tv Book Discussion on The Conscience of the Constitution CSPAN January 11, 2015 4:30pm-5:31pm EST
hope you had a wonderful lunch into our great c-span ideas, here is what is going on at the national constitution center today the most exciting bill of rights day in memory. today, december 15th is the 223rd anniversary of the bill of rights ratification and the 225th anniversary of its proposal and this is the day that 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 just rosen which has her hearty audience knows, because it introduced two 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
on all sides of the political spectrum have written the most interesting books about the constitution for the constitution center's first-ever bill of rights book fair and this is the third installment of this wonderful experiment. c-span viewers can tweet their questions to@competition center using hash tag ncc bill of rights and are hearty and intelligent audience can now engage in the third installment of a conversation that flows so naturally that all of us are learning about the historic sources of the bill of rights, the philosophical disputes and exactly what it stood for from the beginning and about its historic element in contemporary meeting. we started the morning talk about the meaning of the first amendment and the central battle over whether seditious rivals, 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 until the 1960s to recognize the principle. in effect a conversation we thought the discussion between madison and jefferson and john adams was part of a broader debate between the accolades of thomas paine, who advocated a national rights view of the constitution and those who are more sympathetic to edmund burke and the evolution and cottonwood and tradition. in the third installment, with discounted block buster debate because we have what does the author of a fascinating and important new book. he is timothy sandefur, has written the cost shift of the constitution, and the right to liberty. in this book he argues what we heard about in the last show really was that the court ever send declaration and his view
should be at the core of the constitution and the judges today should construe the constitution in light of the fact rations presumption of liberty and should strike down laws that are arbitrary -- arbitrary interfere with people's freedom is on its freedom doesn't harm others and he criticizes the court for being too deferential. in particular, he criticizes the tradition of judicial restraint represented on the supreme court by justice oliver in their homes unless brandeis on the left by justice antonin scully at robert bork and in the academy by professor roosevelt at the university of pennsylvania, who timothy sandefur has some vigorous and provocative criticisms forward we will have a great debate about what did the framers intended? was that a presumption of liberty were courts to be active in invalidating laws that infringe on enumerated right in
the text of the constitution nor did they have a presumption of democracy where it was that to legislatures, and not to court to define liberty accord should be restricted to striking down only those laws that violated enumerated constitutional rights. very brief introduction for two great scholars. his principal attorney at the pacific foundation and economic liberty project which protects use of regulations. he is an adjunct scholar at the cato institute and author three books including the most recent one. professor kermit roosevelt is a scholar at the constitution center as well as professor of law at the university of pennsylvania law school specializing in constitutional law was stephen williams and justice david souter and he has written four books, including conflict of laws in the book that is the object of timothy
sandefur's book, which is -- please welcome timothy sandefur. and kermit roosevelt. [applause] you written a passionate and vigorous defense of the constitution of liberty. you begin by saying constitutional history is always covered in the mutual resistance or two principles, the right of each individual to be free in the power of the majority to make rules. tell us about the principle you call the primacy of liberty. it's expressed in the declaration. it was embraced by abolitionists as the constitution should be interpreted in light of day. how should judges interpret it? >> the idea that when we look at political and effusions, a legal system or what have you we start with the premise that people own their own lives and
have the right to direct their own lives without arbitrary interference by somebody else. if you harming other people of course that prices the other people so there is a role for government to intervene. we start with a presumption that people are free with certain inalienable rights that may create government to protect those rights and if the government abuses those rights to alter or abolish their government, that is the presumption of liberty. unless there's good reason to restrict freedom. as opposed to what i take to be the academy today lawyers judges and law professors predominately in america believe that freedom is the presence the government gives you that you are a spurious the government allows you to be in that you are only free if the government as you are. we find this in the form of permits to use your property to earn a living if you choose,
laws that say you are not allowed to run the business until you first get the government's permission. we also find it in the realm of constitutional law particularly what courts called rational basis which is what the court believes in determining whether it was constitutional or not in some areas of the law. under that theory, the law is constitutional and requires the plaintiff to disprove every conceivable basis for the law, end quote. you women out there think that is not possible to prove a negative. the worst possible to prove an infinite number of negatives and that is what courts require you to duke. when you go to court to defend your property right, economic freedom against arbitrary interference. my argument is that the 60s of my book can be summed up by justice thomas is set in that case some years ago something
is gone seriously by what the court's interpretation of the constitution. but what has gone seriously awry is particularly intellectual elites have disregarded this idea of the idea that people should be -- are free and have the right to run the wrong to run their own lives unless there's legitimate reason for restriction. >> ray. strong statement of a provocative thesis. the majority has no preeminent right to rule. we must justify any limits imposed on freedom. our preference and principles such as preventing people from harming one another. i want to start with history. he says the framers would've understood the declaration of independence to be law and embody this harm principle and judges today should enforce it. justice scalia and others had he did that. the declaration is not part of our law and he said the rights the inalienable are not a legal
prescription powers on expressed disdain for what he calls you may do what you like so long as it does not injure someone else. recently scully assize supporters are trying to beat their own philosophical purposes than those of john stuart miller or thomas jefferson and thomas dean into the constitution. what is your reading and who has the better historical argument? >> well let well, but mr. bay saint thank you thank you in thinking tends for such a thoughtful and sustained discussion of my book, although i encourage you to buy the book. [laughter] but i see your question, i think that the declaration is not law. i have a fair amount of sympathy for the idea of natural rights. either theravada sympathy for the idea that rates per seat government, that we create government to protect and secure our rights, but i believe the
government does come in the constitution does give us enforceable rights. if you were going into court and asking a judge to strike down some law on the base is that be a constitutional right. i should be something you find in the constitution not something that preexist government. i had something somewhat more provocative to say also. which is i'm not a huge fan of the declaration having thought of it more because i think the declaration is fundamentally not about liberty, the self-determination. it does have this political philosophy. we create government to secure rights. what happens if the government is abridging rights an impressive way? the declaration ideas not you go to court. the declaration's idea is to alter or abolish the form of government. we've seen the idea in american history not in the locker area and judges striking down rights in the name of liberty contract. we've seen that in the civil war.
in my view the declaration is not what we should be looking to as the foundational values. it is certainly not law. it gives us a political philosophy that finds its full flower in the civil war, which you can consider the revolution and really unfair. we don't believe in this determination. you should be looking to the gettysburg address. >> if i could say one thing. i was criticizing tenet little bit. i'm going to criticize you. >> i have it memorized. [applause] to make it a fair fight, it's like a constitutional >> down. >> all i am going to auc that the declaration. once you include the gettysburg
address. >> this is not a set of business is a plug for a great new constitution which has an introductory essay by me and david rubenstein whose length is the declaration of independence which can express disdain for. the point of the essay is to tell the story about how the rights that were implicit in the constitution -- promised the declaration are implicit in the constitution and codified in the bill of rights. this quite uplifting assay doesn't really answer the question, witches were opposed unenumerated rights of declaration judiciously enforceable? in other words, no one is disagreeing to conscience and so forth are enforceable by courts. tim is claiming they're certain unenumerated rights they are not listed in the constitution that are protected by the ninth amendment which says the enumeration of rights shall not be construed to deny or
disparage others retained by the people should be enforced by judges. this is the biggest constitutional dispute of the 20th century basically. now tim if you will respond to the provocative statement for the declaration is not law that basically in the show just before this one, you agreed and said thomas thing would not have enforce natural rights. he would've expected people to rise up and exercise their right of revolution. so what is your response to the idea that civil war was the right response, not courts? you do have a response because the abolitionists went to courts. >> that is true. the declaration says what a long train of abuses and the same object to refuse under absolute despotism is our right our judy. like i said i memorized it. you can only find out if that is the case after having excised at
the lawful route for securing the rights with which government is entrusted with the keyring. to wit for example a police officer wrongly searches my home is the proper response rebellion against the government? now i have a constitutional guarantee that i can go to court and seek enforcement not in effect the founding fathers right in the declaration of independence took every lawful means at their disposal before taking the final revolutionary step of declaring independence. so although of course i agree the right of revolution is an inherent part of our system of government, it is of course the last thing they could do to exhaust the mechanisms allow provides to 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 that term because the constitution guarantees
liberty. the word liberty is enumerated, written into the constitution. liberty doesn't come in discrete particles. liberty is a broad freedom to do as you please so long as you are no other person. i would object to the idea that for example my right to run barefoot or sprinklers on a hot summer days for unenumerated right. it is part of my liberty and the constitution. no government has right to arbitrarily take away the right. if the government tries to do that, i go to court and say the government has apprised of that due process of law. the government denies new address over and over again in the long train of abuses to reduce under absolute despotism. then we take the revolution. >> kim what a law prohibiting government violate the liberty protected by the constitution? >> well, yes sure.
the constitution does mention liberty. the constitution mentions a bunch of other things, too. i don't think it is fair really to pose the question is liberty or democracy the fundamental constitutional value? the constitution does mention liberty. and mentions equality,, doesn't mention but arguably protects quality. and the thing about many of these constitutional rights are constitutional values which tim brings out so well in its opening to this book where he discusses abraham lincoln's parable is that when you restrict one person's liberty the liberty of the wolf you are enhancing someone else's liberty, the sheep. sheep will say the government has increased my liberty. isn't that great? they say they have restricted my liberty. isn't that terrible. the fundamental question we ask
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 and to reach the right results in promoting and protecting our right? and when do 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 had some recent first-rate and liberty. maybe it's going to enhance the liberty of someone else. who decides whether this is a net increase in the first year of not quite maybe a judge instead of making decisions. maybe sometimes there's reasons you can't trust the legislature but in many cases then i would say most, leaving things to the democratic process is the wiser way to go. >> so tim i want to get into the specifics. one of the rich and provocative pictures you have here is the civil war and the incomplete
reconstruction. if i can try to summarize it and have you react to it you say they were abolitionists by frederick douglass who believe even slavery seemed to be explicitly contemplate a house where. in fact, slavery but in light of the declaration of independence because people residing in the u.s. when it was ratified were citizens. they protect all citizens in the rights to life, liberty and property and therefore slavery is unconstitutional. there's also more sophisticated arguments involving the comity clause of article for come or the author of the 14th amendment by contained in the lips is that basically said the citizens of each state by the privilege of unity than citizens have demanded states in several states and basically there was a basic right for citizens being denied slaves. you saw the story about the civil war five. wicked has the gettysburg
address. congress wants to protect the rights and the 13th amendment which turns 150 next year and will have a 13th amendment and have a year-long celebration and the 14th amendment which says the privileges or immunities of united states citizenship shall not be infringed. and you talk about how this clause, which the framers led by john bingham thought was eviscerated by the supreme court in the slaughterhouse case and amazingly suggests the lawyer from louisiana was actually the same pennsylvania supreme court justice to britain judicial decisions denied liberty before the civil war. so you make a small strong case that the abolitionist thought there were natural rights being violated by slavery but they thought it took a constitutional amendment to explicitly protect those rights.
so what is your basis for concluding that john bingham and the other framers thought the 14th amendment included not only the rights enumerated in the bill of rights and the common law right listed in the case called coryell which you don't like the right to travel and not to have enforce contracts soon to be sued. why do you think that also enable judges to decide what they thought was arbitrary and which deprivations of liberty were unjustified? >> this is i think one of the most fascinating stories in the history of constitutional law and its often skimmed over because we tend to go from framers to the civil war to the present day and the 1830s was the time of intellectual ferment like we've rarely have seen in this country, where basically the proslavery constitutional theory and the
anti-slavery constitutional theory played chiefly by john quincy adams after he left the presidency and was in congress. he was the godfather of the libertarian interpretation of the constitution. the anti-slavery theory that is in the ratification of the 14th amendment. it's a fascinating or why it was douglass and his followers by slavery was already unconstitutional before the 13th amendment. it is an interesting argument. i try not to take the position that they were exactly right or wrong because i don't think there was the right answer at that point. that is why an amendment was necessary. by the time the 14th amendment came around what had happened was the southerners right of congress. the war was over. the south was laid waste by the war and the radical republicans saw this as their opportunity to put their constitutional theory
permanently into the constitution. not so much to say they would change in the constitution, but to restore what they thought had always been the constitution and that is the principle of the privacy of individual liberty among other things. so the 14th amendment begins. all those recognized in subject to the jurisdiction thereof for citizens of the united states. that is incredibly important because until that time the constitution had never defined citizenship believe it or not. the whole idea of states being sovereign, which you still hear people to say today, it is obliterated because it can define its own citizenship. states have no authority to declare with arab citizens are under this amendment. the state of california has no role in deciding whether or not it's california. the second clause says no state shall import the new law but the privilege of the immunities of citizens of the united states. what are these privileges or immunities? when you look back at the legal
history, it is defined 50 years before hand and another prior legal precedents and scholars would explain these included the natural rights, common law rights that we are now protected against the state. why do courts have a role in enforcing them? they shall not make or enforce law which shall abridge these rights. if the state comes to me and says i'm going to take away her federally protected civil rights and your freedom of speech. i will pass a statute that says it may no longer express opinions. i go out there and express my opinions and get arrested by the sheriff, get dragged to jail. what am i going to do? i will say your honor, this law has surprised me of liberty without due process of law because whatever the state passed to take away the freedom is invalid and without due
process of law. of course i am going to go to court. what is the judge going to say? he is going to save my imprisonment is illegal i hope. we talk about this idea of where to judges get their authorities? 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 1780s because before the bill of rights all rights were unenumerated. the rights by the english common law for at least 200 years before that event while unenumerated rights. english courts have held long before the revolution did so even though there's no written constitution. there's no bill of rights. these were unenumerated rights. that is why they wrote the night amendment to protect rights not specifically listed in the 14th amendment in the 1860s to protect the immunities of citizens of the united states. so that's the short answer. >> it was a long question and an
excellent answer. we are in late 19th century. the supreme court is basically eviscerated it in the slaughterhouse cases by saying its intent which is to apply the bill of rights against the state can't be achieved as a result took almost another 100 years for that to happen. nevertheless, the supreme court went on to do exactly what tim is suggesting, striking down economic legislation in the name of the liberty protected by the 14th amendment. some of the famous or infamous opinion on your point of view, loughner case at the beginning of the 20th century the court invalidated new york's maximum hour laws for baker and start down a whole bunch of other laws. vivisection and action to this among progressives that franklin roosevelt won the election on his opposition to judicial activism in the court retreated switched its position and said
they generally uphold economic regulations unless they are wholly irrational emblem for his free speech and so forth more aggressively. pallettes please why the progressives thought the economic cases such as loughner were not faithful to the constitution. what is the danger why the 19th century cases should not be followed. >> well, that is a big question. i will try to give you a relatively short answer. but i said before that the constitution protects a lot of different games and frequently when they act it is promoting one person's constitutional rights are are constitutional interest that the rights of another. so you can imagine a worker working in a jury for maybe 14 16 hours a day sorting and
cutting fabric. maybe been exposed to harmful dust in the air because 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 quiet when the building catches fire in the doors are locked, she has to freedom whether to die in the smoke and flames. if the government comes along and says you can't do that. you can't strike a bargain you can't work 16 hours a week. you can't have these working conditions. you can't pay these people so little money that they have to work 16 hours to make ends meet. it is reduced liberty certainly. any formal sense you can say it's can say is reduced to contractor both sides, which is what the supreme court says in the loughner decision.
this is the new york legislature by setting maximum hour laws for baker had infringed on both the employer and employee. if you think about it a substantive sense in terms of what kind of freedoms these people have to lead meaningful, unfulfilling lies to pursue their vision of themselves as flourishing human being and not just autonomists on an assembly line. ..
and tim i know can give a lot of examples of situations where legislatures have done terrible things and can have too much regulation. but i would think that most of the time, the answer is yes you can trust the democratic process and a better result if we simply try to form a liberty contract. >> ten says we can trust the democratic process more than the courts to choose the policy premises. and in this sense he is
challenging all along and you have an accurate account of how the justice who goes off to the civil war as an abolitionist viewed in his mother's idealism has 17,000 people dead or wounded and he himself was wounded and almost dies. he loses faith in abolitionism and ideas and becomes such a nihilist that he believes they need to impose their will on the week to the democratic process because if they can't get it through law they will do it through violence. but as you say accurately these are good applause and i these people who are not progressive at all but in the view as tim did the constitution is made for people of the fundamentally different points of view. the constitution doesn't act
this social status depending on your perspective of libertarian social darwin who he embraces that says we shouldn't impose that view on the time the new york legislature is embracing the progressive view and eq disagree strongly the point of the book is a constitution can survive only among people who agree on the basic precepts guarding the political. >> that is the most true statement ever. where in the founding day you get your confidence that people have to agree that the libertarian rather than the progressive policy view is the perfect one and the judges have to enforce it? >> the declaration says what it is that constitutes us as a people which is why it is part of our constitution and part of the law, we read the constitution the first words in the constitution we the people
of the united states. who is the people of the united states? it is the same people that connected them with another people in the declaration of independence and i contend you can't understand the constitution without the political philosophy framework that is written into the declaration of independence. this argument incidentally there is an argument put forth and i'm ashamed to say i wrote the book before i read him but he makes this a very similar argument by saying what is it that we do when we interpret the constitution and we are needed in the light that serves the best "principles and those principles of the constitution are articulated in the declaration. that's what makes it so that it isn't just imposing their own personal view of the political philosophy. this plays out as follows and it is mentioned in my opening passage lincoln with its
wonderful analogy that we can use this between wolves and sheep he says that the shepherd drive him from the throat which he calls him a tyrant. it is the equivalent quite the opposite that they own their own lives and have the right not to be attacked, not to have them in the freedom taken away from us. the political philosophy on which the constitution red seas us all and it's basically free and nobody has a right to be able. our right to restrict other people's freedom exists only so far as there is legitimate reasons to protect ourselves against other people harming us. so, i have the right to stop somebody from defrauding or stealing things from me. i don't have the right to tell them where they can live or who
they can marry or what he can say or what kind of business he can start into that kind of thing because i have no right to be able. in the case this principle becomes crystallized. my life is in the case for lochner. [laughter] >> did he believe it had already been taken? [laughter] the word the works also fit if any of you are interested. [laughter] >> what happens in the case. it is miserable work, long hours and get yours this german immigrant who goes to his boss at the bakery shop and he says i would like to work more than ten hours a day and it isn't
anybody's business if they do. why would they want to work ten hours a day? they exploited the evil capitalist. they get charged in the act and the supreme court says you know what they are not hurting anybody else. they have no right to the community believe if they decide to work more than ten hours a day in the bakery and the government can only restrict the freedom if there is good reason and there is no good reason here. transformed at 100 years into the future. the state of texas says we have the right to dictate who they can go with.
and the state of texas sends armed agents and drag them from the arms of their loved ones because the majority doesn't like the way that they make love and thank god the supreme court said that is unconstitutional. they have the right to do do but they please do but they please and it isn't anybody's business as long as they are not hurting any other person. that's the principle that underlies the constitution. >> okay. this is very powerful and accurate. tim has just said don't be quick to reject the economic activism because that same philosophy of interpretation is the protection of the rights of people in lawrence and texas and he's absolutely correct about that and justice anthony kennedy today and braces something closer to the natural law philosophy that you are you're increasing and both voted to protect the equal citizens in lawrence.
in the autonomy and the economic freedom. the judicial activism can sometimes lead to liberal as well as conservative results and that it is endorsed by philosophers. look at these strange bedfellows libertarian. the great liberal political philosopher who said you have to pick the overarching philosophy and interpret the constitution in light of that and you can't engage in the constitutional interpretation without a philosophy. given this incredible pedigree justice lawrence and texas do you still believe there is a myth of judicial activism? >> i do. i know it's astonishing, but i do. that was a wonderful statement and it inspired a couple of
thoughts. this idea that liberty is the right of consenting adults to do whatever they want and make whatever bargains they can turn their interest that is a nice idea. i don't think that's the constitution's idea of liberty and i will tell you why. so, when i think of the constitution, i don't think about the funding for reasons that i sort of thought before. basically i think that they failed. i think it can't part in the civil war. when i try to think that the deepest constitutional values and we are to people, i look at the reconstruction constitution of the amendments. and in fact, you know, if you ask people if you think about the big bill of rights cases come if you ask people give me a case that defines the bill of rights people will say something
like miranda to remain silent and right to counsel or maybe "new york times" solomon first amendment. it is the constitution we have. you can look to the 14th amendment privileges and you could also look to the 13th amendment. what is the worst thing from the reconstruction amendments, slavery. you cannot enslave yourself through whatever contrast. the amendment has been used to limit liberty of contract. succumb consulting adults who know what is best for them and turned to a contract for
personal services. the person that is supposed to render the the services and 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 their best interest no you can't because it is too close to slavery. it's not just this idea of the liberal contracts. now that said liberty is important. the liberty of the consenting adults to do what they want i think that is an important value. i think the constitution protects it. i think the legislature cannot read strict that unless it has good enough reason. but how distrustful i am of the legislature and how demanding and going to be and what is your reason for this is going to give a hand in regulating the relationships between the bake shop owners and employees.
i'm not sure about the facts but if you look at them on the whole i think that the employees like them, they would rather have these maximum hour laws so i'm going to get a free handout. give a free handout. i do not trust the legislature to make sensitive sounds and decisions about the private activities of gays and lesbians because there's a history of prejudice and this is a group for which it is impossible to access. for lots and lots of reasons i think it makes sense to treat economic regulations differently from regulations of the private behavior. >> i will ask the question and then you can answer the one you want to answer.
there is no distinction between economics and political rights. tim has just defended treating the autonomy more skeptically than the economic liberty. they have a blank check to decide not what rights violated the provisions of the rights that are generally decide what is arbitrary and not in the public interest according to natural law philosophy. the standards are pretty vague. you say that it isn't an easy word to define what they have to have an explanatory principle.
it can have a relation to the purpose or any reason to support it. there was a reason. they said it was bad. and the justice who was far left of the judicial said i'm not sure whether it is good or bad but there are plenty of people that are smarter than me in the new york legislature concluded to did think it was bad and as a judge, it is my job in the face of uncertainty of the contest of a dtd for the political process and not impose my own sense of whether or not it is bad for the help of america and you can see the opposite where the judges are empowered to do what you want, which is to decide which laws are arbitrary and which are not vastly call into question the regulatory state. the reason the judges in the slaughterhouse cases didn't want to construe the way you want is is that it would call into question an awful lot of regulations and you can also see
to say that this is a recipe for a mass judicial activism and that's why i don't think that any of the conservative justices, not scalia, thomas, roberts or alito. and they say that in the face of uncertainty there should be difference. so, why are you so confident that the judges are equipped to strike down the entire regulatory scheme? >> if m-mike, which i believe is the correct interpretation of the constitution is in place and helped lead to the striking down of the welfare state, the vast majority of what the government does today is unconstitutional
and the liberty without the justification. and it exists largely at the expense of us but lack the political necessity to do favor. instead we have to rely to defend the interest. it's so that we don't have to spend our time lobbying the government to respect us. you know, costco, the nation's leading leading abuse of eminent domain as people whose only job it is to go to the city councils and persuade them to condemn eagles hope help and give the property over to costco. now you don't have the resources necessary to persuade the city council not to hand it over to the eminent domain. that's why we have a constitution so that we don't have to spend your time doing that. you can go about spending your dalia life pursuing happiness instead. succumb i see it as the future
of the ability to race training and tying the hands of legislators has the purpose of the constitution and i am very proud of that. why i would entrust judges to make these calls is a completed question because i agree that standards as opposed to the arbitrariness or rather broad standards and a call for the judgment calls and call for the use of the political philosophy. i think that conservatives particularly are guilty of trying to come up with a constitutional theory that will avoid the difficult questions of the political philosophy. they think they can come up with some sort of mathematical vacation that will resolve the questions to the political philosophy and i don't think that is proper or possible. i increased the political philosophy as having a role in the judicial process. i just argue the political philosophy is in the declaration and in the constitution.
as for trusting judges that's why we have the process for appointing and confirming judges and in teaching them if necessary. all of the government, as madison said, watching the human hands is a flaw if you want to call it that in any system. they have no way of correcting and the constitution presumes that we are all wrong and offensive as what would then says what would a good government look like assuming that we are all wrong and that is exactly how it should be. judges should be much more willing to fight down the law in the past several years they struck down a fraction of the 1% of the law that congress passed. does anybody in this room think the congress gets it right but often? so yes it is true the judge is liable and there are plenty of
cases it is just why we should impeach him in the would be abuse their power. but i don't see that as being some sort of proof that my theory is wrong. in the end all governments rely on the good sense of the people and it's a good sense of the people then no constitution of any sort is going to be. so the argument is joined in the principles that would lead to the invalidation of the number of laws and the enforcement of liberty. >> you were skeptical of this massive exercise in the judicial activism. you are the judge did justice stephen breyer and he says that
they see the constitution is primarily the constitution of the democracy enabling the legislation is a very honorable company there but it reminds us that really the judge, like justice breyer and braced that judicial restraint and there is a position among the conservatives became ducal yourself a judicial activist who unapologetically used the court to strike down much of the regulatory state and the judicial restraint and i think even justice thomas rejected the idea so you don't have a single ally except marsenburg addicted to constitution of liberty but that doesn't embrace the idea of the anonymity of natural rights being enforced so i ask you along with the leading critics you have for reasons why this
would be constitutionally disastrous and it isn't merited by the constitution once you give us some of those reasons. >> i don't think of myself as an advocate of judicial restraint necessarily because if you look at sort of the mistakes the supreme court has made so we are trying to figure out what should the court to do and ask what are the bad things in the past. the answer is sometimes it doesn't have thing by being activist in striking down the law but it shouldn't have struck down. maybe dred scott is an example of that so we are going to behave aggressively and to solve this problem and overt the civil war and they end up issuing a terrible decision that history has just reviled. but deference can look bad, too
mac so plessy against ferguson upholds a louisiana law requiring the rail routes to segregate. the supreme court upholds the plan to evacuate the dissent from the west coast. so i'm not saying that judicial restraint is the best thing or that courts should always be rescreened. what i am saying is courts interpret the constitution and courts can ask whether the legislature or the executive branch employees in the constitution. the legislature can ask that question too mac. the executive branch can ask that question and the fundamental question that we need to be thinking about is when are the legislature and executive thing to do a good job of answering the question and when are they not? when should courts be deferential and when should they be suspicious and i think 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 invited it to the idea that in some circumstances that make sense for the courts to be deferential and in some circumstances which is why he wins me over when he talks about the predatory corporation or the wealthy and powerful dominating in the legislature and enacting laws that are pressed to the politically weak. that makes me want to say show me that that's happening at the courts should step in because in those circumstances you cannot trust the legislature. the court has done this in the past for the racial minorities and i think that makes a lot of sense. they've done it for women and with respect to sexual orientation. if we can come up with some nice ways of looking as political power as it relates to wealth and access, i would do that too
mac. i think that wealth inequality leading to an equality of the political power is a terrible thing. and i would love to have the courts do more to address that if they could. however, i'm a little bit suspicious that the libertarian agenda actually goes further than that and that possibly after the regulatory state, which i do not think is in its entirety to crummy capitalism -- crony capitalism. they strike down much of the regulatory state and the regulatory state wasn't only a creation of crony capitalism but also in part of my judicial hero. and when i had a constitutional question i asked a simple was what brandeis do. and i mention this now because you put them all in the same sentence sentence to set up a for advocates of the judicial abstinence and not fair to the great justice brandeis unlike holmes who had contempt for the
clowns we call the people they almost never voted to strike down any law even the most. he was far different, differential in the and the economic matters because he believed in the states laboratories of democracy and thought hope that small communities were able to govern themselves. he hated the large corporations and wanted to defend the small business people against jpmorgan but was quite willing to strike down the law and defend the liberty when they infringed the positions of the constitution so he was the greatest defender of the free speech into the opponent of the liberal searching future and the greatest defender of privacy in the 21st century so i could plug just because i think you were a little quick to lump him in with holmes and he's an example of a justice that would enforce the enumerated rights and would be deferential when it comes to other laws.
we have a few minutes for questions. here's the first one for you. how do we account for the value of equality and how does that impact the idea of liberty? >> it's more important than liberty as far as the declaration is concerned in this sense we mean is the reason that we are free is because no other person has any prior right to own and control and tell us how we live our lives. jefferson but despite very beautifully in a letter when he said that mankind hasn't been a favored few legitimately by the grace of god. because people are not born with saddles on their back into the people with spurs we are all equal in the sense that we have the right to run our own lives which is why we have the right to government by consent. you don't consent to the government by your parents because they were not equal with
her parents but you are equal with your neighbors. they have no right, no presumptive right to control your life and they are they have to ask your permission first to the government by consent comes out of the principle of equality. the quality. according to the proper understanding of the quality. with the progressives managed to do is to substitute democracy for liberty as a central value of the constitution. the constitution declares that liberty is a blessing. it doesn't say the same thing about democracy infected uses the word democracy not once in the constitution. the reason we have democracy is to protect liberty, not the other way around and the reason i dislike brandeis so much is because what he managed to do if he characterizes free speech from the essential perspective
we talked about earlier today that i have a natural right speaker mind and transforms it into a democratic privilege and the reason why we have free speech is so that democracy can forage and work. so now free speech is a privilege that is different to us by the society. >> i have to defend the honor of my hero. he said the opposite of -- he said free speech is a right and a privilege. the men that made our constitution were not cowards. they understood the freedom to speak is among the duties of civil society but if there's any principle that undergirds the constitution if the necessity of public discussion and unless there is no time and there is an imminent threat in the speech has to be free. there is no circumstance in the name of the community he needs simply like the fifth century athens and like the jeffersonians that he thought
were models of the engaged community that the speech was for the right and the duty. >> he would just defend the right of anyone to speak. >> a little debate about this isn't a bad place to end. this panel must end on time, ladies and gentlemen we have one last installment of this constitutional book fare. we've talked about the first amendment and we've talked about burke and we just had a discussion about the libertarian versus the democratic version of the constitution and after a 15 minute break we will come back and hear a new biography of the great chief justice who is solidified in the vision of the court as a branch of government john marshall. these join me in thanking. [applause]
>> pamela is the author of by the book writers on literary life in "the new york times" book review. her conversation is next on book tv. [applause] good morning, everyone and everyone who is watching via technology. this morning's panel is going to be fascinating and i know that you all are going to have a great time. i'm not used to having this mini people show up to see me without a court order. so i'm certain that this is great because he was. our panel discussion this morning is via the book. the moderator is pamela paul.