Author Richard Epstein and theodore ruger. Ideas put forth in the book about the powers of the federal government outlined in the constitution. This hour and 15 Minute Program was hosted by the National Constitution center and was moderated by its president jeffrey rosen. Welcome to the National Constitution center. President ey rosen, and ceo. It is so great to welcome you back to the keynote Opening Event of our blockbuster fall season. The National Constitution cente only institution in america tarted by congress to disseminate information about the constitution on a nonpartisan basis. And we are about to be transformed by the opening at the end of october of a new gallery displaying one of the 12 surviving original copies of the bill of rights. This is the first time that an original copy of the bill of rights is returning to philadelphia in 200 years. It will be enjoying the new gallery with rare copies of the declaration of independence and the constitution. Making us one of the only institutions in america to display these three documents in one place. This will be the anchor for an incredible forum of debates and panels and podcasts about the bill of rights and i hope you will join us for all of them. I cannot help plugging the ones coming up, including september 17, constitution day. Circuitrom the third court of appeals will come to the sender to speak to kids about what it is like to apply the constitution in their courtrooms. We have a debate with intelligence square about the president s surveillance power to collect data. We have book events on Abraham Lincoln and George Washington and John Marshall. We are giving the Liberty Medal the legacy of james madison. On october 27, the opening of the gallery, presided over by Justice Samuel alito with governor jeb bush. The gallery is being named after president george h. W. Bush. So it is going to be an incredible fall season. I hope you will join us. I could not be more excited than to open this amazing panoply o f discussions on the bill of rights with my friend and colleague and one of the most distinct constitutional theorists i america, in america Richard Epstein. Therds new book, Classical Liberal constitution careerculmination of a rethinking constitutional interpretation and making him one of the most distinctive constitutional voices of our time. In our discussion this evening, we will discuss how richard offers a powerful alternative to the conventional theories of constitutional interpretation, namely conservative original is a and progressive living constitutionalism. He calls it the Classical Liberal constitution and it will be thrilling to examine the power of his ideas. We could not be better served as an interlocutor than my friend and neighbor ted ruger. Ted is a professor of law at penn law school. He has written on the application of judicial authority. He has written about american legal institutions under the Supreme Court and health care law. A topic about which richard writes. Therefore, were going to have a great conversation. We have so much to discuss. Im going to jump in about one of the most striking of your claims, which you make throughout the book, but in particular in the conclusion. Of say the central message the Classical Liberal constitution is to go against the grain of modern Supreme Court jurisprudence. Much of the legal scholarship that has grown around that body of work. You say repeatedly that conservative originalists have moved too far in embracing judicial restraint. You question the deference that conservative justices and theorists show to democratic legislatures and call for a measure of principle judicial activism. Tell us more. One of the things you have to deal with in constitutional law is to sometimes accept the proposition that the obvious proposition is the truth. When you look at various kinds of constitutional provisions, particular those contained in the bill of rights, many of them were drafted in broad terms. Congress shall make no laws abridging the freedom of speech. Be should private property taken without just compensation. The only way you can understand words like freedom and private property is to be able to figure out how they are used as a matter of political theory in a matter of common law. And private copy, for example, is an all embracing notion. So to say that you believe in the fidelity of the text and narrow interpretation essentially puts the two ideas into tension with one another. Youre not loyal to text if you read it narrowly when the text is broad. What you have to do is figure out what it is that you do in order to keep the broad read ing. This creates a real problem in constitutional interpretation because one of the things that is wrong with the original ism,im, the original i associated with Justice Scalia, is that often he thinks that the text itself contains it. Going back to roman times, one of my heirs of academic involvement was i am the last living american roman law professor. Is that the roman interpretation strategies took provisions like this and they said, you know, we realize they are not selfcontained. That if we have prohibition against taking private property, we had better have a prohibition against blowing it up, even though it may not take the pieces. And that leads to the condemnation. It means you can never take private property, even when someone has a gun at your head. You can take private property. How do you measure compensation . So theres this whole elaborate body of nontextual stuff that has to be read in. That stuff especially ghost additionally under the name of the police power. Where every major constitutional prohibition is subject to exceptions to health, safety, morals and general welfare. You have to extirpate all of those terms as well. So the project becomes extremely hard. There is one further difficulty. If unfortunately interpretation is a human activity, many times it is done by people who do not quite get it right. What you then have to do is if you go on the first wrong step, you keep going down that path. Do you try to correct it . In many cases, the thing to do is to ratify earlier errors on the grounds that they help the constitution survive. To give you two frustrations, the general rules on judicial review that is can the Supreme Court overrule statutes of congress . And general review on judicial review over the states. It seems pretty clear that it could do neither of those two things. We cannot run america that way. In addition to being able to go beyond the text in a static sense, you have to be able to incorporate the prescriptive constitution. Those changes that have become so ingrained in the American Fabric that it becomes impossible to get rid of them just the way we look at land law, there is a theory of adverse possession which says wronghings that are and turn them into rights. Of important bunch things. Namely that conservatives are wrong to be pure rationalist. Justice scalia says that richard is wrong. He also says liberals are wrong to be progressives and try to read in all these new welfare rights that are bad for the justified by the constitution. Is he offering a political theory . He believes the Classical Liberalism embodied by john john and montesquieu and stuart mill is the right answer and he wants to read that into the constitution . Do you agree . I would say to your two questions, yes and no. I should say i am happy to be here. I do love the book. It is worth reading. It is provocative. I agree with much of it it. I do disagree with something. I applaud richards totally w ellfounded critique of a kind of precious original intent or original meaning original iism become more prevalent in the law academies as ive been teaching. There has been a renaissance. I think it is wrongheaded very much for the reasons richard stated, trying to fix some of these vague words intentional vague words the constitution used. I applaud richards candor at bringing in this clear vision of Classical Liberalism. I think he lays his cards on the table. It is a powerful vision. Think,vision which i even as somebody who considers himself a progressive, i agree with many parts of this kind of liberty protecting vision. So this leads me to a few inconsistent quibbles or more th an quibbles. I am reminded that there is an old parable about incoherent critiques or incoherent arguments, which is the story about the borrowed kettle. My neighbor comes to me and says, look, you borrowed my tea kettle and see this crack. You did that. Say, no i have got three reasons. When i borrowed the title, it had the crack. When i give back to you, it was in perfect condition. Third, what teakettle . I have never seen that. That is my approach to the book. On the one hand i want to say that the starting point about the constitutional framing in and is over stated onesided in richards telling. We are not meeting in york, pennsylvania. Why . We can be happy we are meeting in philadelphia. The articles where of confederation were drafted. They did not work, which is why the framers came back to philadelphia in 1787. If you read madison and hamilton quite consciously wanted to draft a stronger document with a stronger National Government. And medicine in federalist 51 says, this is the great difficulty lies in this. You must first enable the government to control the governed. And oblige it to control itself. Framersink the other recognized the duality. And hamilton wrote about empowering the National Government with force and vigor. Booknk richards emphasizes the latter concern, which remains valid about make sure the government controls itself and maybe deemphasizes the notion that we needed to come back to philadelphia to have a National Government that actually did have some force. Just more quickly, i dont want to i would rather hear richard. My other inconsistent reactions are that richards framing is right historically. You can make a argument that the original constitution and the First Century or more did dy classic liberal libertarian values but that we change as the country in the 20th century in ways it is ouropriate to adopt in constitutional tradition. Which our ways in culture is different today than they were over 200 years ago is an acceptable form that we can rethink and revise our fundamental understanding of the role of government. Hardesto have the constitution to amend in the world visavis its text. Which means that constitutional change often has to happen outside the text. If we do have a constitutional vision today that is different from the original, i think that is entirely appropriate and is the pathway of change that the framers who wrote we the p have envisioned. Finally, and we can return to this, we all share certain liberty protecting and libertarian impulses. Tent, i agree with everything he says in the book about the importance of our founding document and protecting the. Out differently, is i think that viewing liberally broadly construed to include not merely economic liberty but also religious belief, the reproductive freedom, marital choices, a host of other things, we made the at a High Water Mark of liberty viewed over a 200 year cycle, not a declining asset as the book suggests. So richard, hawaii to respond to te i want you to respond. Took a that the framers more expansive vision of national power. The government had expanded so Classical Liberal constitution would require striking down much of what the government actually does today. What precisely would have to go if your vision were adopted . First of all, let me explain with the vision is and tell me what stays and what goes. I think there is confusion as to what ted said. First of all, the phrase that i use was that whenever you look at the text, you had to figure out the various embellishments of it, the circumvention, the justification, choice of remedies. I did not say the text was vague. The word private property does not mean exclusive possession. It has always meant exclusive possession plus use plus the powers of disposition. Congress, when used in the constitution, has never met ver meantre neaver mean manufacture. It has meant trade of goods. When you start to read these things today, what you do if you can narrow the definition of property which is much too much back andship wealth forth or politics. And you can expand the scope of the federal government which is disastrous because it allows you to create nationwide the second point which relates to the first of these concerns are not concerned that does move into the 20th century. Adam smith wrote a treatise about the dangers of mercantilism. And it turns out that those kinds of dangers apply every bit as much today as they did then. There is nothing about the antitrust laws that treats cartels as a violation, which has changed over 200 years. Reading ofe expanded the congress clause has done is to create a situation now in which agriculture, labor, motor vehicle, the whole system of cartels is there. The great rap against cartelsivism is the manufacturing machine, which is indefensible. Not alterumstances do this. Transportation and communication are better today. There is less need the National Regulation that there was in 1789, because the movement of goods across state boundaries is what disciplined local monopolies. The perception that congress could keep the arteries of transportation and communication open and does not do anything else is more powerful today than it was in 1789. Ted referred to the situation associated with the articles of confederation. Hes right. But understand what the remedies were. The difficulties they were trying to address. The articles of confederation did not have a president. Constitution and it says we have a president , and we do not have two. That is clear. Although sometimes we wish we could have a substitute. It turns out we have no central digital power. It turns out now that we have essential judicial power. It turns out we did not have the power to tax or raise money by debgt. T. Article i says that congress has the power to tax and it shall be used to pay the debt to provide for the common defense and to provide for the general welfare of the United States. This is much broader than no power. But the recent decision, in 1937, said this is broad power. Paying debt means paying public debt. Collectivelynd it or it will fail. And the general welfare of the United States does not mean the welfare of individual citizens. It met the collective welfare of the nation so that the whole point was to say that congress could not take transposfer payments from one individual to the other. You say, whered you get this from . A, it comes from the text. B, every single interpretation of the constitution through 1920 took this point of view, that fa ctional struggles could be limited only by putting limits on the tax. So now, do we have a changed world . We do. But it turns out that none of the new deal reforms which expand federal power or weaken Property Rights in fact get you to a better place. That is what i want to make very clear. Ton i tie this back Classical Liberal theory, the text supports it. I do not think anyone would want to deny that. But im also saying that the theory that animated it is a theory of perpetual validity. It is not one that comes and goes. And the indeterminacy that you have from political conflict, the shortterm taxes, the special taxes, all of those things essentially what they do tothey secure the gangs factions. Special groups who tie their interest to law. Classical liberalism is not a theory that the individuals glorify to the extent that he deviates from the world. You a theory which says want to so structure human institutions so that whenever anybody asked within the rules, ove only way which he can pr himself as to improve social welfare. So there is a direct connection between Classical Liberalism and modern social welfare theory. No connection between modern progressivism which drives you towards monopoly, the antithesis of that. Much of his response focus on the Commerce Clause and the power, incongresss the most controversial parts of his theory have been the claim that if it were by then most of the postnew deal administrator state would be struck down. Richard says only Justice Thomas embraces his limited view of the Commerce Clause and criticizes the other conservatives for not doing so. What would happen, first of all, were adoptedview and tell us about the Affordable Care act case . In which all five conservative dopt a limited clause . I will answer the last question first. I think it is a testament to richards when we righted the history of the Affordable Care act cases and the Commerce Clause jurisprudence we can discern influence andns what a view as a new Commerce Clause rule, reduction of the scope of the Commerce Clause. You also ask is this what richar d wanted . I think the answer is no. They did not go near far enough. They made, as you may know, they said the individual mandate made people pay a penalty, which does make people pay a tax penalty if they do not prove insurance, could not be justified under the Commerce Clause because according to john roberts this would compel somebody to act. Thus it regulated in action as opposed to action. They kept all of the postnew 20th century law o