tv Book Discussion on Our Republican Constitution CSPAN May 8, 2016 9:00am-10:31am EDT
the bad news is that are 15 years old and there are computers that are 15 years old and they use zip drives and they are all on the verge of breaking. and 43 states can the voting machines, electronic computerized voting machines are 10 years or older. so there will be a need for massive new investment in voting technology around the country or you have these lines. even that creates opportunities to integrate that with electronic registration and other sorts of things can make is a good those eligible to vote and vote. it's going to be one more way in which the fight to vote will continue, in which not only the formal rules but everything around it that's going to be contested but ultimately, hopefully, can lead to continued progress. thank you. >> thank you all for coming. you can get the books in the back or at brennancenter.org.
[inaudible conversations] >> good afternoon. welcome to the cato institute. i'm the director of cato's center for constitutional studies and your host or two days for a odd professor randy barnett's new book. our republican constitution, securing the liberty and sovereignty of we the people with a foreword by george will. let me also welcome our c-span audience as well as those watching through cato's live streaming. released just two days ago by harpercollins broadside, this book is sure to receive wide attention and deservedly so.
in fact, i just learned it's available at costco, so people who are watching this and these men cannot do this for them run right out and pick up a copy of the book. it is likely to receive wide attention as i said because it speaks in a fundamental way to the political divisions we see in america today, divisions about health care, gun control, affirmative action, immigration and so much more. but about the fire, more fundamental division, we see in our understanding of our basic love the constitution and what it authorizes. if we want to better understand and appreciate the service divisions, that is where we have to turn because that is where they are grounded. just to be clear, in speaking about "our republican constitution" in a democratic constitution, professor barnett
is not making partisan points, rather as the book's subtitle suggests, he is alluding to two fundamentally different understanding of the constitution's first three words, we the people, profoundly different conceptions that have deep roots in our constitutional history and far-reaching implications for our political orator. once we understand this basic differences, will have a far better grasp of the more immediate issues that so divide us as a nation today. for that, let me introduce professor barnett who will speak about the book for about 30 minutes. we will then turn to professor robert percival will offer commentary at 15 minutes or so. i'll introduce professor just before he speaks. professor barnett will then respond. we will have a brief exchange between the two women will turn to questions from you in the audience after which we will have lunch upstairs at her
georgian yager conference center. the book is available, by the way, at substantial discount outside our fa hayek auditorium and professor barnett will be glad to sign it forward. randy barnett is the [applause] waterhouse professor of legal theory at the georgetown university law center, where he directs the georgetown center for the con edition and teaches constitutional law and contracts. he's also a senior fellow here at the cato institute. after graduating from northwestern university and harvard law school, professor barnett tried many felony cases as a prosecutor in the cook county states attorney's office in chicago. in 2004, he argued the medical marijuana case of gonzales v. rage drained the u.s. supreme court and in 2011-12, he represented the national federation of independent
business and its constitutional challenge to the affordable care act. professor barnett has been a visiting professor at the harvard law school, university of pennsylvania, northwestern and the university francisco american in guatemala. he delivered the colby 2000 lectures on jurisprudence at the university of tokyo -- you show university in kyoto. in 2008 he was ordered to constitutional studies. his publications of more than 100 articles and reviews as well as nine including restoring the lost constitution, the presumption of liberty published by princeton in 2005 and legal case books on the constitution and on contract law. his book, and structure of liberty, justice and the rule of law published by oxford in 1998 was published also in japanese. his opinion pieces appear
regularly in "the wall street journal" and elsewhere. he appears frequently in public affairs media. in 2007 he was featured in the documentary trials of law school and in search of the second amendment. he portrays an assistant prosecutor in the 2010 independent film inalienable. he is here discuss his new book, "our republican constitution: securing the liberty and sovereignty of we the people" of we the people. please welcome professor randy barnett. >> thank you, roger. thanks to the cato institute for hosting this wonderful event. i look forward to the commentary were about to receive into discussion that we have afterward. in 1789, james madison had a
problem. after living for 10 years under the articles of confederation, madison worked tirelessly behind the scenes to bring about a constitution to divide the convention to devise a new constitution. in september 1786 he participated in a preliminary convention in annapolis. by 1787, he secured enough support of key players like george washington and ben franklin to convene the constitutional convention in philadelphia. now the pressure was on a 36-year-old madison. before returning to philadelphia, he crammed for the gathering like a student for his exams from a chest full of books that had been supplied to him by his friend and mentor, thomas jefferson. for those madison had a truly fundamental problem to solve. like many others, he had included the american regime governed by the articles of confederation was grossly
inadequate and contrary to what the virginia declaration of rights referred to as the common nsa protection and security of the people. but why was this happening? why have republicanism of the founding generation failed themselves? for the previous 13 years, the people of the united states have been governed by 13 separate entities. state governments under the article federation for the republican. the founder had thrown off world by the aristocratic view in favor of rule by the democratic many. under aristocracy, after many are screwed by the few, the democratic or republican alternative is premised on the relief that people wouldn't screw themselves. the cisco academy. -- cook county. this republican theory that people wouldn't screw themselves had unexpectedly proven to be
false. state creatures had begun a knack in relief laws that both undermined the rights of creditors and impaired economic prosperity, which required a credit architect can safely rely on the obligation of private contracts to collect letters to a false note in the didymus or administrative barriers to protect their own businesses from competing firms in neighboring states. the result is a national economic downturn, a really great depression. so republican government as it has been conceived was clearly not working for the benefit protection of the people, but why not. in april of 1787, largely for his own benefit, not benefit, madison compose an essay that is called the vices of his political system and united states, but not an essay for publication. it was an essay for his own benefit, like a working paper to
figure out what the gameplay needed to be for the upcoming constitutional convention in philadelphia. so we have this remarkable document that shows how he was sorting through this problem. what was the problem? and vices mattison identified the source of the problem and what he called the injustice of the laws of the state. first of all, the problem of the laws of the states were passing unjust. the causes of this evil he contended could be traced to the representative bodies in the state and ultimately to the people themselves. this hero called into question the fundamental principle of republican government that the majority ruling dutch governments are the safest guardians both of the public good and a private rates. madison concluded that we must be far more realistic about popular majorities. all civilized societies are divided into different interests
and action, rich or poor, merchants and manufacturers, members of different religious acts, always a different political leaders, inhabitants of different districts, owners of different property, et cetera. in a day, the debtors outnumber creditors and the poor outnumber the rich. the larger group can simply outvote the smaller one. the majority however composed he continued ultimately gives the law whenever therefore an apparent interest or common passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority or of individuals. to illustrate this problem, madison post the following experiment. quote, place three individuals in a situation where the interest of each depends on the voice of the others and give to have been an interest opposed to
the rights of the third table the latter be secure? the prudence of every man would shun the danger likewise will 2000 a like situation be less likely to approach upon the right of the 1000. in short, under the democratic version of republicanism of the day, there is nothing stopping a majority of the polity from engaging in self dealing at the expense of the minority. madison concluded what was needed was not a month bidding of republican form of government would address the weakness of democratic state government while preserving popular sovereignty. as madison put it, quote, to secure the public good and private rights against the danger of such a faction and at the same time preserve the spirit and form of popular government is then the great object to which our inquiries are directed. madison was not alone in
locating the no-space in the nation and the majoritarian is that the days. at the philadelphia convention, edmund randolph, first attorney general of the united states observed that the general object of the convention was to provide a cure for the evils under which the u.s. labored and in tracing these evils to their origin, every man had founded in the turbulence of hours of democracy. eldridge gerry from massachusetts stated the evils we experience flow from the access of the peer roger sherman of connecticut contended that people immediately shed of the little to do with maybe about the government. governor marston and they noted everyman of observation had been in the democratic ranches is it legislatures this invitation in congress, change bonus in every department, access against
personal liberty, private property and personal safety. even those who had remained more amenable to democracy like church mason of virginia admitted we had been to democratic, unquote, informing state government. at the conclusion of the philadelphia convention, anxious citizens gathered outside independence hall to learn just what had been produced behind closed doors. the convention had been governed entirely in the raid. it is that of benjamin franklin left the building, a woman in the crowd called out to him. well, dr., what if we got? a republic or a monarchy? a republic if you can keep it. but while the new form of government devised in philadelphia was not a monarchy, neither was the democratic. if franklin still called it a
republic. that is because the meaning of that term, republic, a republican had just been changed by amendment that the building from which franklin was leaving. a republican constitution must no longer a democratic path that you should if it ever truly had written. in my book, "our republican constitution," i explain how these two fundamentally divergent views of the constitution divide us even today. i called these divergent views the democratic cause dictation and republican has dictation, but i don't intend these labels to be partisan. there are political conservatives whose you to some aspect of the democratic cause petition at some progressives who adopt aspects of the republican one. many people, perhaps most people flip conception depending which habits conform to the results they like on a particular issue. i contend that what divides
those who adhere to a democratic constitution from those who favor a republican constitution are two fundamentally inconsistent visions of we the people, first three words of the constitution that lead to two radically different conceptions of popular sovereignty. those who adhere to democratic constitution hold a different conception of we the people in popular sovereignty than those who adhere to a republican one. a democratic constitution views we the people as a group. we the people as a group. the purpose of the purpose of a constitution is to empower the majority of the people to rule. the idea of we the people as a group is the people must rule -- we the people must rule as must rule is to group and the only way people can role as a group is how often are they going to do it in there for the purpose of the constitution is to set up a democratic mechanism to express the will of the people. it makes perfect sense.
and this game, unelected judges are problematic because they are thought to thwart the will of the people as reflected in their legislators. under a democratic constitution, therefore the will of the majority should generally prevail. in contrast, a republican constitution views we the people as individuals as the declaration of independence affirms, we the people are endowed with certain inalienable rights among which are the individual right to life, liberty and pursuit of happiness. then the next sentence of the declaration and i spent chapter one entirely on the declaration of independence. the next sentence of the declaration says that to secure these rights, governments are instituted among men, deriving just powers from the consent of the governor. not all powers, not unlimited powers, but their just powers are what they derive from the consent of the governor. the purpose of government is to secure the individual right that
the previous sentence i just referred to the bright to life, liberty and pursuit of happiness. under the republican constitution, first-come rights and then comes governments to secure the preexisting right of we the people as individuals. and then, to ensure that government is held to just powers, the constitution is put in writing such as this to provide the law that governs those who govern us. we are all governed by laws that are made by governmental agencies, but this is the law that governs those who govern us. as i explained in several chat is said by republican -- "our republican constitution", the constitution secures these rates primarily in two ways. first, by means of federalism in which the federal government is limited to a enumerated powers while allowing 50 states to adopt a diversity of social and
economic regulations. in that game, by a separation of powers in which the national powers to make it execute an enforced law are placed in separate hands. but in addition, judges to our servants of the people and they have a duty to keep legislators within what the declaration calls their just powers by invalidating irrational and arbitrary laws. after all, we the people cannot be presumed to delegate to our servants in the legislature the power to arbitrarily or irrationally restrict the exercise of her preexisting right to life, liberty and pursuit of happiness. the death of justice antonin scalia combined with senate republicans refusal to consent to any nominee until after november has raised the stakes on an issue that should always be at the forefront of any presidential campaign, but usually isn't.
that is the future of the supreme court and our constitution. as a result of his staff, selecting the next justice is already a prime topic of the ongoing presidential contest, but now is the time to be clear about the nature of the choice we face. most today assume that the current divide on the court is political in the sense that the left side favors progressive outcome of the right side favors conservative ones. but that is not truly the case. for example, when i argue the case of gonzales versus rage in 2004, one might have supposed the left side of the court would have favored my client is not to use medical marijuana as authorized by californialaw while the right side would've voted against liberal drug policy. yet, chief justice rehnquist
sided with that of the most progressive state in opposition and then we lost when justice scalia and kennedy joined the ranks of the progressives. but was at stake for both sides was not a policy dispute over marijuana, but a difference over constitutional principle. in particular, a principled disagreement over the third of constitution we have and the proper role of judges in the worst in it. do we have a democratic constitution in which the rule of the majority takes priority and must expressly prohibited? if so, judges should refer to the will of we the people as expressed by representatives. or do we have a republican constitution which the rights of we the people take priority over decisions of their servants in the legislature and if so, judges have a duty to ensure the servants of we the people remain within the constitutional limit
on their powers. the liberal justices put their principled commitment to majoritarian rule at the national level of compassion for the sick, suffering and dying. kind of have to admire them for that. conversely, the three conservative centers to constitutionally limited federal power about their points of drugs. we cannot be sure by justice kennedy joined the liberals, the justice scalia made his reasons clear in a separate concurring opinion in rage. under the necessary proper clause, the courts must defer to congress' judgment that it was essential to reach marijuana to enforce its ban on the interstate trade. in this way, justice go to adhere to the tenet of the democratic constitution, judges should defer to the majority of legislatures. in short, six of nine justices
exercise judicial restraint and deferring to the democratic will of congress when it came to enforcing the scope of congress' power on the improper causes. three justices were prepared to draw a line of federal power to prevent citizens from producing and consuming a good on their own property within the regulation of such a committee is to the states. so six justices to the democratic constitution while three were prepared to enforce the text of the republican constitution. the same divide over the proper role of judges from forcing a republican constitution of republican constitution arose 10 years later in the obama carry case. i banned the numbers have moved in a republican direction. there, the four more justices are monolithic in their deference to congress' claim of power to require citizens to do business with a private company.
that now, for conservative justices including both scalia and kennedy stood for in favor of the republican constitution's limits on federal power. as we know, however, the fifth swing vote was by chief justice roberts. as i explained in the boat can i tell the story of the obama carry case in which i got interested in the second row plays a prominent role in the first chapter of the book, chief justice roberts affirmed every public and limit on the scope of federal power by holding, chief justice roberts holding that the individual purchase mandates were indeed beyond congress' power under the commerce the necessary and proper clause says. on the other hand, you then invoke the democratic constitution restrained adopting what he called a saving construction that turned the individual insurance requirement into an option to buy insurance or pay a modest noncoercive tags. as he put it, quote, granting
the act the full measure of deference owed to federal statute, it can be so rad. he then defended this move by insisting that it is not our job to protect the people from the consequences of their political choices, unquote. perhaps he expected the split approach to be received by conservatives with equanimity. but it wasn't. many on the right were outraged by what they believed -- because they believe that it was the job of the supreme court told congress to its enumerated powers and thereby protect the liberties of we the people even from a majority of congress enacted obama carry. in this way, the obama carry decision was a political inflection point in how conservatives conceive see that the role of judges. ever since the rise of modern conservatism, conservatives have been conflicted.
on the one hand, unlike the left, they are committed to following the original meaning of the constitution. but on the other hand, many have long profess their belief in the doctrine of judicial restraint, yet ironically as i explained above, the doctrine of judicial deference to the will of legislatures was promoted by political progressives as i sit a free commerce from that legislative power that were in our republican constitution. as a result of chief justice roberts of holding obama carry the name of judicial deference, the trend of opinion among conservatives have been sharply from judicial conservatism and restraint towards what is best called constitutional conservatism in which favors judges enforcing the original meaning of the text, even if it means invalidate any popularly enacted laws. but the judicial philosophy of the court evenly divided, the
next appointment will be crucial. for years, democratic presidents have been adaptive selecting justices who would hear without doubt to the democratic constitution. in contrast, the record of republican president has been deeply disappointing. appreciating differences between democratic and republican constitution's help reveal why this is happening. by selecting judges and justices for their commit it to judicial restraint in deference to the majoritarian branches can the republicans have actually been nominated and confirmed dangerous to adhere to the in practice, at least when the chips are down. no matter how much conservative justices might profess a commitment to follow the text of the constitution as chief justice roberts did when he agreed with us that insurance mandate the sun comes to traditional, they are always inclined to refuse to enforce the constitutional text again the congress or the president as chief justice roberts did when
he was turned around and adopted what he called a saving construction that changed the meaning of the statues statute that he could have pulled it. and it is standard operating procedure for republican appointed justices in the name of decisive to adhere to a post to disapprove our precedents that have the text of our republican constitution. since democrats will never nominate a full-blown adherence to the republican constitution, restoring our constitutional republic will require a republican president who well. a republican president who will seek out justices who appreciate the declaration's affirmation that first come the inalienable rights of we the people as individuals and only then comes government as their survey. justices to realize that the democratic will of the majority is not the solution to the problem of constitutional legitimacy, but instead
served as a law clerk of the us court ofappeals for the ninth circuit . for the us supreme court justice, byron white. he also served as a special assistant to the first us secretary of education. professor is internationally recognized as a leading scholar and teacher environmental law. since 1992, he has been the principalauthor of the country's most widely used casebook and environmental law , environmental regulation, law, science and policy.now in the seventh edition. he is the author of more than 100 publications that focus on environmental law , federalism, presidential powers, regulatory policy and history.he is a
visiting professor of law at the harvard law school and at the georgetown university. he was taught and lectured in china and is taught and lectured altogether 29 countries in and onto god. >> this is his secondvisit . it's in the next three months. we are delighted to have him back please welcome professor robert . [applause] >> thank you, roger. as i travel around the world, one thing i always carry with me is the cato publication constitution. this one has been to countries
and i want to thank roger because he just presented me with a new copy of it that i can keep bringing with me. what i like about it is it's the oldest written constitution. when i go to china, the chinese people are dying to have an independent judiciary and to develop a tradition of the rule of law. it's under a one party system where politics reigns supreme and the communist party gets to decide what cases the courts will hear and often how they are decided. when i teach it, i start with the following historical proposition. i say what the founding fathers were faced with is the articles
of confederation how can we have a strong federal government? at the same time, how can we protect individualliberty . it's under the thumb of king george. thesolution , as randy indicates, was two things. federalism and separation of powers. divide powers among the judiciary, legislative branch, executive unitary that they decided upon. they have dual sovereignty is for federal and state government. throughout history, it has been a recipe for lots of conflict, political conflict between the branches of the government and
the state and the federal government. that is part of the constitutional design. in his book, professor barnett writes very engagingly and very excessively with great historical stories and i think it's a book that people should buy at costco for a very wide audience.however, i think it's fundamental premise that there are two diametrically opposed interpretations of we the people, sets up a false dichotomy that tends to push us into further division. in fact, i think that, while he demonstrates that it's possible to view the same document into widely different ways, what we had today is an understanding that the constitution protects individual rights and it allows government to function effect
tivoli, usually through the rule when it doesn't trample on the rights. >> the real conflict is how you draw the line between when we decide to protect individual rights and when we reject certain constitutional challenges. the professor starts out by noting how, when the obama care legislation was debated in congress , the republicans were having a hard time coming up with ways to defeat it and no one could think of a constant reason why it would be unconstitutional. he developed a theory as to why it would be and it was instantly embraced by the political party that was trying to stop the legislation from being adopted. at the time, most constitutional law scholars said, you don't have a prayer
of succeeding on this but after it was embraced by major political party, in the supreme court and the lower court among the judge's that were appointed, this is by republican presidents, it got a much more favorable reception and for the chief justice roberts, he decided it was constitutional as a tax that it could have been struck down. what this illustrates is how strong the ideological divide is today, even in the judiciary. when i was a law clerk for justice white, things were quite different. you could not predict how the justices would vote on a particular issue. when white was nominated, his confirmation lasted 90 minutes. his most significant statement was that he was asked, what is your view of your role as a judge and he said it's to decide cases. he was confirmed by a voice vote of the senate a few weeks
later. my, how things have changed. we have not down and drag down ideological values over supreme court nominations. the court has become subject to the perception that they are influenced by politics rather than by law. now, the book advocates many things that reflect conservative preferences as to how they would like the lock to change, the prescriptions of the republican constitution. there should be a huge cutback in federal powers and the court should not defer to administrativeagencies . the's times, at various times, congress has been very act of and passing a lot of
legislation, critically in the environmental area where most of my scholarships are. the way that changes brought about through litigants coming up with clever new theories to try out on courts and try to sell the court a lathat has been affected and working well for decades, that should be struck down on constitutional grounds. the classic case is the american trucking case from 2000 where a three-judge panel voted 2/1 that the clean air act was unconstitutional on nondelegation ground. when the case came up to the supreme court, it was realized that that would be a pretty radical change. it would strike down almost all of the legislation that authorizes health, safety and environmental regulation. the court unanimously rejected
it despite the pleas of the industry that they should rewrite the statute require cost-benefit analysis for everything. professor barnett advocates were individuals, anytime anything affects the liberty, could go into court and force the government to justify why they are restricting the individual's liberty. that would be a recipe for tremendous litigation. we already have lots of litigation. it's done through challenges under the administrative procedure act where the agencies have to follow the procedures and right now, obama's clean power plant is set to be with lots of legal challenges to it. they will be heard by the d.c. circuit on june 2. i submit that that is a better way of dealing with this instead of letting each individual force the government without any presumption of constitutionality to strike things down.
the reason the us has the oldest written constitution is because of its capacity to evolve.it has evolved and changed over time. when i was on thesupreme court, the court was not ideologically split but there was one justice, a new justice , william rehnquist to had a new ideological agenda.as a result, justice white would make them read anything that came from his chambers. in keeping with the supreme court tradition, we had an opportunity to have lunch with each of thejustices. at the time , in 1980, we asked the justice, what decision are you most proud of? he said national league of cities versus ussery, a case where a 5/4 majority struck down federal wage and hour legislation has applied to state government employees. we said, why are youso proud of
that and he said , eye view it as a agent in place. he had an agenda. he made it exclusive in his early defense. it's an agenda to restore limits on federal power. he eventually accomplish that with the lopez decision with the prince decision to, in a way that did not threaten radical change in our entire system of federalism. it send a shot over the bow of congressto say , you need to be much more careful in defining why what you are regulating affects interstate commerce. now, just a few days before justice scalia died, the chief justice roberts in new england law school said part of extreme extremism is damaging the public's perception of the role of the court. he says a particularly gives increased politicalization of
the process. the public starts thinking about the supreme court not as a legal institution but as a political institution. unfortunately, i think professor barnett's approach that he advocates in the book would exasperate this tendency. when obama announced that he was going to make a supreme court nomination for the vacant scalia seat, the republican leadership immediately announced , we will not even consider it! don't even bother. >> this was truly unprecedented. the idea of no hearings and no nothing. we won't even consider it. president obama surprise lots of people by moderating a justice who is agreed to be very well-qualified by virtually everyone and yet the senate will not even hold a hearing on the nomination and,
even though the judge was a classmate of randy barnett and he agrees that he is a very smart and qualified person, he says being qualified is no longer enough. what is enough? what is enough is that apparently, the republican party feels like we should just blind ourselves and not let the public hear the views of the justice at the hearings and wait until we have a new president who would appoint justices who would reach our preferred political outcome. i submit this and it's moving us further away from the rule of law and it's a very dangerous tendency.i would hope that, despite the fact that maybe many of you would not share justice garlands preferences with respect to how
certain cases would be decided, that you would realize what a shameful situation is is when we have such an intense politicalization of the most important institution in america to preserve the rule of law as the independent judiciary. now, in conclusion, the constitution and interpretation of it are always going to be an evolving process. it should evolve, not through radical change like this book represents but not through politicizing the supreme court and we get our fifth justice it will decide everything our way because he is the republican party. witness to the condemnation by the right wing and the tea party of the chief justice roberts who is an excellent
justice in the tradition of trying to maintain respect for the rule of law but just because in one case he did not buy the preferred political outcome of what they wanted. professor barnett's has a new book out called engines of liberty. he illustrates how the constitutional change happens and whether it's for gun rights in the heller case or marriage equality, it's the groups having long-term strategies to change public opinion and educate people about constitutional history. that is what professor barnett's book is trying to do. the fact that the professor response to this to the evolution of social norms is a historical fact. given the open ended character of many of the constitutions
guarantees, it is inevitable. i submit that this is a better way to see our constitution evolve rather than the radical change that advocated in his book. professor barnett does indicate that he thinks he could only accomplish this as a central part of the democrat of the republican party platform embracing in his view of the constitution. he also admits that some of the changes would be better off done through constitutional amendment. he wants to repeal the 16th amendment and those of us who signed checks on monday to censor send it to the irs, it sounds appealing. it certainly sounds appealing. he is hostile toward the 17th amendment. many ways, it would allow senators. in many ways, the book wants to take us back in time quite a bit and to work radical change.
if we want to keep the republic as madison says, i think it's best that we try not to politicize the court's. [applause] think you think you. >> we never promise our main speakers afree ride . i want to thank professor for keeping the tradition alive. now, to tell us why the living constitution should have a state driven through it until it is dead, dead, dead. we will hear a response from randybarnett ? [laughter] >> as ed once said, the only living constitution is a constitution that's followed. the constitution that's ignored is a dead constitution. i am in favor of the living one
and the one that we have enacted. inky professor for those very insightful and stimulating remarks. i could see that the professor was very nostalgic. they were nostalgic remarks. what was he nostalgic for? he was nostalgic for the good old days. we all like thegood old days. they are at the age when the good old days look so good . back in the days when he had all of the justices agreeing with each other. about how the constitution should be interpreted. yes. i can imagine all the justices agreed with each other about how itshould be interpreted then at that point , you will confirm a new justice and all that matters is their qualifications. are they smart? honest? a judicial temperament? if everyone agrees with how it stands and how it should be interpreted, everything turns to qualifications and nothing
else. who was the dog in the manger? who started spoiling the fun? it was associate justice william rehnquist. you know what his problem was? he was ideological. all of those other justices up there were not ideological. they were just rule of law guys. they were just neutral. if justice rehnquist came on, he was ideological.what were then fair favor of? in favor of federalism. that was it. you will notice that it's a strange commitment. it's a commitment to a division of power between the federal and state government. you can call it ideological. it's respect to the outcome of particular cases. the chief justice voted for
diane monson's claim to be able to use medical marijuana as authorized law. it's under his rentable commitment to federalism. not because he used as a policy but because he was committed to federalism. that is what this terrible guy, and ever since then, it only got worse. more of these judges have gotten on the bench arguing for things like the federalism or in the recent case of the obam executive action orders , separation of powers. the delegation of powers. we can't have that! that's too ideological. one of the antidotes, i think, is the thesis of my book. it's this way of talking about the problem. it's not the political outcome or the political preferences that differentiate.
there are two sides of the court now and the people her who are nostalgic for the old days and what they like is when there was only one side. now we have a competition. we have two sides and they are roughly coterminous with different parties. you could reliably count on the democrats to appoint justices in the old mode and you could hope that sometimes republican parties might choose people who are opposed to that mode. sometimes they do and sometimes they don't and sometimes the people they choose are good and sometimes they are not but the antidote to this way of thinking is what separates the parties and what separates the justices is not simply a commitment to the political preferences. it's the way that professor sandoval put it is the way most people do. it's a commitment to two different visions of the constitution. it's useful to step back and see what separates the two visions. there are different ways one could explain it. in my book, i decided that the most effective way of understanding it was to
understand the difference between we the people as a group and which we should be able to rule by the majority rule and we the people as individuals inwhich we the people established government to secure the rights of the individual .these are two different ways for looking at the constitution. i don't and the constitution is neutral with respect to the views. i think it was deliberately crafted to adhere to the second of these two views. it only can be made into a democratic constitution by ignoring key passages like the ninth amendment that says the enumeration in the constitution of certain rights shall not be construed to others retained by the people or the 14th amendment that says no state shall make or enforce any law that shall abridge the citizens of the united states. two of these provisions, if you came down from mars and you read it in the constitution, you would think it was pretty important and someone would come along and tell you why it
is thatthese two provisions are not enforced by the supreme court or by anyone else and they are completely lost in the republican constitution. why do they have to get rid of them and others ? our constitution is of the second variety.it's a republican constitution and you need to adopt a living constitutionalist approach to get rid of the parts that get in the way of the democratic constitution. what i'm hoping to propose is a compromise between the idea that denying that partisanship plays a role because it clearly does. republicans have a different role than democrats. it's identifying what the view is about. don't make it political preferences but competing judicial philosophies. i will say one more thing in response to how professor opened his remarks.both of these visions of we the people are attractive and they really are. sometimes we try to hold them both in their mind at the same time. it's a popular rule that's appealing and individual rights
are appealing. for that reason, both positions incorporate elements of the other. democratic constitution and the progressives that gave it to us could not live under the regime for 10 minutes before they started to make exceptions for what they called fundamental rights or what they called classifications of groups. the immediately qualified the commitment to the democratic constitution. especially when they took control of congress in 1946. they thought, maybe we should rethink that. it's always talk about it. by the same token, the republican constitution does integrate democratic governance into a structure. the house of representatives is supposed to play that role. the jury is supposed to play that role and electoral college is supposed to play that role. the republican constitution does allow for democratic checks on power. it doesn't pretend that the democraticchecks are the same as the voice of the people.
ultimately, the difference between the two visions is what is your rule ?what is your exception? democratic bull is majoritarian and they will give you select exceptions to that that they can choose. the republican rule is the rights of the individual and within the people do have elections in an election in order to check the power that the government has over them. each side really accommodates the other but what we have in the document is a republican constitution. [applause] think you, randy. we have a brief exchange and we will open it up. >> professor barnett indicated that i might be distorted. the thing i'm missing most right now is that i just took my students to oral argument and the absence of justice scalia makes oral arguments a lot less entertaining. with respect to request, i wasn't condemning him for having a strong ideological
commitment to federalism. in fact, i think he demonstrated how the commitment transcended whether it was a conservative or liberal cause. in case after case, there is a nuclear memorial in place and he upheld it because he respected federalism. the industry groups wanted it to be preempted by federal law. anytime a state would try to deal with the problem of interstatetransport and hazardous waste by barring that waste from being disposed of . that court would say it's a violation of the dormant clause but not justice rehnquist. he was truly nonpartisan with respect to theother justice on the court , i don't think there was a liberal group that was controlling the court at the
time. look at my own justice byron white. the only justice appointed was one of the two centers in roe versus wade and he was at the center and miranda. finally, with respect to the supreme court confirmation process, i just brought along some statistics with me and i know that president nixon is a republican nominated william lindquist to the supreme court on october 22, 1971. the democratic had a 54/44 majority in the senate. he was confirmed on december 10, 1971, less than 2 and a half month later. it's incredible how our system has now gotten to the point where i fear for what will happen next. democrats elect the president and the republicans retain the senate and they will just say we like eight justices and we won't even consider judge garland or any other nomination
until four years later we have a republican president. we can't do it if we will retain our system of respect for the rule of law. >> a quick response, randy. >> if the democrats had confirmed robert, someone who i do not support and who i believe was qualified by every measure that mayor garland was qualified for, i don't think we be in the situation we are in today but at that time, biden said something i agree with. that is judicial philosophy. he said it was ultimately as relevant as what we would call qualifications. it was a legitimate part of the senate's vetting of a president appointment from the opposite party.that's all that i'm advocating and that's all that the republicans in the senate are currently saying. judicial philosophy matters in addition to qualifications and
president and elected senate. they will decide in november. >> the situation today is unprecedented in the following sense. in the modern era of post-1900 era, there've been only four cases of vacancies during, that occur during a presidential election year. two were in 1916. one was in 1932, and one was in 1956. in the first three cases the senate was in the same party as the president. in the 1956 case, it was that amount to that in the sense that when president, when justice vixen step down for health reasons, the same day president eisenhower nominated president william brennan as a recess
appointment. the next year he nominated him for the seat. and the senate was in democratic hands by two votes, but the seven democrats at that time voted with the republicans in many cases. and so that was not really relevant either. this situation here is one that is unprecedented in the modern era, and it's hardly a case in which the president can stand on principle grounds since he joined the filibuster against sam alito in the very first year of the second term president bush, not in a presidential year. moreover, we seem to forget that when president bush made nine
appellate court nominations on may 9, 2001, the democratic senate sat on those nominations for nearly two years, and they included such people as john roberts, michael mcconnell, miguel estrada and other extraordinarily well-qualified people for those appellate seat. let's go now to your questions. and if you would wait for the microphone to get to you, if you would identify yourself and any affiliation that you may have. and let me also ask you, while one person is asking a question, let me know that you want to ask a question so we can get the mic to you and have little downtime as possible. all right, let's start right up your and then let's go secondly to the gentleman in the green
shirt right here. >> speak my name is lex and i'm unaffiliated. my question is for professor barnett. i would like to just, a sense of reality into this discussion. utah restoring the republican constitution. to what extent is it possible any way, shape, or form to do that? hasn't it been dead since 1938? do you imagine something like helvering, there's a court in our future that will reverse helvering and restore the enumerated powers, or that the ability to regulate everything under the commerce clause will be somehow limited? tell me how the republican constitution gets reinstated or restored some a. >> that's a great question. chief justice rehnquist adopted a strategy which i call this far
and no farther strategy. it is in it we can strategy, and that is he said look, we will take all previous expansions of federal power and consider that to federal power. if you want to go beyond that you've been of special justification for doing that, and the justification you offer should not also be consistent with unlimited power in the hands of congress. that's what lopez represented, that's what morrison represented. that's what five votes represent and help their case because mandating you to do a particular product was something congress had never tried before. it was going up of that line, and that justification offered up half of it basically said congress can do whatever it wants which is what the dream list of progressives have been. one way to deal with this is hold the line. we all constitutional change happens is it happens gradually whether we like it to or not. what matters is what direction
it's going, not how fast you get to that. you can certainly slow and then you can limit and then you can stop and then you congratulate rollback and that's the way this happens on a multimember court. the members of which the constituents will evolve over time with multiple cases. that's actually how it will happen. it isn't going to happen unless you understand the different conceptions of the constitution that are in play as long as you confuse this with political discriminate not a matter of principle. it's not going to happen and you see what the ultimate goal should be and then you can work toward that end. >> andrew hodge, i'm a local attorney. my question is about professor
barnett's discussion of the declaration. what is your understanding of why jefferson used life, liberty and the pursuit of happiness over the more common phrase life, liberty and property? does that change in any significant sphere of the perception of the constitution speak with no one is entirely sure why the change was made. it's a matter of speculation. it was done in the course of drafting this over a short period of time. there has been speculation, i don't even want to entertain what that speculation is. the formulation of our natural rights was george mason strapped for the virginia declaration of rights that jefferson was copying from. mason sent in the copy. i told copy. i tell the simple. mason sent him a copy of this draft declaration be drafted on a couple months earlier and jefferson had it in front of him when he did a more succinct life lived in the pursuit of happiness. it was mason strength which talks about the acquisition enjoyment of property that was
copied by several other state constitutions, including the massachusetts convention. massachusetts constitution and it was mason's version that led to the abolition of slavery in massachusetts by the supreme judicial court. i honestly don't want to speculate about why he changed those words but it was mason for malaysian that ultimately became the more canonical version that was spread throughout the united states at that time. >> walter olson with the cato. a question particularly for randy barnett. with the general logjam of constitutional amendment process so that nothing much seems to be getting through, there's been renewed interest in the article v constitutional convention process. i wonder if you could say a
little about how and whether this maps onto the republican versus democratic id of the constitution, the idea of calling a convention to amend? >> well, i by the way in involved in some article v movement and i do endorse article v at the end of the book which was mentioned in the course of the comments. it really would depend on what an image of being proposed. we have progressive of them is to make part of the constitution like income tax amendment that made the constitution less republican in part because it generated so much money for the federal government that they could buy off states and coerced them into taking part in federal programs otherwise citizens don't get their money back. it wasn't me to this effect. a day. to whether an article by convention which is perfectly permissible under the, of the
constitution perfect okay to change the constitution under the constitution, whether that's good is a republican or democratic ends will depend on the substance of the amendment under consideration. i favor an immense that would make the constitution more republican in a sense i use it and that's what i think, there's two purposes, one is too great supremsupreme court decisions iy the supreme court itself is not going to do and in what is to fix some of the problems that we now know exist without republican constitution which is not a perfect constitution. >> and the point range of races with respect to the 16th amendment and the misuse of the spending in general welfare clause this is nicely set forth in james buckley's book saving congress from itself, about grants in aid that involve the federal government, congress and the money to the states, picking
up 80% of the tab if the state to only put in another 10 or 20%. and indicating the uses to which the money shall be put, ma in time then removing the money leaving the programs in the hands of the states for projects that had they spent their own money would probably never have chosen. said james buckley's book that we featured here at cato, saving congress from itself, addresses that problem in a wide variety of context. album, you have some comments. >> i wanted to say randy does a nice job in the book of covering the article v convention possibility. what's scary about is given the incredibly strange state of our politics today, as randy indicates, it would depend on who's going to be at the convention, the possibility of wholesale changes in the constitution is very scary to
people, should be very scary to people of all political stripes. randy does point out that they can proposed amendments, they would still have to be ratified by the states. but i would argue in our current state of politics that there's nothing to justify such a radical step. >> it would take only 13 legislative bodies to block any amendments, but during this election season i'm not sure that that would save us. yes, right here. >> johns hopkins your the only mention of republican in the constitution is the guarantee clause, the national governments obligation to guarantee a republican government to the states. and it seems to me what you're
suggesting is the constitution itself is the republican guarantee of the national government, to the national government. and justice, of course we know the republican guarantee clause was rendered irrelevant by chief justice taney and antebellum case, but justice thomas has recently revived it in the case of apportionment. so i would like you to speculate about this all work together for the restoration of national republican government. >> thank you. i haven't read justice thomas opinion yet although i have read about. i haven't thought exactly a negative question you asked so i don't want to speculate or too much on c-span about what i might be thinking about this. but i will say that it was
after, it was almost immediately after our republican constitution, this one, was devised to solve a problem that they felt needed solving, that virtually every state then copied it. the states at a variety of different forms, many of which were much more democratic. almost immediately after this was invented as controversial as this was in getting it passed because it only passed narrowly, within a few years every state had emulated this form of government. that's why they all have three branches of government. there's a few variations. the meaning of republican government i believe had changed away from the more democratic governments that have dominated states before. janice, present-day america, new
software to help keep our judiciary accountable. you've mentioned the situation regarding judge merrick garland, and if it should be heard. hasn't he basically impeached himself from having the ability to treat the judiciary correctly when he recused himself from holding judge richard roberts accountable for the rape of a 16 year old as a victim and he was a prosecuting attorney? when he made the decision to recuse himself and not hold the judge accountable, and we as americans are going to be paying his salary no with his retirement, he seems to be a pattern and practice with the judges not holding each other accountable when they are self policing. >> well look, i know merrick garland i think very highly of them. i've heard about the case you are talking about.
i don't know specifically why he recused himself. effective in reducing soap is another judge would hear the case, that he would not hear it for whatever reason. and i do think that the reason why the republicans should not go forward with nomination has nothing whatsoever to do with his own personal merit or his own personal integrity. i can imagine that he would be a fine supreme court justice if i agreed with his vision of the constitution. i would just let it go at that. >> i will say one thing. one of the concerns expressed to me in his being nominated is that some of his reputation might be dragged through the mud. i told them that i didn't think the republicans innocent had any interest in doing that. i said i could speak for interest groups are activist groups i didn't think the republicans innocent the. as long as the republicans stick to the principle, this decision should be put off past november, then i think that we should
avoid any sort of personal attacks on judge garland. >> tim lynch with cato. this question can be for both panelists that is primarily for randy barnett. you make a strong case for the republican constitution over the democratic constitution, but can you talk more about the third school that you alluded to which is kind of the results oriented school, which is really the popular view, which is people who, if they don't like and law, they want the supreme court to invalidate it. and if they do like a law they want the supreme court to uphold it. it's kind of awkward i know because to my knowledge no scholar has written a book defending our come to the defense of this third school, but it's probably the popular understanding in our culture today. i certainlacroy run in my travels.
so i think it may be a more powerful school and it is a republican or the democratic schools of thought that you've been talking about. >> i'm against. [laughter] >> we all have our priors. we all, all of our instincts about any case we first hear about is influenced by how we wanted to come out. i am like that, everybody is like that. we have a rule of law in order to temper our players come out prior commitments, to qualify as come to make us run through some of the with analyzing things to see if we are okay, if it's justified for us to get our way this time. so sure if we start with our priors. we evaluate constitutional arguments as to whether their persuasive or not, in part based on those priors but those arguments are tested against our
opponents and objections to those arguments and eventually we should try to reach considered judgments on whether they fit with the rule of law, not simply with our political predisposition. the only main message i'm trying to get through, one of the messages i try to get through in this book is that what separates in this respect people on the left from people on the right within the legal system, within the legal culture is not a pure disagreement over outcomes. it's not what separates the left from the right side of the court. they all have a rooting interest in this outcome of that outcome but what genuinely separates them is the commitment to one vision of the constitution over the other. a democratic constitution with qualifications or republican constitution with exception. which one is the vision that motivates them? and more explains their behavior that looks partisan than simply i like this outcome, you like that outcome, and we're going to figure out which rationalize it. >> i think the best example of that is antonin scalia's
opinions into to flagburning cases that came up in 1989 and 1990. he obviously was not a fan of flagburning but he found the law unconstitutional, and that he said afterward when he went down for breakfast that morning, his wife was marching around the table singing it's a grand old flag. >> could i add one more thing? i think professors are at fault for this because i think the what constitutional against the don't even in law school is you have a class discussion in common law, all you for or against flagburning. they can argue on behalf of your site. you make an argument on behalf of the other side and make it out to be in class and anyone who's sat through that can testify, they make it out to be you pick which outcome is and then you marshal every argument in favor of that outcome and the other side does the same thing, and an then the judge will pick
which outcome delight. this is the picture or portrait of the practice of constitutional law that is taught in constitutional law classes. so it isn't a surprise that the general public would have this view if common-law teach it this way. i don't think ultimate it is the way the justices ultimate decide cases. i'm guessing they never do. i'm guessing basically they are committed more to the principles of the cost edition. they just disagree in a partisan way over what those principles are. it's useful for us to focus on that because if we only pick judges that we think agree with our outcomes we will be disappointed if, in fact, they hold principles that verse to the way we think the way the constitution should generally be interpreted. >> statutes are much easier to change than the constitution is to amend. that's what it's unfortunate if the prescription is we should have much more judicial activism that will encourage lawsuits
claiming that he didn't reach reach my preferred outcome this is unconstitutional. it would really leave things mms. so in that sense i think we are for but off if we try to effect change by changing statutes then trying to get the court to create scores of new constitutional doctrines that limit our ability to react to problems. >> i want to ask if you thought that maybe the best practical way to restore our republican constitution is following some of the prescriptions of charles murray in his most recent book of funding outfits like the institute for justice, another outfit, party on this group as
well, detested most demanding we the author on the books in the state. i only ask you because mr. lynch, i think the third approach that he was giving voice to, i don't know if you for or against it but just wanted to put it out there. >> he would not be eradicated if you were for it. >> yeah, it speaks to how i think the law is regarded by folks who would not demand that it have any clear rational justification or rather i like it is if i like vanilla or chocolate ice cream. i would ask if he thought the approach, which doesn't seem to be as professor percival would say, to be cooked up by law professors, i think it's a pretty organic from the ground up problem. eyebrow threader's in texas, intelligence and arthur levitt seemed to be practical problems in the real world. i was hoping maybe you could
articulate how those cases might be a way to help restore our republican constitution. >> not debated too much, i would just say this gem is from the james wilson institute that have a chapter in the book in which wilson figures prominently because in this decision he well articulated the individual conception of sovereignsovereign ty that i favor. i got that idea essentially, james wilson, our most neglected under. my second pander will be for the institutinstitut e for justice. i ran into something -- into somebody left the s. avenue cookbook out. it's a big circle treatment. it starts at the founding and then it tells the entire story of the united states that culminates in the formation of the institute for justice. [laughter] that's how it all and. at the end of talk about clark uses the terms of engagement of us all the cases he talks about in his book as a rogue efforts
to identify irrational and arbitrary laws at the local level. again ipad to the institute for justice. and, finally, my final papers to charles. i think the first a debate over the most succinct summation is of law for for show low students. i recommended to bush or lost it's because it's an overview of all the law they're going to build on and what's wrong with it as torture law student. as for his proposals, so that i think a more workable than others but the idea that there could be free representation to challenge laws that are irrational or arbitrary would be a way of disciplining administrative agencies of both state and local level. is oftentimes board comment by industry people that just basically you think you carve out the interest. this is a wonderful in a sense market alternative, check the could be put on government power us and give judges who are prepared to these cases as magistrates and that something
this book is an effort to get this stupid this is a book about what role judges should have been at the end of the book i argue judges do have a role in screening out irrational and arbitrary laws at its only if they think they do can the cases that the institute for justice brings be decided fairly. >> when i taught constitutional law i never taught it the way for parse apart describes and i'm sure need of a professor on the panel teach constitutional law that way. can i hear something to reconcile the discomfort you describe, professor barnett, that james madison had with popular democracy with its documented urging at the constitutional convention for proportional representation and against the idea of now apportion senate? the argument that eventually gave up by the constitutional
convention as a way of political compromise in getting the constitution passed spirit there was a lot of back and forth to james madison's original overall scheme did not get adopted as it was proposed. nobody's original scheme did get adopted as proposed. matteson coming from a powerful big state want a powerful big states to call the shots in the convention. lo and behold the representatives from the smallness powerful states for a post today. and to get them on board a compromise had two days -- had to be made in which the size of the statement and when house and the size of your state did not matter in the other house. this is a compromises are done. madison was a representative of virginia and to look out for virginia's interest in doing that. that is not in all conflict with his other commitment, to the idea that popular input, for one thing the senate, i do know what
the state of selection was at the time this was been proposed so let me not go there. but none of this went against his commitment that the voice of the people which he believed did play a role in government need to be filtered. it needed to be filled in order to protect the rights of the minority and individual. he believed that as well. so there were filtration mechanisms he felt put in place in all three branches of government in which the voice of the people would be heard and it would not necessary to decide the question. the house that would be the most popular branch of the legislative branch. the jury which could judge both the law and the facts of, the facts and the law in every case would be a popular input into the digital branch when the essentials every case would be a jury case. and the presidential selection would be done by an electoral college that was, delegates which would also be elected popular to do with input in all three branches. they just wasn't to be confused with the unitary voice of the
people caught concept that do not become popular and to the rise of the modern democratic party which it but in the book in the 1820s and 1830s when they started calling themselves the democracy. because they would support to which the will of the people would be hurt. that one party and only that one party. >> well, thank you professors barnett and percival. the book again is "our republican constitution" by professor randy barnett. it's available outside for a discount. randy would be glad to sign it for you. it's available in better bookstores everywhere and costco. if we run out of books outside speakers i can just a i always aspired to write a book you can buy in the airport. but even i never could imagine about the book you could buy at costco, so this event huge
accomplishment. [laughter] >> we are going to break for lunch in the second level of the spiral staircase at the george jager conference center. but before we do, please, let's have a warm round of applause. [applause] [inaudible conversations] >> is there a nonfiction author or the book you like to see featured on booktv? send us an e-mail, booktv