought that needed to be clear. we needed to list those things that the government could not take part in interfering with. those fundamental rights of being a citizen and a democracy. great answer. madison thought the free speech was important. the amendment he thought was most important that did not pass would have presented the states from abridging freedom of speech and religious conscience area it took the civil war and the 14th amendment to do that. there was a crucial debate between madison and john adams at the time of the framing about the government's power to punish seditious libel. criticism of government officials either false or true criticism. tell us about the sedition act of 1798 which john adams passed his vice critics of president. it was not a neutral act. tell us what it did and what medicines objections were. >> the authors of the first amendment the lead -- believed they had won this fight. ,he notion of seditious libel something that was common in be punished could for criticism of government officials, particularly the king, for bringing ridicule or disrepute on the king. the proponents of the first amendment thought they had repudiated that idea. they put it to rest. adams,, led by john congress passed the sedition act which did that. broome -- a crime to bring disrepute to the president in particular. what followed were a number of prosecutions. of people a number jailed and fined for violations of the sedition act. there were critics of john adams that went to jail. they paid the fine. as soon as jefferson became president, he pardoned them. he had the government repay the fines. we haven't heard much about the sedition act since then. we will get to the new york times court case shortly. this involves some important cases about sedition around world war i. the espionage act is being invoked today. it criticizing -- said it criticizing the war should be illegal. it would lead people to resist the war. tell us about the debates over free speech around the time of the sedition act and how obvious was it to them that the prosecution of sedition did violate the first amendment. the bill of rights did not apply against the states at all. not until after the civil war when the 14th amendment was passed. we have this long. period where the federal government after the sedition act didn't try to do much to infringe what we would now refer to as freedom of press or freedom of speech. it wasn't until world war i when under thement started guise of the espionage act to criticizepeople who looke the government. the court upheld those prosecutions. wroteggested that they eloquent dissents suggesting that violated the first amendment. it wasn't until much later that the court backed that position. there were cases along the way that put us along that path. it wasn't until we got to sullivan that the court put itself foursquare behind that interpretation of the first amendment that supported what jefferson and madison were saying back in the sedition act days. understand and i want the viewers to understand what exactly seditious libel is. what is the difference between truthful and false statements? libel is a false statement damaging 70's reputation. act,e time of the sedition couldn't it be true? the greater the truth, the worst the offense. tell us about the distinction between libel which is false and seditious libel which could be true. context weinal inherited from england. the speech only had to be disparaging of government and the king or his ministers or people running his government. it didn't matter if it was true. the truth somehow made it worse. it increased the harm to the reputation. libel, the kind that became the centerpiece of the new york times versus sullivan was slightly different. that you were i could bring against somebody who in said something that injured our reputation. in the early days, truth was typically recognized as a defense to libel. if you pled as a defendant wait a minute, it was true and you could prove it, you one. that became a contentious issue later on as we try to figure out how to put the burden of proof and how that hurt freedom of speech. this would tend to inhibit free speech according to that view. >> we are going to talk mostly about libel, which is false statements. there is the right to privacy and intentional infliction of emotional distress. there is a debate today about whether europe can ban and require google and facebook to take down truthful but embarrassing statements people have posted about each other. this is under the right to be forgotten. the new york times versus sullivan, they are times publishes an ad called he'd their rising voices signed by celebrities. tell us what the ad said and what the objection of mr. sullivan was. >> the ad was a full-page ad in the new york times. it was aimed at trying to rally support for the civil rights movement, particularly dr. martin luther king. the ad said that law enforcement officials in montgomery, alabama -- it did not name any officials kang andrassed dr. padlocked the dining hall at the local college and expelled students. it talked about student protests, singing "my country'tis of the." it ran through about six paragraphs describing civil rights activities. sullivan was the sheriff of montgomery, alabama. he said the ad damaged his reputation and libeled him. the falsehoods were relatively minor. the dining room was in padlocked but some students were not allowed to eat in the dining room. the police didn't ring the campus with a police line, there was just a strong police presence. students didn't saying the song, they sang "the star-spangled banner." in a commonsense way you would say it couldn't have damaged his reputation. they were falsehoods. there were things in the ads that were clearly wrong. there, sullivan's times- sued the new york for libel. the ads did not mention him by name. it presented a number of difficulties. the new york times did not have a policy of verifying every fact in every advertisement. they verified to the people placing the ad were who they said they were. that was as far as their responsibility went. when it came to a trial, the defense was to say the ad is true. they weren't in a position to do that. there were falsehoods. they weren't really there falsehoods. it wasn't the new york times saying it. it was the people placing the ad. under the libel law in alabama at the time, this was a complex and challenging situation. >> thank you. faces seriousimes damages if they are held liable. tell me how much they would've had to pay. it was something like $23 million by today's standards. describe what william brennan's alternative was. it's important to recognize that it wasn't only commissioner sullivan who sued. there were five other lawsuits as well by the governor, the , all, city commissioners suing about the same ad and claiming that it was about them. they all sued for $500,000 each. in today's currency that is about $23 million. one, the newm had york times would have gone out of business. it was not an accident. this is a coordinated strategy to bring these lawsuits in an attempt to show the new york times and other national media from shining a spotlight on what was going on in the civil rights movement in the south. the other reason they sued the ministers who placed the ad was to present, this is a technical from, to moving the case alabama where the fix was in to federal court where there was a reasonable chance that the times would have gotten a better shot. there is one other important thing to recognize. this lawsuit was not some sort of bizarre cooked up crazy theory under the laws that existed at that time. what commissioner sullivan was alleging was a pretty standard defamation case. if anybody out there read that ad, he had a claim. it shifted the burden of proving him.ty from he did not have to prove that he suffered any damages. damages were presumed. prove that theto new york times is at fault. fault was presumed. it was about him and the words disparaged his wintation, he could $500,000. in every state, people didn't think about the strategy of bringing cases like the one that sullivan brought up against the times for the person this of inhibiting their freedom of speech. >> you have written the definitive biography of justice renin. -- brennan. he was not a personal fan of the press. he had some bad experiences. opinion that was an occasion for dancing in the streets. it was the most first amendment opinion of the 20 century. what was going on in his mind? resurrect decide to madisons vision of the first i mean this in a good way, he was almost schizophrenic about the press. in his personal encounters with reporters, he did not like the experience. he thought they invaded peoples privacy and did not show respect for the individuals they were writing about. there was no greater believer then brennan and the importance of a free press in a democratic society. he didn't have to like everything they did, but he understood that you couldn't really be an effective democracy without a press as a check on government. the press needed to be able to write freely about what was going on. that is the dichotomy. he understood and his colleagues did as well that one of the important things going on in this case was the officials in montgomery were basically trying to drive the northern press out of the south. they didn't want stories in the front page of new york times every day. desegregation was playing out in the early 60's. if they could make it so costly for the new york times and other northern media to do business in the south, they might pull out. withdrawn their correspondent from alabama in the hopes of avoiding being served with the lawsuit. itsother thing i might note fast danger member that the new york times had a circulation of about 600,000 people. 30 copies were sold in the entire state of alabama. don't hold me to the math. understood right away at both the civil rights importance of this case and also the opportunity to put forth this us free press was essential to the functioning of a democracy. to do that, he came up with a new standard, one that had been used in a couple of decisions before 1964. regretm that he came to was the phrase "actual malice." a public official could not sue for libel unless that public official could prove actual malice. that meant that the statements were published with reckless disregard or knowledge of their falsity. negligence, i could be a sloppy reporter but not be intent on the fame in somebody. i could just make a mistake. that's not reckless disregard. he set a high standard and made it difficult. this is how it ties into seditious libel. we want to be able to freely report on government and public officials and only when reckless disregard takes place or knowing falsity can a public official sue and recover for damages. >> juries thought it meant that the reporter did not like the official. you had to know that it was false or publish it with reckless disregard. i had a libel problem, i would turn to you. i want to ask you about some contemporary application of this standard. theybody is talking about rolling stone story about the uva rape case. could the people who were written about sue on the grounds that this was reckless disregard for the truth since it was false? back, e-mail lee levine. could someone stew -- sue could they sue>> successfully? about what anything i read in the newspaper, it depends on who they are. if that gets to another major issue that the supreme court tried to deal with after sullivan. sullivan dealt with just public officials. if a public official was suing for libel or defamation had to prove actual malice with knowledge for falsity a reckless disregard for the truth. the court has grappled if anybody else had to prove actual malice. brennan led the charge in a series of cases that expanded so anybody who was a public figure, not just people who hold a book office, people who the public to an interest in, they had prove actual malice. he corralled enough justices to have a rule that any publication that addressed a matter of public concern, anybody could sue if they were a public figure or not. the had to prove actual malice as well. that victory was short-lived. in 1974, he was in the minority when a different majority of the individualsrivate do not have to prove actual malice. they only have to prove negligence in order to recover. not being careful enough or unreasonable. getting back to the uva case, the plaintiff was a public figure. sued, it's ay national thing. they would have to prove that rolling stone published it with reckless disregard for the truth. that is a very high standard. on the other hand, if the person was a private figure, one of the orple mentioned in the story ,ne of the alleged perpetrators there's a reasonable argument they are not public figures. they only have to prove negligence. that they did not confirm her story, to that qualify as negligence? >> it could. that would be for a jury to decide. one of the things it is clear, when you are eight private courts don't make determinations about whether this was negligent. it goes to a jury. it goes to the people sitting in if itury box to determine rose to the level of negligence. on the other hand, if it was a public figure, the issue of , it has universally been viewed by the supreme court as an issue of a law. a judge has to apply. one of the important considerations and protections that the press has is somewhere before a trial, a judge makes a determination of is there enough evidence by which a jury can find actual malice question mark more often than not, there isn't. he throws the case out. the press never has to go through the burden of an actual defamation trial. by using the rolling stone case as an example, we can see a differentevolved standard between public and private figures. help us understand the evolution of the court. from the beginning, there was more of a first amendment ideas that would have abolished anything. would they have for been liable for private figures? >> i don't think they would've gone that far. that whenthe position the first amendment says congress to make no law, it meant no law. when -- any law that permitted libel suits against the media for printing things about the book officials would violate the first amendment automatically. there couldn't be an actual malice standard. they're just wouldn't be any lawsuits. far asdn't really go so to say they wouldn't allow any libel suits against private figures. court madence on the it challenging. the core of the court in the 1960's was this liberal core that included brennan and oral warren.-- earl that would've been a natural majority. brennan couldn't easily get the expanded sullivan to apply to other kinds of public officials and to public figures. the editing part about this book is that every one of these cases from sullivan for the next 30 years is just hard-fought. it's a constant tug-of-war. sullivan looks like it creates this clear, rod, forceful principle about the first amendment and it does. but every iteration of it after sullivan is just the battle and a struggle. is and the drama comes in the resurrection between the debates. tell us about the criticisms of sullivan. we had a podcast on the 50th anniversary itself. this is a plug. this is our podcast every week. we debate the constitutional issue of the week. these podcasts you can find on itunes and our website. they are getting 300,000 downloads a week. it's a thrill to have such civil debate about controversial issues. he embraced the position. tell us about the criticisms of sullivan and the more conservative justices would've up -- preferred. it's frequently trotted out by justice scalia -- he looks at what the original meaning was. he points to the sedition act. how can you say it prohibits seditious libel when congress passed the sedition act? is there was that a disagreement at that time and the author of the bill of rights thought differently. history is the --ition act was on skip was unconstitutional when it was passed. the other level of criticism apply to public officials having debatend of uninhibited has consequences. it makes people less interested in route -- running for public office. it destroys careers. it creates too much of a breathing space for truth. as it gotobjection is expanded outward and began to , the to public figures libel -- common law of suddenly required a showing of negligence by private people. you are giving the press and others a license to destroy reputations even when they had been negligent and done something wrong. even when there was actual in to someone'sy reputation. expanded the court sullivan from public officials to public figures and then to any newsworthy matter, that raised some questions about who counts as a public figure. justice bennett advocated for standards embraced. you are a public figure if you thrust yourself into the vortex of public debate. said that's fair because public officials have more access to the media. if someone says something false can say it'sou not. the internet, how is that changed definition? >> i'm not sure the courts have caught up with the internet. ways, something you say about somebody to go , i say something nasty and then jeff tweets it out, thousands of people are when i thought we were having a private conversation. is lee's ability to then send his own tweet out or use other means of communication to try to dispel whatever it was. notion thatoriginal the court relied on of public figures and public officials having a better ability to be able to tell their side of the really is and is true as it was. you had thed ability to go to the media and tell his side of the story. the court did not see it that way. he was a very prominent civil liberties lawyer in chicago. hired to represent a chicago teenager killed by the chicago police. the john birch society accuses him of being a communist. the court holds that he is a private figure. virtues andas its its challenges. you are the leading guy on this, how has the internet change things? represent private people who feel like they're been defamed on the internet? i represent people who are being sued by things set of the internet. to silicon valley companies at the forefront of digital communication, they will tell you it's nice and we are happy to have it. what's more important is a law congress passed call the communications decency act which has a section which provides internet service providers and website hosts can be sued for libel at all if they are simply transmitting what somebody else said. that is a huge expansion of protection. google and twitter and all those things wouldn't exist today if they could be sued for false and defamatory statements disseminated by other people over their facility. a website like the new york times website, if they could be sued for what they put out on the internet that other people created. if you talk to people in silicon valley, section 230 is the new new york times versus sullivan. it provides a greater freedom much broader on the internet than newspapers or television stations enjoy for dems -- disseminated the same thing. >> europe does not have a version of that. he litigates these cases. to sue for libel on the internet without that immunity and without the protections of sullivan? about thisnows more than you. i will try to do this. has valued privacy in competition with freedom of expression more than we have. it's a cultural thing. it's part of the dna of people who live in europe. more log reflects a much forceful protection of privacy. the most recent manifestation of this right to be forgotten. the idea is if something is published about you, even if it's true, if you decide years later that you want that up there. i don't want people to find out that when i was in high school i attended a party and got really drunk and got hauled off by the police. in europe, you can go to your minister of data protection and say you would like google to take that down. right to have that taken down. it's a right to be forgotten. literally. whetherquestion now is or not europe can force google ontake it down not just denmark or spain but in the u.s.. if you want to go back and research somebody running for public office, you won't be able to find out what their indiscretions were 20 years ago. >> you described it beautifully. the right to be forgotten comes phrase from the right to oblivion. the french want to be forgotten and americans want to be remembered. the biggest clash between american notions of free speech and european notions of privacy. or's say you are tweeting one of the c-span people is tweeting that this is boring and i object that this is violated my dignity, google has to decide if i am a public figure or if the material is relevant. commissioner in dublin says the my dignity has been affronted, they are liable to up to her 2% of its annual income, which last year was $50 billion. i hear some gasps. what would william brennan have made of this right to be forgotten? he respected the right to privacy. he helped advance it in many other contexts. i think he was a big believer in more information in the marketplace of ideas. if he were going to be offended by the expansion of libel law beyond public officials, he had many opportunities to voice that. to sports figures and movie stars and writers, it never seemed to bother him. i think he would stay where he was and stay on the same side. i'm sure you are right. what would people on the other , more of a concern about dignity and a fear that the calculated lie had no social value and should be prohibited. sense i thinkone they were talking past each other. , there wasthe start discussion about the liberal ands or the oculi did lie brennan's position all along was where not authorizing that. we're not protecting the calculated lie. were not encouraging that in any way. we were trying to draw a line andeen legitimate mistakes freedom of reporting and freedom of discourse. you had justices like white and others who firmly believed that should be a matter of concern and if brennan was undermining our ability to go after the calculated liar. brennan believed he was never doing that. >> excellent. i have more questions. we have some phenomenal questions from our audience and c-span viewers. you can continue to tweak your questions. here's our first question from twitter. journalismrial historically been a threat like it is today? that's a very good question. the answer is probably not. i think it is more under attack today than it has been in the past. not because of defamation law. been protected. changed is they are more risk for being hauled off to jail for attempting to protect the confidentiality of their sources or reporting what government deems classified information and puts them in line for violating the espionage act that prohibits publishing classified information that might do harm to national security. we've gone through a time in the where theears government has gone record in an saying a journalist could be prosecuted under the espionage act for publishing classified information it received from a source. we have had the attorney general state publicly and will never happen as long as he is attorney general. he is submitted his resignation and is not likely to be around very long. we don't know how good that will be or for how long. act, it's beene invoked by the executive branch. what would justice brennan have said about a prosecution of a journalist under the espionage act question mark -- question mark --? case,the pentagon papers he was firm that there was an extraordinary burden on the government to demonstrate a genuine threat to national security. the pentagon papers were obtained byounts the new york times and other media. the court was divided and a sense that some justices left the door slightly open that there might be times in the government could meet that standard. made itother justices seem as though the government would never be able to meet that standard. we wanted to leave the door ajar . a dust might could come through. >> now we have distinguished between false statements of facts and now truthful but embarrassing statements which are covered by the pentagon which could only be suppressed if they were intended to cause lawless action. it picked up on a standard that he introduced in the 1920's. you need evidence that the toech is likely to lead eminent violence. that is something that america embraces and europe does not. could president obama sue a publication for denying his birth in the united states? >> he could. law, iflly under libel that was viewed as a defamatory statement that injured his reputation, he could win if he showed malice. if the person saying it knew it was false or had reckless disregard for the truth. nope presidents have brought libel suits while in office. , think as a practical matter it's not a good idea. >> if somebody assumes it's true, does that cover you? >> that's an interesting question. it comes up among other things in the rolling stone issue you were talking about. cases, justice stevens wrote an opinion that seemed to expand the meaning of actual knowledge. it used to mean that you had to know that something was false or you needed to know that it was probably false. wrestling -- reckless disregard of the truth meant probable falsity. in 1989, they said the liberal avoidance of the truth. stand stuck your have a and didn't want to know if it was true and just set it, that might be enough evidence by which a jury could find reckless disregard for the truth. if you willfully lined yourself to the truth and didn't do anything to figure out if it was true or false, that might be enough. as that issue gets litigated, it's going to be demonstrated because of the emphasis on actually having a high degree of awareness. >> if we were a country that recognized seditious libel, the birther's might be guilty of seditious libel. thing that it is on the books. the best way to cover yourself is to get your facts from the of theisan website national constitution center. madehere any distinction by the fact that the new york times is an issue over an advertisement rather than reporting? speech964, commercial was not entitled to any real first amendment protection. the court didn't view this as did asial speech, a few political speech because of the content of the ad. there was some discussion among the justices but it wasn't treated as a case. today, it would be viewed as subjected to a different standard. >> what did that hold? >> it draws a number of distinctions about private speech and private commercial speech. basically all bets are off. it's entirely private and commercial, there's not much first amendment protection at all for the publication. i'm going to take the last question because it brings us back to our celebration of one of the original copies of the bill of rights. why were the original amendments dropped? why were they included if they aren't affecting individual rights? most of the amendments were either unnecessary or dangerous. were either unnecessary or dangerous. unnecessary because everyone agreed that human beings have certain natural and unalienable rights by virtue of their being human and therefore you did not have to write it down and then dangerous because if you wrote it down people might assume that if it was not written down, it would not be protected. there were certain provisions regarding congress, important to the congresspeople that proposed it, but less galvanizing to the convention. that is hardly original was not ratified until the 1990's, prohibiting congress without raising its own salary, that was not the most important cause for the anti-federalist. similarly, congress was not as galvanizing and that is why the amendments that we consider the first the ones that madison considered the most important, along with his desire to forbid the sale -- from the distaste from religious conscience. we will pick up our -- this fascinating discussion in our next talk, which analyzes thomas payne and edmund burke. of humana defender of gradualism and tradition. we are going to take a 15 minute break and then return to our wonderful and cc bill of rights book fair. ladies ando that, gentlemen, for starting off this phenomenal day with such intelligence, figure, and illumination, please join me in thanking steve levine and o'neill. [applause] have some gallery -- have some coffee, check out the gallery. it is open now. trades in liberty across the globe. we will be back in 15 minutes. >> c-span live today in philadelphia for a daylong forum on the bill of rights. hearing about some of the key individuals and events that defined the first 10 amendments to the u.s. constitution. next, the author of the book "the great debate: edmund burke, thomas paine, and the birth of right and left." that will be starting shortly, scheduled for 11:15 a.m. eastern time, in about 10 minutes. later today, liberty versus the in the const duchenne, we will be hearing from the authors of of thek "the conscience constitution, the declaration of independence and right to liberty." today's forum will close with a look at the influence of john marshall, the longest-serving chief justice in american history. live coverage continuing in just a moment, but first let's get a look at a few minutes of conversation with jeffrey rosen, who has been leading the conversation today. the events and today's festival at the constitution center. rosen,rey rosen, mr. monday, december 15th, the 223rd anniversary of the ratification of the bill of rights. what is the national constitution center doing on that day? >> we are thrilled to be opening a new of -- a new exhibit that shows one of the 12 surviving original copies of the bill of rights. this is so exciting. basically, george washington sent 13 copies out to be ratified, one of the federal government. 12 survived. one of these will be displayed in a new gallery at the national constitution center, along with rare original copies of the declaration of independence and the first public reading of the constitution. we have an exciting interactive that viewers experience at the constitution center and online, constitution center dot ford, where you can the historicale antecedents, tracing the spread of the liberty across the globe. for example, from general macarthur wrote the japanese constitution he cut and paste the fourth amendment from america. compared with the japanese text. you can do that with any constitution and the world. it is so exciting. this is basically a gallery that tells the story of the evolution of rights. it tells the story of how the rights that were promised in the declaration were implicit in the constitution and then, finally, codified in the bill of rights. a remarkable story, because these basic rights according to the framers came from god, not from government, inherited by virtue of being human. the story of why it was jefferson declared them and madison did not inc. it was necessary to write them down -- he thought it would be unnecessary or dangerous because people would assume that if it was not written down it was not protected. because of the objections madison changed his mind and embraced the bill of rights, the willdible document that we be displaying. >> how long will the exhibition be up? >> for three years. this is basically an historic agreement between the new york public library, which has had this document for the past 100 years, and the conwell the past -- commonwealth of pennsylvania. coinciding with the 220 fifth anniversary of the proposal of the bill of rights and the ratification of the bill of rights in three years. and then it will go back to new york and after three years come back to pennsylvania, we will share it. >> this will be open to the public for three years? >> you can check it out at the constitution center at our beautiful museum of we the people on independence mall, across from independence hall. i feel like i am working in constitutional heaven. every day i get to look out and people can come to see it for the next years. we also have a great micro-site where you can see not only version of the gallery, you can pamphlets if david rubenstein and i have written, which tells the story of the evolution of these rights. you can check out the rights interactive and watch this thread of liberty across the globe and experience are incredible town hall debates. we are not only the museum of we the people, it is a center for debate and education about the constitution that has a mandate from congress to disseminate information about the u.s. const touche and on a nonpartisan basis. we are the only place in the country that brings together all sides in the constitutional debate to talk about not political questions, but constitutional questions so that viewers can make up their own minds. for example we have an exciting advisory board cochaired by leaders from the federal advisory society and the american constitution society. those advisers recommend to us debaters who every work -- every week, and even everyday, debate constitutional issues. viewers can check those out on our website. also our podcasts, getting about 300,000 downloads for week, the audience is growing. every week i will call out the top liberal and conservative constitutional scholars on the question of the week. last week it was the question of race in the criminal justice system. they will debate the issue and viewers can make up their own mind. i am so excited that on bill of rights day especially we are bringing together top liberals and conservatives to debate the constitution on every media platform. >> c-span viewers will be familiar with this, we have covered many of the events that happened at the national constitution center. very quickly, also, c-span will be covering your bill of rights day book festival. can you tell me how that idea came to fruition? >> i would like to think that this is the first book festival in america that the national constitution center has done. we do these great debate on podcasts, videos, events, why not bring together top authors, liberal and conservative, for the current bill of rights themed books? we have four wonderful books. the first one is the evolution of new york times versus sullivan and the end of seditious libel, called the progeny. the second is an important book birthal levin, about how and pain divine -- define the modern right and left in america. and then we have a great book about the relationship between independenceon of and the constitution. and then a beautiful new biography of john marshall. i love the fact that the authors are ideologically diverse. substantive. the 223rdr 15, anniversary of the ratification of the bill of rights. thank you. >> thank you so much. c-span live today in philadelphia for a daylong forum on the bill of rights. we just heard from jeffrey rosen, leading the conversations this morning. the hearing from the author of the book, "the great debate: edmund burke, thomas paine, and the birth of right and left." starting shortly, scheduled to start in about five minutes. i would wait for the next conversation to begin it will take a look at the release of the senate report detailing enhanced interrogations techniques. we will watch as much of it as we can before the conversation starts back up here at the constitution center in philadelphia. we want to start with the release of the senate interrogation report and how it was received by u.s. allies and adversaries last week. guest: any ally of the united states like germany or england or france or others is going to have to square with its own people what role it played or didn't play as part of the interrogation program, and part of this program that is not received as much attention is the extraordinary rendition program, where we ran a fleet of cia planes around the world and countries cooperated with us for secret prisons in places like poland. these governments are now on the line with their own citizens and it does impact them in different ways. germany has a much larger debate brewing about a lot of these issues, from intelligence and surveillance and things going on that they have been frustrated with the united states. it puts pressure on allies. for foes, it depends on which ones we are talking about. if it is a country like russia, preceded by the soviet union, and those that still celebrate it say that all big countries do this sort of thing, so it is a validator. other countries like iran or north korea, some of the gulags and treatment of its citizens there, essentially it is trying to basically shine as big a light as they can on what they see as an american lapse in human rights protection, because we criticize a lot of other nations and the generation would point to the u.s. and what it did in violating the human rights of the people that it detained. host: speaking of u.s. allies, how long do you think the u.s. is going to be dealing with the fallout from this report before they can move on and further their foreign-policy objectives without this overhanging what they are trying to do? guest: i think right now, when it comes to large challenges out there, like isis, in which you have a large group of nations that have come together, that is an immediate problem and i don't think this report will undermine those relationships because strategic relationships happen on different levels. there are near-term challenges we have to deal with that are midterm and long-term. i think that this discussion about detainee interrogation, abuse, and essentially grey wars -- what happens with grey wars is they are not official wars, they are between the laws and rules we have set up. at some level we will be struggling with this for a very long time. when it comes to war fighting and things we're doing with isis, this won't be an issue. host: a man who offered his perspective on what this means for our relationship with our allies, cia director john brennan -- guest: in light of it. host: spoke out at a press conference last thursday. here's what he had to say. [video clip] >> i've spoken to many of my foreign counterparts over the past week to allow them opportunity to prepare for the release of this document and the event that there was going to be any implications for them as a result of information contained in this document, and then could be correlated with other information that is out there, and speculation as to what their countries, the governments, the services might have done. yes, i've spoken to many of them, and there was strong concern. there are things that we do with our partners services under our authorities that -- we have covert action authorities, and covert is something that they were hoping was going to remain such. but what i told them is that it is important for our partnership to move forward and be strengthened in the years ahead because of the challenges we face and i am making sure we are able to do that. host: john brennan there saying he spoke to allies before the report came out. how much of a heads up was given of what was included in the report? was anything in their shockingly new for u.s. allies? guest: i wouldn't say shockingly new, but a lot of people who take a look at what we are calling the torture report is that this debate has been chugging along for quite a while. the journalist jane mayer of "the new yorker" won a pulitzer prize for her book "the dark side," which went into fights in the white house and divide in the bush administration. the bush administration was not cohesive around these policies. there were different schools of thought and battles fought around that. this is a return, if you will, of a debate that played out previously. alex gibney, the filmmaker, won an oscar for his still "taxi to the dark side," which was about bagram prison and the allegations made at that time. we have seen this before. dana priest of "the washington post" won a pulitzer prize for exposing the secret prisons around the world that we had denied. we see that highly secret, classified material has been revealed and we go through a process with allies that is often uncomfortable. i remember the foreign minister of poland refused to confirm or deny the secret prisons inside poland, which dana priest had uncovered. host: went to the site of one of those, photos from outside. guest: it was extraordinary, and extraordinary journalism that we don't often think about. one of the debates emerging is should any of these people within the cia, which even john brennan has acknowledged went past what they allowed -- should there be any indictments, any legal process attached to this, and there is a great group of americans who think there should be and others who think that this was a grey area. when you are in that muck of the discussion, which i think is important for the nation -- when you look at our allies and what they are dealing with and what they may have connected to come it creates similar things within their country. everything happening here creates echo effects in their media and among their citizens and voters, and to the degree that there are people who allow or disallow cooperation with the united states in covert programs, this will create political realities that have to be digested in these other countries. host: among those in the last category of those who did not think the report should be released, senator ted cruz, and in one of his statements after the report was coming up, saying "the problem is that it will ensure that our friends no longer trust us and our enemies no longer fear us." we are talking about u.s. foreign policy efforts. what happens to them in the wake of the so-called interrogation torture report released last week by the senate intelligence committee? we are talking to steve clemons of "the atlantic." phone numbers -- host: we will start on our line for republicans. andrew is calling in from glen rock, new jersey. [applause] ladies and gentlemen, welcome to the second installment of our thrilling, first-ever national constitution center bill of rights book fair. for those of you who are joining us for the first time on c-span, let me introduce this great event briefly one more time. i am jeffrey rosen, the president and ceo of the national constitution center, which is our audience knows is the only institution in america chartered by congress to disseminate information about on a.s. constitution nonpartisan basis. this book festival as part of our daylong celebration. today, december 15, bill of rights day, the 225th anniversary of the proposal of the bill of rights. a new exhibit opening at the constitution center displays one of the 12 original copies of the bill of rights. the copies the george washington sent to the states on october 2, 1789. we are displaying rare copies of the declaration of independence and the constitution. if you happen to be nearby philly or want to jump on a plane, today you can get five dollar admission to the museum and see the bill of rights, but i hope that around the country and around the world people will join us, both here at the museum and online to learn about how the right that were promised in the declaration of independence were implicit in the constitution and finally codified in the bill of rights. i am now thrilled to introduce an old friend and distinguished scholar who has written a superb book, called "the great debate: edmund burke, thomas paine, and the birth of right and left." 1 yuval levin is a prolific member and journalist, -- executive director of the president's executive council on bioethics. this book, described by "the washington post" as a thoughtful introduction to the famous expedition, that is an understatement. in terms that are both deep and anolarly and written in intellectual way, it shows how this debate between two pillars of the alignment, thomas paine and edmund burke, has come to define many of the debates around the world in america today. we began our great love rights the firstiscussing amendment and the natural rights theory that underlay it and madison's eerie that laws restricting criticism of public officials violated the natural right, which comes from god and not the government, to express one's opinions freely. what yuval levin does in this look at how us a that philosophy was broadly shared among the framers and given its most fiery and compelling popular expression in the work of thomas paine. vision contrasts his with that of edmund burke. a very different vision. far from being rooted in the individual natural rights of all men, it was focused more on the organic evolution of society and emphasized gradualism and tradition over justice and individual choice. , first off, welcome to the national constitution center. >> thank you for having me. >> described the fact that they knew each other, first of all. they actually met. talk about their meeting. they were both opposed to the british conduct during the war of american independence. how did they meet? >> it is one of the most extraordinary things of the debates of that time, it took place in a very small world of anglo-american elite. they had been on the same side of the american question. and somewhat for ways, pain --paine somewhat more radically so. he had immigrated here from britain as a man in his early 30's. after the american revolution, paine found himself drawn to what was happening in france. by the time of the french revolution was in france and very involved and very engaged in the debate that preceded their revolution and saw it as his purpose to make the case for revolution in france to the english-speaking world. that meant that he also spent a fair amount of time in london. for the first time he came back to london after first having gone to france and he sought out edmund burke, who he thought of as a kindred spirit, one of the few members of parliament who had aggressively championed the american cause. or at least oppose the british government's treatment of the americans. in they met first for dinner august of 1787. they spent a week together after that. a little bit later that summer. from all accounts, they got along really well. by that time the two of them were expressing pretty different views. of course, not long afterwards they became really champions of the two opposing camps in the debate over the french revolution. even around the american question, they had expressed a different views. they both supported the americans, but for quite different reasons. say, made au fundamentally philosophical argument. an argument that was a case against monarchy, not just a case for the american break with the british monarchy. burke thought that parliament had the right to do with it was doing to the americans, but that it was a stupid thing to do, a mistake that would result in the breakup of the empire. he posted on much more practical grounds. we have to assume that their differences became apparent to them after they spent some time together. they were certainly apparent to everyone not long after that. >> fascinating. one month before the constitution was in fact proposed. you have some interesting thoughts about how paine might have had some questions about the constitution. he favored a unicameral structure. tell us some of the structures that he favored over the difference. >> it is an interesting thing, silentnd burke are both on this issue. even though you would think it would be extremely important to both of them. burke says a few nice things about it, paine we just don't know. even in part -- even in private letters, we just don't know. he never expressed an opinion. he was certainly not friendly to the complicated structure of the american constitution. he always argued for a much simpler system. he wanted a unicameral legislature. youanted no executive -- can see some of his thinking in the original constitutional document from pennsylvania. it was very, very different from the american constitution. he believed in a much more direct democracy, and a sense much more of a radical democrat than the founders. in a sense he was much more of a radical democrat than the founders. way of thinking was about the dangers of power and the need to provide in channel power, but he also did not say much. on of the great frustrations of burke's scholarship, there is a letter from a great friend of him -- of his in ireland. he said -- i will be in london in a few weeks and we should talk about this. if only that trip had been canceled, we might have a letter back from him. presumably, this conversation happened at some point and we just have no idea. >> what do you think you would have made out of it? x he would have been impressed with the federalists. we know that he was generally as impressed with the american constitution. but burke had a complicated elation ship with the american revolution and the american regime. he was a friend of american independence, but he always wanted the argument to be understood in practical terms. he was very resistant to the philosophical case for american independence. theays nothing about declaration of independence, even in his private letters, though we know for a fact that he was resident in parliament, so he was certainly aware of it when it was read. he is very interested in other people. he writes a lot about washington, a little bit about hamill in, but is wary of the more philosophical and radical side of the american founding generation. as you see in reading it, that was not his way of thinking about politics. >> let's talk about the philosophical basis. you mentioned the pennsylvania const fusion, which he had a role in drafting. when you go to our great interactive, you can click on any provision, see the first amendment, and compare it to the pennsylvania constitution of 1776 and see how similar the languages and have different, when it comes to the second amendment, for example, the u.s. wellitution recognizes a militia, the pennsylvania constitution was the only one that explicitly recognized an individual right to self-defense. the others were more collective. c-span viewers who can do this online once the site is up and running later this week, i should they, and i should also say the c-span viewers can tweak tor questions to yuval levin at constitution center using the hashtag nccbillofrights. understandingour of social compact theory is among the most clarifying i have seen, period. page 93, paine on describing what individuals retain and surrender when they move from the state of nature into civil society. i can't better than you do, if you want to read from it, you can, but give us the elevator speech for what thomas paine understood the purpose of government was and how his role was to protect natural rights in exchange for greater security, safety, and protection of the inalienable rights that were exchanged. >> paine makes a very stark, lockeian case. argumenthink of is the coming from john locke, it is fair to say that his own argument is more complicated than that, but paine argues that we need to understand individual rights is emanating from the fact that every individual derives his right directly, not through society. we have the famous thought experiment on the state of nature, where we understand society and its rights and we should think about society as coming out of a situation in which independent individuals, completely separate from each other, come together by choice to form a society. it is the compact that they make with each other that is the fundamental law of that society. it exists to protect the rights that they have as individuals. it does not give them new rights . they do not get the rights from society. they bring the rights into society. it offers them protection, physical safety, safety for their property, and an ability to make use of their rights that they would not otherwise be able to in the state of nature. basically, society exists to protect the individual's right of choice, fundamentally. ultimately, that is the purpose of society. it is a stark and radical way of understanding the sources of what we think of as political rights. begins very early in his career by asking a basic question about that idea, which is -- if in fact no human being has ever lived in such a state of nature, if there is no way that anyone ever existed outside of a society, how does it make sense to understand our rights in society as deriving from a kind of experiment that has no relation to the reality of human experience? isn't it a problem that this is just a thought experiment and never existed? society,rights in rather than what are the rights that we imagine for ourselves outside society? make ane wants to argument for rights. he is a believer and it is very important to him not to let people with these more radical views of a democratic society take ownership of these terms. so, burke really insists on defining rights his way, defining liberty in his way, defining a quality in his way, not allowing these terms to be defined in only the most radical possible way in understanding them. he wants to say that rights, ultimately, must be understood is the function of a society that existed before us. every human being has always been born into a society, not outside society. we have to understand our rights inherently and as the fighting our relationship to other people in a society. defining our relationship to other people in a society. individuals, but they both argue about it from very different angles, from a very different point of origin. paine always wants to understand the liberal society as an innovation, a break from the past and possible my new insights gained in the enlightenment. always wants to understand society as an extension of western civilization, not as something newly discovered but is something gradually built up and evolved over many generations, as something connected to the western tradition rather than as a fundamental rejection of the western tradition. the debate between them once of being a debate between a side that sees the liberal society as a break to be advanced and brought to full, or as an achievement to be conserved. in that sense, a progressive vision of liberalism and the conservative vision of liberalism. from the outset it has been the argument about the nature of a liberal society. >> you express the contrast between the two visions of the status of national rights. is important for the audience to understand exactly which otherspaine and the considered civil, which were alienable and unalienable. if we don't understand that, we cannot understand why madison thought the most important amendment in his list was the one that might have inhibited the states from abridging freedom of speech and religious consciousness. i am going to read from paine, because i thought this was such a great passage that you included. "people trade freedom for protection, but they don't give up their own unalienable rights. are the national rights and you need to distinguish between the rights you can individually exercise, fully and perfectly, and those that you cannot. these first are the rights of speaking, giving opinions, and those that can be fully aid of theithout the exterior assistance. the second time, the inalienable ones for protection" -- that is a term of art, you get it from the state of nature, including property an possessing , thus i consider civil rights indistinguishable from national rights." in our next discussion you will see how this right could not be deprived without due process was considered inalienable, rather than unalienable, which is why for morers allowed restrictions on it. thank you for letting me spell that out, helping to elucidate, if we will. coming for the consequence of this theory was were their views on revolution. you say that paine emphasize the first half, burke emphasized the second half. what did they believe it was the people's duty to do when government infringes on natural rights? >> what you see in that quote is the central place that paine and thats like him gave, people come into society with a right to think freely and that always remains a very important night -- right to protect. that is one thing that the government cannot limit. alternately, what this amounts to for both of them, i suggest that they understood the liberal society and relatively different ways. emphasizesat burke continuity, seeing that society as having gradually involved, -- eve auld, especially in the rich experience -- eve auld -- evolved, especially in the british experience. especially for the philosophical principles in society. for paine, those principles are directly, they have to be applied and allowed to become ruled -- real. these are both evident in the declaration of independence. both the conservative and progressive views are evident at the same time. the opening of the declaration is a very radical declaration of principles. it asserts the right to act on those when government restricts them. so, what paine would say is that if the government is not protecting your rights, you have a right to overthrow it and begin again. start over from the principles, bill the government on those principles. that is certainly evident in the declaration of independence. after stating those radical principles, the declaration makes it turns -- makes a turn towards a list of grievances that the americans had justifying why it was time for revolution. those grievances, if you look at them, are all about continuity. they accuse the king of not allowing them to keep the system that they had before. they are not arguing in the second part that they need to start over from scratch, based on the right kinds of principles . they used argue that they had a legitimate government, and fairly recently the british government has started to rob them of their rights. all of those grievances listed are basically about allowing the colonists to continue to preserve the political tradition that they had. i'm much more conservative case for revolution. -- a much more conservative case for revolution. reading the declaration of independence, you have to ask yourself -- did these people think that monarchy was necessarily a legitimate everywhere? or did they think that the particular monarchy that they were living under was treating ?hem in an illegitimate way it can be read both ways. , spain cannot be read both ways. he certainly thought that illegitimate. cannot be read both ways. he certainly thought that monarchy was illegitimate. it does not allow people the right to choose their leaders, to choose their future. iske argues that monarchy one of the legitimate forms of government, but it certainly has to treat its own people in a legitimate way. that debate, one form of the original debate, is evident in the american founding and has always been a part of our national conversation about politics from the beginning. >> this is one of her most provocative claims. as expressed in both parts of the declaration itself, infusing american history and defining the parameters of our first debate. you don't talk much about the 19th century and what happened between the declaration and today. would it be fair to say that the calhoun, there defenders of slavery, where the paine acolytes were people like lincoln and frederick douglass? thatdon't think that it is simple. burke himself was an opponent of slavery. on moral grounds. he took it to be a question outside politics. slavery itself had been abolished in british life by then. but the slave trade is very much a part of the british empire and burke wanted it ended. he was one of the first signatories of the first year that they put the petition out in parliament. there were only four signatories and burke was one of them. i also think that lincoln, in his arguments, showed the presence of both of these ways of thinking about american life. lincoln, in a way, discovered memory, making the che -- making the case, especially as president, for understanding the amid -- the american tradition, not that old at that time, fourscore score and seven years, for understanding that tradition is an ancient tradition, described as our ancient faith. it was not that ancient. he understood why it would be helpful to understand the principles of the republic as an inheritance, not just as an innovation. i think that lincoln himself contains both strands. i would not say that he simply represents the more radical element of american life. lincoln was certainly a fan of understanding himself and that principle in american politics. it is important to understand principles are also important in understanding the principle of american politics. it has to do with the question of how we can know the principles and how they are applied to specific circumstances. 'srke's complained about paine way of thinking was that they thought that they could take principles directly from political philosophy and apply them like a formula onto political life. argues that principles do not work that way in politics. we can never know them quite that explicitly. the best way to know them is through the experience of political life. that is, a society is a dilemma -- develops rubs against these principles. it takes on the shape. so, when you arrive at a question of principle in politics and a one good way to answer that question would be to think -- what way of proceeding would be most like our best selves? instead of saying -- what way of proceeding is demanded by a specific principle? he thinks that politics is not math, politics is not physics, it is a way of society finding a best way to be more like its best self. for him, that is the political challenge. powerful answer to the fact that lincoln was an acolyte of natural rights, saying that he embraced both burke and paine. what is your response, in that spirit, to the famous claim of louis hart, from harvard, who wrote in his famous book, "the liberal tradition," "in the beginning all the world was america, america has always been lockean and based in natural rights at its core, based on the absence of fuel is him." thus he said that it was a tradition not embraced by the framers. what is your response to that? >> there has always been a strand among theorists and historians of america that wants to say that america started from scratch. that is, in essence, what john locke was saying. it is not -- i don't think it is affordable by american history. american history does not actually begin in american revolution. you can see that, in the american declaration of independence, harkening back to a political tradition that says we have been living in a certain way for several hundred years and that way is now being denied to us and we want to recover it. there is that demand for recovery of conservative is seduction -- conservative assertion. he makes the case that america has always been democratic. for him that is not an argument in thinking that the american case for democracy is purely principled, saying that america's political tradition has always been democrat. the american people have the luxury of continuing to live in their tradition, a democratic age. that american life is better suited to a liberal area that shara -- the valera -- liberal era. americans have a long-standing democratic tradition, both democratic and a tradition, therefore there is room in it for a certain kind of let -- radicalism and conservatism. that is their great strength. the french revolution was a struggle between both sides. one was going to win, the other was going to lose. the american revolution contained both of those sides, with a republic that contains them both. it is always to the pole and push of these two are they created a space where they could be a free people and at the same time value liberty and order. i think it is our great fortune that we have had that this course. discourse. >> you talk powerfully about how paine is the hero of today's progressives and also embraced the prototypical version of the welfare state, supporting relief , whohe poor, whereas burke supported traditional institutions, families and to modernhe heir conservatism. are there aspects to burke that are obsolete? he wrote flattering letters on the political wisdom of the inherent aristocracy. particularly archaic, in that light. us, or isill speak to some of it irrelevant? >> no question about it, burke is an englishman working in a late 18th century english context. certainly, not all of that to us. also, to argue that burke and paine r the arbiters of left and right, that is a genealogical argument. i am not saying the conservatives are who they are because they have read burke, or that liberals are who they are because they have read paine. rather that one side of society sees it as a break, trying to perfect a theoretical construct, the other sees it as an achievement that is trying to define a long-standing accomplishment of western civilization. these are two ways that arrived, over and over, in debates by the anglo-american tradition in general nowadays. are usefulaine because they are present at the outset of that tradition, offering an especially clear debate on those principles. they are very clear, arguing about those principles and fundamental ways. they understand where they'd agree -- where they agree better than others. that theyd not say are simply fathers in the literal sense. i would not say that everything about burke is useful to consumers. certainly, not everything about burke is shared by the american consumer. himself, ande speaking about the americans of the time of the american revolution, one of his great speeches in parliament opposing the policy of the government, offers a kind of character description of the americans. it used to be read aloud at american schools. it is a wonderful thing to read. what he says, first, is that americans are obsessed with ursula liberty, utterly obsessed with it. he says that they smell threats to their liberty in the air. that they constantly see them coming. and in this way they are different from their british cousins. his argument against the british government was that this had to be understood about them. if you are going to govern the americans, you have to understand their character, and the character is in obsession with personal -- is an obsession with personal liberty. and they translate their obsession into tax policy. still true. [laughter] a huge mistakey to tax the americans in a way that they find of noxious. find other ways to raise the money. this is a terrible way to treat these particular people. there are definitely differences in character between americans and englishman. the basic disposition see still a lot of what we think about it now. >> that is a great detail in his response to the british, saying that you are threatening the very character of america. >> use a tax, they hear freedom. >> and he was right. -- you say tax, they hear freedom. >> and he was right. [laughter] but about this provocative claim that burke was the heir to having beens, paine discovered in the 1980 convention, with obama discovering burke in saying that he wanted to resist dramatic transformation of the welfare state, that he was a minimalist gradualistal list -- . certainly, the tea party is full rhetoric, and after this we are about to have a discussion with a paineian libertarian and every respect. >> he has written a superb book. >> we will discuss it, have a debate, everyone needs to come back after lunch. but who are the burkeians? >> reagan and obama are an inversion. they are making arguments that are not quite true. reagan loved to quote paine, certainly the least conservative thing that paine ever said, maybe anyone, that we have it in our power to begin the world over again. andan made this case calling to the american people to do great things again, saying that we are not over, we still have the capacity to do the kinds of great things that americans have done in the past. he was not arguing for an end to was.ion, as paine i would say this, that the basic very disposition is still powerful and conservatives. in three ways. the debate between burke and paine can be thought about along three axes. first of all, he thinks about it by looking at a world that has both good and bad in it. he sees the good first, is impressed by the good first. he wants to use the best that they have to address the worst of what we have. he does this because they have very low expectations. he is impressed that anything works at all in society. [laughter] rather than starting by saying that things should be better, he starts out by saying that things could be a lot worse. outrage, heeat thinks we have discovered the right way to do this, that we have the right principles, but that we have these oppressive governments standing in the way of applying them. he is fundamentally outraged by the status quo at all times. this is a difference that you can still see. burke was outraged most of the time, but his outrage was about losing things that we had, losing things that were the inheritance, the possession of the party he was part of, rather than an outrage at having things that we ought to have. it still tells you a lot about the left and the right. secondly, burke had a limited notion of what human knowledge and power to do in society. i think that these kinds of epistemological differences are very important to understanding burke. inthinks that science politics is the most' state that the radicals have proposed. at the knowledge available to physicists in a physics problem could be available to a statement in a social problem. the knowledge of society is always dispersed, always partial. it is not possible to think of politics in technical terms. paine wants to say that it can be. science, including the science of politics, has a lot to offer, including as a technical science, in addressing social problems. as part of that he wants to say that the government will serve as a needs to applying these problems -- applying themselves to these problems. burke wants to use the mechanisms that we have to channel for knowledge possessed by individuals, but at no point is possessed by the center, as technical knowledge by anybody. these kinds of institutions are the ones that exist or to any individual in the state. the community, religious and civic organizations, and the market, these are ways of channeling social knowledge, moving knowledge from the bottom up. he thinks that these are not legitimate institutions, politically. not radically elected. nobody gave the catholic church the right to run hospitals. how are they making decisions about how to run this or that? believes that you can concentrate knowledge in the middle and apply it. as long as it is done an electedy, by government, it is an effective way to solve social problems and a legitimate way to solve social problems. very says that that is all nice, but not possible, government has to serve as a way to enable the intermediate institutions to do what they do. that argument is still very much alive and you see it in our economic debates. if you think about the health-care debate we have been having, it is exactly this argument, a debate about whether we saw a complicated problem by applying technical knowledge from the center or by empowering the institutions that apply if use social knowledge, in this case a market institution. a lot of the debate about the welfare state the day is about -- welfare state today is about whether we should apply technical knowledge or diffusing institutions that allow social knowledge to work. it is the education debate, well father -- welfare debate, and a lot of the economic debate. >> who is the most burkeian politician and supreme court justice? what the second one is easy, justice alito is easily the most burkeian. on most simple expression that is how he differs from the other conservatives on the board. alito is very concerned for tradition, very concerned for local differences, less concerned for a direct application of abstract principles. he is certainly the burkeian, and i think he would say so. politicians, that is more difficult. i think that there are ways, especially if you think about the kinds of economic debates that we have, ways of seeing the people who leave the debates on the right, like all ryan and mike lee from utah -- paul ryan and mike lee, from utah, in their temperaments i think they are more aggressive than he would be, operating in different circumstances. most of the tenor and tone sounds like paine, more than burke, but if you get past the .one it is very burke >> justice alito came here in gave the most wonderful speech for our preview of the bill of rights gallery, masterfully talking about the relationship between new york and pennsylvania and using george washington as a figure that united them both. he is, of course, and incrementalist, resisting claims that somen precedents of his more paine-like colleagues have embraced. that leads me to ask, what would paine think about judicial review? you said that paine thought that every age and generation must be free to ask for -- to ask for itself.- act for how could he have justified unelected judges striking down laws passed by the people in the here and now is the name of the dead hand of the past? issueare getting to an but that he would not have had trouble as it did shape or the constitutional system. as you say, paine argued that every generation needed to be free of its predecessors in the same way that every individual needed to be free of it neighbors --of the of their neighbors. thinks that he cannot understand individuals apart from those relationships. everyone is born into a world that exists before us, into a s andf relationship privileges that we did not choose. problem, it was a though undeniably a fact. he wanted the system of government to liberate people from that as much as possible, liberate them from generational obligations as much as it graded them from the oppression of those around them. the place in the court as it has taken shape would have been a problem for him in that respect. the radicalism of the fundamental claim has to be understood. thomas jefferson said something like this, too. there is an exchange of letters between jefferson and madison where jefferson makes something very much like paine's claim. that every law should expire after a generation. madison right back this wonderful letter where he gently says -- if you think about what things will look like on the days that the laws expire, i'm not sure that you want to do this. [laughter] the radicalism of jefferson's kind of liberalism goes that far and there are times when he was willing to take it to its logical occlusion and times where he wasn't. paine always took it to its logical conclusion and it results in arguments like those. >> this is great. i have a follow-up. i want to put in one more plug during our remaining 15 audience for our c-span audience to treat us your questions. tweet us your questions. by the end of his days, jefferson was questioning aboutls, as we will learn in our final talk of the evening. in that sense, what was pain and and jefferson's alternative? did they believe there should be actual revolution? will tell you -- >> i will tell you, one of the things that becomes illuminated when you think about that question, they both thought if you let democracy be democratic enoughth

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