and to our great c-span audience here is what's going on at the national constitution center today. the most exciting bill of rights day in memory. today, december 15 is the 223rd anniversary of the bill of rights ratification at the 225th anniversary of its proposal, this is the day we at the national constitution center open a new gallery displaying one of the 12 original copies of the bill of rights along with rare copies of the declaration of independence and the constitution center. i should say i am jeff rosen president of the national constitution center which as a hearty audience knows because of introduced it to times already is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. we had the idea of summoning the best constitutional thinkers in america from the left and right at all sides of the political spectrum who have written of the most interesting books about the constitution for the constitution centers first ever bill of rights book fair and this is the third installment of this wonderful experiment. c-span viewers can tweak their questions do at constitution center using hashtag ncc bill of rights. and our hearty and loyal and intelligent engaged audience can now engage in the third installment of the conversation that flows so naturally that all of us are learning about the historic sources of the bill of rights, about the philosophical disputes about exactly what it stood for from the beginning, and about it historic develop a contemporary meeting -- meaning. we talked about the central battle over whether seditious libel, whether you could criticize government officials was or was not permitted by the first amendment. we learned james madison thought it was not because free speech was a natural right but it took the supreme court until the 1960s to recognize the principle. been in the second conversation that great conversation we saw the discussion between madison and jefferson and john adams was part of a broader debate between the acolytes of thomas paine who advocated a natural rights view of the constitution and those are more sympathetic to edmund burke and favorite evolution and continuity and tradition. and now in this third installment we've got a blockbuster debate because we have with those of the author of a fascinating and important new book. he is timothy sandefur. is written "the conscience of the constitution: the declaration of independence and the right to liberty." and in this book he argues that the tradition of thomas paine we heard about in the last show really was at the core of jefferson's declaration and his view should be at the core of the constitution. and the judges today should construe the constitution in light of the declarations presumption of liberty and should strike down laws that are, that arbitrarily interfere with people's freedom as long as freedom doesn't harm others. he criticizes the court for being too deferential and in particular he criticizes judicial restraint represent on the supreme court by justice oliver wendell holmes and louis brandeis on the left by justices antonin scalia and robert bork on the right and represent in the academy by professor kermit roosevelt who timothy sandefur has some vigorous and provocative criticisms for and we'll just have a great debate about what did the framers intent? was a perception of liberty records would be acting and developing laws rights that were not written down in the text of the constitution, or do they have a presumption of democracy were generally it was up to legislators not the court defined liberty and courts should be restricted to strike and only those laws that violated clearly enumerated constitutional rights? very brief introduction for our two great scholars. timothy sandefur is a principal attorney at the pacific legal foundation and hence the foundations economic liberty project which protects authors against abusive regulation. is an adjunct scholar at the cato and the author three books including his most recent one. professor kermit roosevelt is a scholar at the national constitution center as well as professor black university of pennsylvania law school specializing in constitutional law, a clerk for judge stephen williams and justice david souter, and he is written four books including conflict of laws, and the book that is the object of timothy sandefur's ire, and that is "the myth of judicial activism," making sense of supreme court decisions. lease join me in welcoming timothy sandefur and kermit roosevelt. [applause] tim, i'm so glad you're here. you have written a passionate and vigorous defense of the constitution of liberty. you begin by saying that constitutional history has always hovered in the mutual resistance of two principles the right of each individual to be free of the power of the majority to make rules. tell us about this principle which you call the primacy of liberty. is it is expressed in the declaration embraced by abolitionist the constitution should be interpreted in light of it. how should judges determined the constitution and by the presumption of liberty? >> the idea when you look at political institutions, the constitution or our legal system or what have you, we start with the premise that people own their own lives and at the right to direct their own lives without arbitrary interference by somebody else. if they are harming other people that is depriving other people of the right to run their lives with his role for government to intervene to protect people. we start with the resumption people are free with certain inalienable rights and the greek government to protect those rights and if the government abuses those rights, the people can abolish that cover. that's the presumption of liberty. our basic assumptions people should be free unless there's good reason to restrict their freedom. as opposed to what i take to be the general view in the academy today, lawyers, judges and law professors are predominately in america today believe that freedom is the presence of the government gets you, that you are as free as the government allows you to be and that you only free if the government says you are. we find this theme throughout our law in the form of permits them to use your property or to earn a living as you choose, laws that say you're not allowed to build your property, not allowed to build until your first to get the government's permission. we also find in the realm of constitutional law particularly in what courts called rational basis scrutiny which is a test the court will use when determine whether a law is constitutional or not in some areas of our law. under that theory the court presumes that the law is constitutional and requires the plaintiff to quote disprove every conceivable basis for the law into quote. now, you lame after probably thinking that's not possible to prove a negative. that's right. nor is it possible to disprove an infinite number of negatives and yet that is what courts require you to do when you go to court to defend your property rights, or economic freedom against arbitrary government interference. so my argument is that really the basic thesis of my book can be summed up by fraser and justice thomas who said anything some years ago something has gone seriously awry with discourse interpretation of the constitution. but what has gone seriously awry is that particularly intellectual elite have disregard this idea of the primacy of liberty, the idea that people are free and have the right to run their own lives and loves there's legitimate reason for restriction. >> great. a strong statement of a provocative thesis. the primacy of liberty means the jury is no print right to rule. you must just within limits imposed on individual freedom to a reference the public principle preventing people from harming one another. i want to start with history. tempest make a claim about original understanding and he says the framers would've understood the declaration of independence to be law and embodied this harm principle and that judges today should enforce it. justice scalia and others have disputed that. scalia said the declaration is not part of our law and he says the right the declaration called in a level are not conferring powers and courts and expressed disdain for what he calls you may do what you like so long as it does not injure someone else whole idea. basically he says the supporters are trying to read their own philosophical preferences or those of john stuart mill or thomas jefferson or thomas paine into the constitution. what is your reading of constitutional history and who has a better historical argument of? >> well, let me start by thank you for having me here ideology for coming in thanking him for such a thoughtful and sustained discussion of the book although i encourage you to buy the book rather than just relying -- mike -- [laughter] i think the declaration is not law. i have a fair eminence and the footage of natural rights. a fair amount of simply for the idea that rights precede government. that we create governments to protect and secure our rights but i believe that the government does the constitution does give us judicially enforceable rights. if you go into court and asking a judge to strike down some law on the basis of the right that should be constitutional right, something you can find in the constitution, not something that preexist government. i have something more provocative to say also. which is that on a huge fan of the declaration having thought about it a bit more. because i think the declaration is fundamentally not really about liberty but about self-determination. it does have this political philosophy. we greek government to secure our rights. what happens if the government is abridging those rights in an oppressive way? the declarations ideas that you go to court to get a judge to strike it down to the the declarations id issue alter or abolish that form of government. you've seen that idea in american history not in the locker area. we've seen it in the civil war. so in my view the declaration is not what we should be looking to as the statement of our foundational values. it is certainly not law. the declaration gives us a political philosophy that finds its full flower in the civil war which i think you can consider the second american revolution and really ends there. we don't believe in secession anymore but we don't believe in this can kind self-determination but if you're looking for fundamental values you should be looking instead i think to the gettysburg address. if i could just say -- >> please. >> i was criticizing him a little bit. i spoke to i'm going to separate -- going to criticize you. >> in that case i'm going to take out my pocket constitution, to. >> i have it memorized. [applause] spent just to make it a fair fight -- [laughter] >> i constitution smackdown. >> on wednesdays you got the declaration, yet the constitution. i want you to include the gettysburg address. >> okay, done. bravo. since this is not a set up and this was a plug for a great new pocket constitution each have an introductory essay by me and david rubenstein who has lent us the declaration of independence which tend just expressed disdain for comment point of this essay is to tell the story about how the rights that were implicit in the constituconstitu tion, sorry, promised in the declaration or insisted in the constitution and codified in the bill of rights. the fifth quite lifting as it doesn't answer the question which is where those unenumerated rights in the declaration judicially enforceable? in other words, no one is disagreeing that the rights of free speech, of conscience and so forth are enforceable by courts. camp is claiming there are certain enumerated natural rights which are not listed in the constitution that are protected by the ninth amendment which is the enumeration of certain rights shall not be construed to deny or disparage others retained by the people should be enforced by judge. this is the biggest constitutional dispute of the 20th century basically, whose right,? if you respond to the provocative statement that the declaration is not law that basically you've all lebanon and the show before this one agreed. he said, spend would not have counted on -- you would expect people people to rise up and exercise the right of revolution to alter and abolish government. so what is your response to the idea that the civil war was the right response not courts? i think you have a response. >> remember the decoration says when a long train of abuses reduces announce a destitute is is our right, our duty to co-opt such government. we only can find out if that is the case after having exhausted the lawful routes for securing the rights which government is entrusted with securing. so if, for example, a police officer wrongly searches my home is the proper response rebellion against the government? know. i the constitutional guarantee that i can go to court and seek enforcement of and in fact, the founding fathers when writing the declaration of independence, they took every lawful meaning at their disposal before taking the final revolutionary step of declaring independence. so although of course i agree that the right of revolution to secure individual rights is an inherent part of our system of government, it's of course a less than you do before then to give exhaust the mechanisms that the law provides for protecting your rights and one of those is the court system. to the courts have the right to enforce our unenumerated rights? i object to the term because the constitution guarantees liberty. the word liberty is enumerated written into the constitution. the word liberty doesn't come in discrete particles. liberty is a broad freedom to do as you please along as you all know other people thought would object to the idea that for example, my right to run barefoot through sprinklers on a hot summer day is an unenumerated right. in fact, it is enumerated. it is part of my liberty. it is in the constitution. no government has the right to arbitrarily take away my right to run barefoot has been put on a hot summer day. if the government tries to do that i go to court. if the government denies redress over and over again and the long train of abuses designed to reduce, they would take the step of revolution. >> tim, would a law permitting the government from having as tiptip toe through the tulips on a hot summer day violate liberty protected by the constitution? >> well, yeah, sure. it restrained your liberty. the constitution does mention liberty. the constitution mentions a bunch of other things. so i don't think it's a really to pose the question is liberty or democracy for fundamental constitutional value. the constitution does mention liberty, equality. it doesn't mention that argument also protects privacy. the thing about many of these constitutional rights our constitutional values which i think tim brings out so well in his opening to this book when he discusses abraham lincoln's terrible, the wolves and sheep come is when you restrict one person's liberty, the liberty of the wolf in lincoln's ear, you are enhancing someone else's liberty, the liberty of the sheep. the sheep will say the government has increased my liberty, isn't that great? and the willful say the government has restricted my liberty, isn't that terrible? the fundamental question that we are asking here in my view is who is going to decide is the wolf right or is the sheep right? when do we trust the democratic process to do that when do we trust the democrats process to reach the right results everybody and protecting our rights, and when we think judges should step in? because the judgment calls that some of these questions require, it's not a purely legal question. the government has some reason for restraining liberty. navy it's going to enhance the liberty of someone else and who decides whether this is a net increase in liberty or not? may be a judge is good at making some of these decisions, maybe sometimes the reason she can't trust the legislature but in many cases, and i would say most, leaving things up to the democratic process is the wiser way to go. >> so the debate is joined. 10, i want to get into specifics. one of the rich and provocative chapter sure you have is a civil war and the incomplete reconstruction. there's a tremendous amount in your but if i could summarize it and have you react to it. you say there were abolitionists led by frederick douglass who believe even the slavery seem to be explicitly contemplated in the constitution, in fact slavery violated the constitution properly understood in light of the declaration of independence because people residing in the u.s. when the constitution was ratified were citizens. the constitution protects all citizens and their rights to life, liberty and property. slavery violated those rights and was unconstitutional. there are more sophisticated arguments involving the clause of article iv where the author of the 14th and the body contained an ellipsis and said the citizens of each state are entitled to the privileges of citizens of the united states in several states, and basically that there was a basic rights for you citizens being denied this was to you think of the story, forgive me for summarizing, you tell the story about how there was a civil war fought lincoln has his gettysburg address. congress wants to protect the rights of the friedman passes the 13th amendment which turns 150 mixture and we will have a 13th amendment and have a year-long celebration of the 150th anniversary of and the 14th amendment which has the privileges shall not be infringed, and you talk about how this clause which the framers led by john bingham died would bind the states as well as the federal government was eviscerated by the supreme court in the slaughterhouse case and suggest the were from louisiana was the same pennsylvania supreme court justice who had written judicial decisions denying liberty before the civil war. so you make a strong case that the abolitionists thought they were basically implicit natural rights being violated by slavery but they still thought it took a constitutional amendment to explicitly protect those rights. so what is your basis for concluding that john bingham in the of the framers of the 14th amendment included not only the rights enumerated in the bill of rights and the common law rights that were listed in a case called corfield, the right to travel and to make -- why do you think that also enables judges decide what they got was arbitrary, and which deprivation of liberty were unjustified? >> well now, this is i think one of the most fascinating stories in history of the american constitutional law. it is often skimmed over in constitutional history because we tend to go straight from the framers the kind of jump to the post-civil war era to the present day. really the 1830s was a time of intellectual ferment like we rarely have seen in this country with the basically the construction of the proslavery constitutional theory and then as the antislavery constitutional theory, led chiefly i argue by john quincy adams after he left the presidency and was in congress. he was the godfather of what i take to be delivered to an interpretation of the constitution. the antislavery theory that eventually climaxed in the ratification of the 14th amendment. it's a fascinating story of why it was that douglas and his followers in the movement thought slavery was already unconstitutional before the 13th amendment. it's an interesting argument but i try not to take a position singer is out to right or exact wrong because i don't think it was a right answer at that point. that's just want an amendment was necessary. by the time the enemy, the 14th amendment came around what happened was this others were out of congress, the war was over, the south had been was laid waste by the war and the radical republicans on this as their opportunity to put their constitutional theory permit into the constitution, not so much to say they were changing the constitution to restore what they thought had always been in the constitution, that is to restore the principles of the primacy of individual liberty among other things. so the 14th amendment begins all persons born and naturalized in the united states and subject to the jurisdiction thereof for citizens of the united states end of the state wherein they reside. that's incredibly important because until the time the constitution have never designed -- defined citizenship and the whole idea of states being sovereign, which unfortunate you still even hear people say today, the idea that states are sovereign is obliterated by this cause because sovereign can't define its own session should states have no authority to declare whose own citizens are under this amendment. the state of california has no role in deciding whether not i am a californian a. the second clause is no state shall make or enforce any law which shall abridge the privileges or immunity is a citizen of the united states. what are these privileges? it's a legal term of art. we look back at the legal history, is defined 50 years beforehand and in other prior legal residents and legal scholars would explain that these included these individual rights, natural rights, common law rights that were not protected against the states. why the courts have role in enforcing them? the constitution says no state shall make or enforce any law which shall abridge these right. if the state comes to me and says, i'm going to take away your federally protected so bright, take away your freedom of speech for instance. i'm going to pass a statute that says tim sandefur may no longer express his opinions on politics. i express my pensions and get arrested, dragged her to chill. what am i going to do? i'm going to say this law has deprived me of my privilege and immunity to it and it is a frightening -- deprive me of my freedom without due process of law. it is invalid, can't qualify as a law and, therefore i'm deprived. which the court wednesday? he was in my imprisonment is illegal, i hope, right? we talk about the site of where the judges get their authority? their role is to interpret the law and these rights are part of the law. that was well-known to the american founders in the '70s '80s because before the bill of rights all rights all right for an enumerated. the rights protected by the english common law for at least 200 years, before that event, were all an enumerated right. english courts upheld the rights of british subjects long before the american revolution and they did so even though there was no written constitution in great britain, no bill of rights. these are all tiny number and rights. that's why they wrote the ninth amendment to protect rights not specifically listed, and the 14th amendment in the 1860s was written in order to protect the privileges or immunities of citizens of the united states. >> it was a long question and an excellent answer. and now we're in the late 18th century, the 14th amendment is passed to the supreme court has eviscerated it in the slaughterhouse cases by saying its intent which was to apply the bill of rights against the state can't be achieved and has resulted took almost another 100 years for that to happen, but nevertheless the courts in particular the supreme court went on to do exactly what 10 is suggesting striking down basically economic legislation in the name of the liberty protected by the 14th amendment. in the famous or infamous depending on your point of view lochner case at the beginning of the 20th century, the court invalidated new york's maximum our law for baker's and struck down whole bunch of other laws. there was such an objection to this among progressive that franklin roosevelt won election on his opposition to judicial activism and the court retreated, switched its position and said they will generally uphold economic regulation and less they are wholly rational but to enforce individual rights like free speech and so forth more aggressively. tell us please why the progressives thought the economic cases such as lochner were not faithful to the constitution, but the danger of that so judicial activism is and why the 19th century cases should not be followed? >> that's a good question spent that's what we are all about here. spent i will try to give a relatively short answer. but i said before that the constitution protects a lot of different things. and frequently when the legislature ask, when the government ask it is promoting one person's constitutional rights or interest at the expense of another. so you can imagine a worker let's say working in a factory for maybe 14, 16 hours a day. sorting and cutting fabric, let's say. and maybe being exposed to harmful dust in the air or something that the working conditions aren't that great. and maybe the doors are locked because the owners think workers are stealing things, and this is a 13 year old girl, let's say. so how much freedom does she have? when the building catches fire and the doors are locked, she has the freedom to choose whether to die from smoke and flame or to jump from the window, as many of them did your and if the government comes along and says no you can do that you can't strike that bargain, you can't work 16 hours a week you can have these working conditions, you can't pay these people so little money that have to work 16 hours to make ends meet. it's reduced liberty certainly in a formal sense you can do is reduce the liberty conduct of both sides which is what the supreme court actually says in the lochner decision but it says that the nuke legislature by setting maximum hour laws for baker's had infringed on the conduct of both employer and employee. if you think about it in a substantive sense in terms of what kinds of freedoms these people have to lead meaningful and fulfilling lives to pursue their vision of themselves as flourishing human beings and not just automatons on an assembly line, you might think that actually enhance the liberty of the workers. you want courts to step in? because in some form of his liver has been reduced were going to strike this down and say it's unconstitutional. or are you going to give some deference to the considered judgment of the democratic process that, in fact some sorts of restrictions on bargaining power are actually in the public interest. that was the question a lot of course was asking, or do you enhance liberty in some way that outweighs the restrictions to liberty of contract in a formal sense. and i would say on a lot of these questions, unless there's some good reason to doubt the good faith or the competence or the care of the legislature, and tim under can give us a lot of examples of situations where legislators have done terrible things. you can't have too much legislation, but i would say most of the time the answer is yes, you can trust the democratic process. and it actually leads us to good results and better results than we would get if we tried simply to promote and form a liberty of contract. >> great. he says we can trust the democratic process more than we can trust courts to choose among competing policy preferences. and in this sense he is sort of channeling justice oliver wendell holmes and job and i could get a justice holmes who goes off to the civil war as an abolitionist recusing dude in his mother's idealism. is at antietam, 70,000 people dead, 20,000 dead or wounded. he himself is wounded and almost dies and you lose all faith in abolitionism and ideals and becomes such a nihilist that he believes that the strong have to be allowed to impose their will on the week to the democratic process because if they can't do it through law, they will do it through violence. but he doesn't have any faith as you say i go to get these are good laws. he says i loath the thick fingered clowns we call the people. is not a progressive at all that in his view and in his famous dissent in lochner he says the constitution is made for people of fundamentally differing points of view. the constitution does not enact mr. herbert spencer's social status, this incredible line he cites this creepy, or inspiring getting on your perspective libertarian social darwinists who holmes himself embraces but he is saying we shouldn't post a social darwinists of you at a time when the nuke legislature is embracing a progressive view the you disagree strongly. a point of your book is that the constitution can survive only more people who agree on basic precepts regarding political authority but you don't agree that it's made for people of fundamentally different points of view. >> the most untrue statement uttered in the supreme court spent where to get get your confidence if you want to agree the libertarian rather than the progressive policy view is the correct one and the judge has to enforce? >> the declaration of independence. the declaration of independence says what it is that constitutes us as a people which is what i said it's part of our constitution, part of our law. we read the constitution, the first words, we the people of the united states. who are the people of the united states? it's the same one people to dissolve the political bands and connected them to another people in the declaration of independence. i contend you can't understand the constitution without the political philosophy framework that is written into and give rise to the declaration mac. this argument is that is written to an argument put forth by legal philosopher named ronald a number of changes they he makes his or some argue blessing what is a wiki women interpret the constitution or legal document. we read in the light that serves the best political principles and those principles in the constitution's case articulate and the declaration of independence that's what makes us not just judges imposing their own personal view. they are imposing the political philosophy that is part of the constitution in the form of the declaration. in terms of democracy of liberty this plays out as follows to professor roza vegemite open passage, lincoln with this analogy that lincoln uses between wolves and she. he says that the shepherd drives the wolf from the sheep's throat for which the sheep thanks the shepherd as oliver and the wolf calls him a tyrant. lincoln point is not to say that the wolves of the of -- quite the opposite. we are all sheep and since we own our own lives and with the right not to be attacked, not over resources and and freedom and things taken away from us. none of us have the right to be a wolf. none of us has a right to be a predator and take away another person's freedom. they are not morally equivalent. a political philosophy of which the constitution rests sees us all as basically free and no one has a right to be a wolf. our right to restrict other people should exist only so far as there's legitimate reason to protect ourselves against other people harming us. by the right to stop somebody from defrauding the or stealing things from the. i don't have the right to tell him where he can live or who he can marry or what he can say or what kind of business he can start and that sort of thing because i have no right to be a wolf. in the lochner case these principles become crystallized incidentally i love locker. my license plate is a case citation to lochner. spent how did you get it? >> do you believe it hadn't already been taken? spent the word longer would also fit if any of you -- some that spent what happened in the law to case? here's the case with the government of munich says you're not allowed in a bakery shop your not allowed to work more than 10 hours a day. i think it's fair to nobody in this room want to be a bakery in new york city in 1905. awful work. terrible. it's hot miserable work. long hours. and yet here's this german immigrant and he goes to his boss joseph locker in rochester, new york, i believe was and he says that like to work more than 10 hours a day. lock this is i'd like to let you. they shake hands and there you have two grown adults the only their own lives and have the right to decide what to do with their own bodies and it ain't nobody else is busy -- this is if you do. why we want to work more than 10 hours a day? because he's being exploited by evil capitalist, right? as my friend david myers is the big one to work overtime because he needed the dough. [laughter] pickett's charge are violating the bake shop act and he goes in front of the supreme court and they say that's right, they're not hurting anybody else. they have the right to do with ombuds with to please but if they decide to work more than 10 hours a day at then the guy pays them, they have the right to do that and the government cannot restrict the freedom if there's good reason and there's no good reason to. now transone that case 100 years in the future and jeff lawrence v. texas. the state of texas as we as a state of the right to dictate to others what they can go to bed with. the state of texas since armed agents of the state into people's bedrooms to drag them from the arms of their loved ones because the majority is like the way they make love. and thank god the supreme court said that's unconstitutional to they have the right to do with an cells with the police and ain't nobody else's business if you do as long as they're not hurting any other person to that's a principle i seattleites the constitution, the principle of liberty. >> very powerful and accurate. tim has just said don't be too quick to reject the economic judicial activism in locker because that same velocity of interpretation leads to the protection of rights of gave people in lawrence v. texas. is correct about that and justice anthony kennedy who today embraces something closer to the national philosophy you are embracing both voted to protect gave people lgbt citizens in lawrence and also to strike down the health care mandate in the obamacare case invoking simmer notions of autonomy and economic freedom. so kim the fact that you didn't activism can sometimes lead to liberal as well as conservative results, and that it is endorsed by philosophers like a ronald, look at these strange bedfellows are, ladies and gentlemen. tim sandefur just invoked as his model the great liberal political philosopher robert bork and is subject to pick an overarching philosophy editor with the constitution in light of that, and you can't engage in constitutional interpretation without a philosophy. given this incredible liberal pedigree, justice kennedy lawrence v. texas due to believe there's a myth of judicial activism? >> ideal. i know it's astonishing but i do. that was a wonderful statement and it inspired a couple of thoughts on my part. one is this. so this idea that liberty is the right of consenting adults to do whatever they want with their bodies and make whatever bargains they think are in their interests, that's a nice idea. i don't think that's the constitution's that's the constitution's idea undoubtedly one of. when i think about the constitution, i think about the founders. for reasons that is sort of explained before but basically i think that on the constitution failed. i think he came aboard in the civil war and to think the constitution is a different constitution. and, in fact, a better one. what i'm trying to think about we are to people as a people look at the reconstruction constitution, the amendments. and, in fact, if you ask people if you think about the bill of rights cases, if you ask people give me a case that defines understanding of the bill of rights they will say something like miranda. but the minute right remain silent. or maybe new york times v. sullivan, first amendment. in fact, those are not bill of rights cases. dozer 14th a minute cases. that's what i said it is a constitution we have. if you think about liberty and the reconstruction constitution to go to the 14th amendment privileges. it also look at the 13th amendment. what is the core paradigm violation of liberty? the worst sin from the perspective of the reconstruction amendments, slavery. what is slavery is that the government enslaving you? is that the government saying you can't strike whatever bargains you want? in some form sometimes yes, but not entirely. 13th amendment means you cannot insulate yourself through whatever contract. the 13th amendment has in fact, been used to limit liberty of contract. so consenting adults who know what is best for them entry to content for personal services. the person who's supposed to render the services then doesn't want to perform. can you compel them to live up to the terms of the contract that they voluntarily signed knowing what was in the best interest of? you can't because it's too close to slavery. when i think of liberty, i think of more maybe some pass it with human dignity and autonomy in human flourishing and not just his formal idea of liberty of contract. that said, liberty is important, the liberty of consenting adults to do what they want with their bodies but i think that's an important value but i think the constitution protects and i think the legislature cannot restrict that unless it has some good enough reason. but how distrustful i am of the legislature and that in any i'm going to be insane to them what is your reason for this? it depends on the context. i'm going to give the legislature a freer hand in regulating relationships between bake shop owners and a place where i have a fear that yes the employees are being exploited. i think if you look at maximum hour and minimum wage laws annually on the whole, i'm not sure about the fact of locker to look at them on the whole i think that the employees like them to think they would rather have these minimum-wage maximum hour laws. i'm going to the legislature a freer hand. i do not trust the legislature to make sensitive sound decisions about the private sector activities of gays and lesbians because there's history of prejudice, because this is a group from which it's impossible to access. i think it makes sense to treat economic regulation differently from regulation of private sexual behavior of historically persecuted groups. >> i will ask the question and you can answer the one you want to answer. you don't find in that pocket constitution which is should they were handing them out today but they should be available for sale on amazon soon c-span audience so all you can read the through an essay from the declaration to the bill of rights. you're saying there's no distinction between economic and personal rights in the constitution. tim has just defended treating and frenchmen on personal autonomy more skeptically skeptically than a fresh and fun economic liberty. tim says there's nothing in the constitution that contains the cost of tuition and that's a good debate to have. kim, i want to press you on your notion that judges have a black jacket to decide not want rights by the specific provisions of the bill of rights but generally to decide what laws are arbitrary and not in the public interest according to natural law philosophy are your standards are pretty vague. you say it's not an easy word to define what a law passed to the rational explanatory principle. they can't have no relation to a legitimate purpose or goal or lack any reason to support it. and locked it was a reason to they said it was bad for baker's comic justice harlan it was far less of a judicial nihilist said look i'm not sure that's good or bad for health but there plenty of people are smarter than me on the new york legislature concluded to think was bad for health and as a judge it's my job in the face of uncertainty to defer to the political process and not impose my own sense of whether or not it is bad for health on america. you can see the opposite where judges are empowered to do what you want which is to decide which laws are arbitrary, which aren't, would vastly call into question the raiders were state and you honestly and candidly say that the reason the judges in the slaughterhouse cases didn't want to construe the constitution the way you want it because it would call into question an awful lot of regulation and you concede since the new deal of much of what the government now does health and safety revelation, minimum-wage laws, all of those might have to be invalidated by courts. that's what some critics other constitutional vision the vision you represent say that this is a recipe for mass judicial activism and that's why don't take a single member of the supreme court any other conservative justices think that the judicial deference -- deference is the way to go and chief justice roberts and health care case invoked homes, his hero and your enemy commonsense in the face of uncertainty there should be deference. so why are you so confident judges are equipped to strike down the entire regulatory -- >> i'm comfortable with the label of radical and if which i believe is correct interpretation of the constitution were put in place and if that led to the striking down of the regulatory welfare state i see that as a feature and not a buzz. the vast majority of what the government does to us today is unconstitutional deprives us of liberty without sufficient justification and exist largely to satisfy established well-connected political elite at the expense of those of us who lack the political influence necessary to get the legislature to do favors for us. instead we rely on the constitution to defend our interests. the reason we have a constitution is so that we don't have to spend our time lobbying the government to respect us. cosco, the nation's leading abuse of eminent domain, has people whose only job it is to go to city councils and persuade them to condemn people's homes and give the property over to cosco so we can build a shopping mall. now, most of of the people in this audience don't have the resources necessary to persuade the city council not to steal your home and headed over to eminent domain for beautiful but the that's why have the constitution so you don't have to spend your time doing that. you think about spending your daily life pursuing happiness instead. so i see it as a feature and not a buzz what the constitution afford to let to restrain anti-fans of legislators. that's the purpose of the constitution and i'm very proud of that. what i would entrust judge to make these calls is a much more complicated question. because i agree that standards like lawfulness as opposed to arbitrariness are rather broad standards and they call for judgment calls. the call for the use of velocity. i think conservatives particularly are guilty of trying to come up with the constitutional theory that will avoid difficult questions of political philosophy. they think they can come up with some sort of i don't know mathematical equation that will resolve these questions without resort to questions of political philosophy and they don't think that is proper or possible. i embrace political philosophy as having a role in the judicial process. i argue is a political philosophy expressed in the founding documents in the declaration and in the constitution. as for trusting judges, that's one of the process for appointing and confirming judges and impeaching them if necessary. all government, as madison said, law in human hands is liable to be as. that's just a flaw if you want to call it that any system that purports to be, as good as a democratic but, of course, antidemocratic systems have this problem even more in the they have no way of correcting the mistakes of their leaders. mr. levy made a great point when he said the constitution presumes we're all wrong, and then says what would a good government look like since we are all wrong? and that's right. that's exactly how it should be. judges should be much more willing to strike down laws as unconstitutional. tasks of years if struck down a fraction of 1% of the law congress passed is unconstitutional. unconstitutional. does anybody industry think that that congress gets it right that often? right? so yes, it is true that a judge is liable to abuse powers but there's plenty of cases. that's why we should impeach him when the abuse the power. i don't see that as being some sort of proof that my theory is wrong. all systems will in the end as the de tocqueville said, all governments rely on the good sense of the people. it's a good sense of the people isn't there then no constitution of any sort is going to succeed. >> great. so the argument is squarely joined but it is a principled and candid of you to embrace the label radicals to say that your three would only would lead to massive validation of great number of lost cities which i like to call of liberty. >> the enforcement of liberty. kim conyers skeptical of this massive exercise in judicial activism. tim grucci and very distinguished company with judge stephen breyer and justice stephen breyer and judge robert bork. and he says breyer bork and roosevelt to the constitution as concerned primarily with fostering democracy and in the majority -- very honorable company but reminds us that really judge bork, like justice breyer, embrace judicial restraint, and there's a strict division among conservatives between you call yourself a judicial activist who unapologetically choose the courts to strike out much a derogatory state, and judicial restraint conservatives like justice scalia judge bork, and i think even justice thomas has rejected the idea so you don't have a single real ally on the court except perhaps justice kennedy is more sympathetic to the constitution of liberty but does not erase the idea of unenumerated natural rights being enforced. so i ask you kim, along with bork and breyer the leading critics of the thames view you have four reasons for why this would be constitutionally disastrous and is not merited by the history of the constitution. why don't you give us some of those reasons? >> well, i don't think of myself as an advocate of judicial restraint necessarily. because i mean if you look at sort of the mistakes the supreme court has made thomas we know what kind of figure out what should the court do look back back at history with an escort of the bad things they did in the past. the answer is sometimes it is a bad thing by being activist in striking down a law that it shouldn't have struck down. maybe dred scott is an example of that. the supreme court thinks we're we are going to behave aggressively sal the slavery problem, avert the civil war. and end up issuing a terrible decision which history has reviled. but deference can look back too. so plessy v. ferguson, supreme court upholds a louisiana law requiring railroads to segregate their cars by race. the supreme court upholds the governments plan to evacuate americans of japanese dissent from the west coast. so i'm not saying judicial restraint is the best thing for that courts should always be restrained. what i'm saying is that courts interpret the constitution and courts can ask whether what the legislature or the executive branch has done complies with the constitution. but the legislature can ask that question also, is this law constitutional. the executive branch can ask that question. the fundamental question we need to be thinking about is when are the legislature and executive going to do a good job of managing the question and when are they not? when should courts be deferential, when should they be suspicious? i believe there's a certain set of factors out there, and i tried to list some in my book. people can come up with others. i'm not wedded to any particular list. i am wedded to the idea that in some circumstances it makes sense for courts to be deferential and in some circumstances it makes sense for them to be suspicious, which is why kim wins me over -- 10 wednesday ongoing talks about the predatory corporation or the wealthy and powerful dominate the legislatures enacting laws that oppress the politically weak. that makes you want to say show me that's happened and i will say courts should step in because in the circumstances you can't trust the legislature. icy crest on this in the path for racial minorities but i think it makes a lot of sense. can't trust the legislature to it's done it for women to its doing with sexual orientation now. and if we could come up with some nice judicially administered the way of looking at political power as relates to wealth and access, i would do that. i think inequality, wealth inequality leading to any called it and political power is a terrible thing and i would love to courts do more to address that if they could. however, i'm a little bit suspicious that the libertarian agenda actually goes a lot farther than that, and that they are possibly after the whole regulatory state in which a do-nothing is in it's entirety of creation of crony capitalism. >> tim openly said strike down most of the regular state the regulatory stay with the only christian of crony capitalism but also in part of my judicial hero, louis brandeis, whenever i have a hard constitutional question i ask a simple axiom, what would a brandeis do? i mention this now because you lumped brandeis and holmes in this instance. he said both were advocates of radical judicial abstinence. not fear to the great justice brandeis can unlike homes were condemned for what he called the thick fingered class we call the people of almost never voted to strike in any law, even the most ill liberal in american history including as you said the sterilization. brandeis was far different to he was a general deferential in economic matters because he believed in the states as laboratories of democracy like a good small c. conservative ephod small communities were well able to govern themselves. he hated the curse of biggest and large corporations and wanted to defend small businesspeople against jpmorgan but he was quite willing to strike down laws and defend liberty when they infringed provisions of the constitution but he was the greatest defender of free speech and the greatest opponent up on regional searches and seizures and the greatest defender of privacy and 21st century. i can't upload to brandeis because i think you're too quick to lump them in with homes and is an example of a chassis global enforced textually enumerated rights but be deferential when it comes to a loss. we have just a few minutes for questions from our great audience. here's the first one. how do we account for the value of equality and the declaration? how does it impact the idea of liberty? >> in some ways it quality is more important than liberty as far as the declaration is concerned, in this sense. winning but that is the reason we are free, the reason we own ourselves is because the other person has any prior right to own us and to control us and tell us how we may live our lives. jefferson put this point beautiful in its last point beautiful in his last letter we sent the mass of mankind has not been born with saddles on their backs, booted and spurred ready to write him by the grace of god. because people are not born, some people with saddles on the back, other people with spurs on, we are all equal in the sense we have an equal right to run their own lives it's one of the right to government by consent. you don't consent to the government, to government by your parents because you're not equal with your parents. but your equal with your neighbors. your neighbors have no rights, primordial presumptive right to control your life and therefore, that you ask your permission first, government by consent comes out of the principle of equality. according to the proper understanding of equality and liberty. what the progressive managed to do was to substitute democracy for liberty as the central valley of the constitution. the constitution in its first sentence declares that liberty is a blessing to that stored it uses, liberty is a blessing but it doesn't say the same thing about democracy. in fact, it uses the word democracy not once in the entire document to reason with democracy is to protect liberty not the other way around to the reason why i dislike brandeis so much is because what brandeis managed to do, although he purports to be a defender of free speech and what he does is he characterizes free speech from the essential madisonian perspective we talked about earlier today that-natural right to speak my mind and nobody has a right to take it away. transforms into democratic privilege, that the reason why we have free speech is so that democracy can flourish and work. now free speech is a privilege that is given to us by society for societies own purpose. >> i have to defend the honor of my hero. he said the opposite. he said free speech is both a right and a privilege. the men the hearty menu made our constitution were not cowards but they understood that the fringe think as you speak and speak as you think as among the duties of civil society, but if there's any principle that undergirds the constitution is the necessity of public discussion and unless there's a time for discussion and there's an imminent threat, and speech has to be free but there's no circumstance where he suppresses speech in the name of the community. he believed simply like the romans, sorry, the ancient athenians in fifth century athens and atlanta jeffersonian shires that if our models of an engaged community that speech was for the right and duty to but i defend the right not to be engaged in your community spent i don't think he would dispute to be which is defend the right of anyone. why that quote a little debate about the sentiment of brandeis. not a bad place to him. this panel must and on time. ladies and gentlemen, we have one last installment of this chapter constitutional but there. we talk about the first amendment. we talked about transfer in birth. really great debate about libertarian versus democratic vision of the constitution and after 15 and break will come back into a new biography, the great chief justice who solidified division of the court, john marshall. please join me in thanking tim sandefur and kermit roosevelt. [applause] [inaudible conversations] >> you are watching booktv on c-span2 with top nonfiction books and authors every weekend. booktv, television for serious readers. ..

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