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tv   The Constitution Today  CSPAN  October 23, 2016 10:00pm-11:12pm EDT

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affairs program. our guest is the renowned constitutional law scholar. the remarks will be based on the latest book entitled the constitution today the timeless lessons for the issues of the era. with so much at stake you may wonder why turn our attention to the constitution, to the document penned so long ago by those long gone. the answer may surprise you as it is simple and direct. the constitution matters more. it is that one document created to watch over the government, limited power and protect individual rights. they are all under the rulings of the constitution. in the constitution today, they bring the constitution to us.
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he does this by analyzing the real-life constitutional content of the last two decades and bite drawing our attention for the examplexample to the impeachmenf the contested election of george w. bush and the affordable care act. he teaches us how to do constitutional law. there is a conservative way that abuse it in light of the word on the page and the original intent of the founding fathers at the time of the signing. and there is a liberal way to change times. after today's talk i'm positive there maybe a third. may be a third. please join me in giving a warm welcome. [applause] >> that was such a great
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introduction i'm not sure that i should say anything more because she gave an extraordinary account of what it is that we are going to be talking about today which is the constitution and its ongoing relevance. at a certain point actually earlier than you might expect, i'm going to draw you into the conversation to have a democratic conversation about the issues that you want to talk about. there is a reason you all came out tonight. we are all part of a constitutional tradition that is especially relevant at election time for the reasons i will tell you in a minute or two and maybe this presidential election more than any other i can remember since, believe it or not, eating
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64. and i will tell you why this is such a significant event and why whether you know it or not you all works from two displays to have a conversation. before i tell you about 1864 and this moment, joanne and i think got us off on just the right foot by reminding us about the beginning of the project. so i want you to take your mind back to what the world looked like the year before the constitution was proposed. the constitution wa was double e rate of him by the american people in the hinge of human history. the year that changed everythi everything. if you are looking at things from a secular point of view
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there is before the constitution and after the document. let's go back to 1786 the year before the constitution is proposed. you look across the planet and who govern themselves democratically outside of the united states? outside of america theirs britain, switzerland, and that's about it. you need an annual income of sterling in a state with 600 pounds to occupy the seat in
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the house of commons. he decides the issues of war and peace and hires and fires prime minister's atwell and has power but no one that you elected him and the house of lords is a real power in a genuine legislation not like today's house of lords that is not so aristocratic you can earn your way onto it. but there are some in 1786 in switzerland but by the way it has no cities, no banks, mitt ad mitt romney isn't interested in it.
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they are more she then human beings and they are largely self-governing because they leave them alone and you have to charge up the hill. that's it across the planet for the self-government. and then in 1785 and 1585 in all of the 80 ties all the way back to the dawn of time yes there are a few that make the go five centuries before did you have in. all rove and little place is smaller than new haven connecticut for example they all
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speak the same language and worshiped the same they are not warm and cold weather and people getting together or multiple climate zones were time zones for that matter and they can't make democracy last a long stretch of time to old blink out basically. so here is the history of the world. then we the people of the united states did in fact established a constitutioconstitution up and a continent if joe biden were here
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the world would never be the same. when they are born they have a british monarch no one voted before telling them what to do in the parliament that no one voted for and just like the american revolutionary is confronted. it's the time zones and multiple religions and ethnicities, multiple languages they govern themselves in a written constitution with free and fair elections in parties alternate and the rule of law and tolerance and equality and free speech and judicial review and where do they get those ideas
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from? the constitutional project. it's almost as impressive as california. i say almost because they don't have as much religious toleration and e. quality truth be told. they don't have as much linguistic diversity and ethnic diversity truth be told. but at the time of the constitution it is a monarchy and not just france and the great republic today but all of western europe, ital if only bee we talked about germany. we could talk about eastern europe. i want to give credit to both liked ronald reagan and the democratic president like jack
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kennedy now we have democracy because much of eastern europe is struggling. they are in the czech republic and ukraine and elsewhere. japan. it was made in the united states of america and by the united states constitution which isn't just a text but an act in the establishment and that took place in 1787. we the people did something.
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they handed the wall down from on high. it was the institutions, practices evolving the customs but it was never reduced to the single text of the parliament has offered a. that they caa. they can vote up or down. they can make this stuff up then and now start to finish it takes you an hour. or an artisan in new york or anywhere else up and down the continent if you can still read it and you have to make ongoing constitutional decisions and
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come to that in just a moment but even the ancient democracies didn't have democratic constitutions making up the procedures and in 1776 the declaration of independence. the articles of confederation to the pre-existing regime not putting any sort of a popular vote. massachusetts does the thought thaof popular vote and new hampshire and it takes those local state experiments into the state experimentation and it's going to take that idea and bring it to scale to put on the boat on -- vote.
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now we are doing it up and down the continent not just voting but speaking and no one votes you off if you are against it and people who oppose the constitution come if you opposed the declaration of independence you are never heard from again. you've are either with us or against us and if you're not on our side you have two choices, we were shut up but that is and the constitutioisn'tthe constit. people become president of the united states, justices on the supreme court. the people that oppose the constitution say you forgot the
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rights. what appears more than any other, the right of the people to keep and bear arms and be free from unreasonable searches and seizures and this appears why, because it is coming from a preamble process. you were an elite group in the room and you forgot the rights. the constitution is crowd sourced. if you believe in democracy, you believe that there is a common wisdom of crowds than any one
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individual like ben franklin and that is the project we continue to. so if the game in 87 and 88 and the later generation will abolish slavery. some don't understand the birthright citizenship and we promise voting rights because we
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have half a century later if you don't think the women's suffrage matters, i've got three words for you, president mitt romney. you could print person president of the united states. that is the 19th amendment story whether you realize it or not and we the people idea that began that in our lifetime you've got disenfranchisement and other things but we are not done yet. we can't know how to carry forward the project unless we understand so that brings me to this book. in the next five minutes we will start our conversation together.
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here's one of the reasons i believe the wall came here tod today. it's not just one of the two candidates. we haven't seen anyone with that profile of no government experience whatsoever and the only nominee that came close. that's just the political science way of saying you have a candidate that is distinctive in that way. it's all for the major federal branches of power are up for
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grabs and come january i think that he carries the senate and if he care if the senate he carries the supreme court that he feels therefore he wins the judiciary and it's almost impossible peterson. the house of representatives within and if hillary clinton becomes president, she isn't certain to carry the senate is likely to for similar reasons. she would have to win by five or six points fo for the two for tn come and we couldn't tal could y that is so if you're interestede interested, but it is possible.
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but that doesn't usually happen. as i cast my mind back, you have to go back in 1864 when all of the branches, house and senate judiciary and the presidency were up for grabs is play in that way. then we are going to play a game together. it goes back to 1860. he's never going to control the supreme court because it is dominated by previous democratic presidential appointees. it matters when you vote for lincoln or mcclellan.
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it matters because everything is in play. he wins because the land falls but the party keeps winning and so on and eventually they dominate the court, the democrats that when you have no chance of dominating the court, grover cleveland who doesn't even win consecutive terms, what roe wilson, and no democrat wins the majority after lincoln until fdr. this had been the dominant political party before.
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he keeps turning but by this time they overwhelmingly controlled the congress. so here i am in a particularly interesting election because everything is up for grabs on average and we the people are called upon for our input and we can't discharge that duty. you can't do any of that unless
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every generation reintroduces itself. there's a reason i try to rate this book today because i want you to share my passion for the constitution. each essay is short and it's for the "washington post" or "the wall street journal" or the atlantic or "time" magazine. there is a short op-ed about what i saw as they were developing over the last two decades as the most interesting constitutional questions around about all three of the branches of government, about rights and
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structure. let me give you the sense of the constitution issues as he lived through these cases and controversies just as i did and i can show you how to think constitutionally about these. i would like you to ask me a question about something that has arisen in the past few decades and if i'm lucky it will bet 500 or so. some of the things you will ask me about, there's some stuff in the book about and it could be a big flop so keep watching, c-span audience.
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i could say if you want more it's in the book. it's not in this book but here's other things you might want on that topic. you are here because you want to participate in the next chapter of the story. >> could you describe the ratification process in a little more detail was this a popular vote were a ratification? there's a book out on the ratification process as not that the democratic.
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they said the constitution is a kind of fast one. and i gave evidence for that in the book that i wrote in 2005 called the constitutional biography o of the first chapter that i returned to the theme very powerfullthis themevery pok and every state decided whether to vote for or against. it wasn't a california style referendum because it hadn't been invented yet and even if it had been how well your
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deliberate, so a smaller group of folks g but ordinary property qualifications that apply were waived or abolished. all adults male citizens. no property qualifications. those are not the ordinary rules in new york. that is a special idea for the one special that we are going to side will have especially broad
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free speech. no one is censored in the year. think about that even by modern standards. it's not just a metaphor. it was as broad a participation as was unimaginable at the time. a few good vote in new jersey that was faced out after the
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constitution but it's like that old saturday night live joke so it's not a great leap forward but the women are not demanding to them. this stuff in here about the voting rights in the 15th amendment and eventually culminating in the 19th that will be revolutionary. no state was found unless affirmatively agreed that they were in the blood and initially agreed with her line and rhode island have been said yes yet
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but on the women's suffrage thing i think it i of it as utty transformative. abigail adams you may remember she isn't asking at the time. she sends a an incrementa impree operative. she is asking for rules that would prevent husbands from beating their wives. that is what she's asking for so women's suffrage wasn't even in play but when it happens but think about abigail adams for a second because women didn't suddenly become smart in 1920. dolly madison is a political operative and so is mary todd
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lincoln and they have tied it. she could appeal to different group of voters and to the crusaders. that will give you bill and hillary, barack obama and michelle. so now there's two running mates. there's no way martha washington will ever be president of the united or abigail adams were dolly madison but yes it is possible hillary clinton could be or michelle obama. that was not unthinkable and that is all the story begins by letting more people vote than ever before in the founding but then the later chapters of the story. forward and you need to know not just the story of how it began
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that what happened between then and now so you can figure out how to write the next chapter. >> following up on that >> she has read the book but it's called a return to dynasty and i talk about all sorts of dynasties. and you see a. why does the president have to be 35-years-old and here's the answer who could have the recognition to get elected
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president at 33 and the answer is the famous son of a famous father. who is the prime minister of mid when they write that rule lacks the younger whose 21 when he is a member of parliament. they have the first same name and george washington is selected president in part because he has no children of his own and he says you can trust me because i have no children of my own, no sons to succeed me at least know the legitimate ones, james madison has no sons, john adams has a son and his name is q. and he becomes president of the united states and the framers were
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aware. part of the reason they were so freaked out about alexander hamilton, he was washington's adopted sons and washington took him under his wing, robin to washington's batman or something like that, and there's even a conspiracy theory. did you hear the rumor alexander hamilton is actually the illegitimate son of george washington. people say that's preposterous. washington was never -- actually, he was in the west indies but three years before hamilton was born. but there's no birth certifica certificate. [laughter]
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why is washington befriending this fellow he's freakishly smart but when he came to the united states he was 17, not 15. you know the rule that you don't know the reason behind it. it's not just that in 2,000, we had a. who was on the other side, al gore, whose father al gore senior was a leading political statesman and we talked about the governor. not just jack and robert and
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ted. we could talk about the current governor not just whose father was governor and spoke at the democratic national convention way back when, ted kennedy's niece, we could pick another and talk about arnold schwarzenegger who isn't just a movie star in his own right married to maria shriver his dad ran for the vice presidency and his uncle was president and his other uncle ran for president and he could keep going and talk about the governor of california, my friend jerry brown, yale law school class of 64 in hi 64 andd was governor, same name, although less name confusion because his father was passed and he goes by jerry but now they are dynasties and dynasti dynasties. bill and hillary isn't the same
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kind because it is within a generation. hillary clinton isn't related by birth or blood to build. they find each other. if chelsea would have run that would have been. and indeed the entire trump campaign seems quite dynastic because the main surrogates all have the last name trump whether it is donald junior and he inherits that wealth and is the same as political power but i am now a joyous hillary clinton and say she's actually they find each other. it's not that different than the political partnership thomas jefferson and james madison formed together. george washington with alexander
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hamilton. you have to add to that sex which complicates everything. is the dynasty be different look around the world. it's to achieve political power whether that is queen elizabeth or gandhi or three ministers in indonesia and the philippines and benazir bhutto in pakistan. now we are starting to think about some interesting things about the nature of political power and how the framers wanted to focus on dynasty and we are not. >> i am a studying economist and a part opart of the colin powell program.
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my question if you could clarify about the 14th amendment because from my standpoint it doesn't abolish slavery it just redistributed to the population. >> you are the second person in the last week has asked me about the fact 13th amendment and the exception that prohibits slavery that there is an exception for people duly convicted and you're the second person to ask me about that. i don't have anything in the book about that but i thought about it a lot and i have some other stuff. here's the question where did this exception come from, word d for word abolishes slavery and it comes from the northwest ordinance of 1787, word for word the ordinance of 1787.
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again the idea was there is no slavery except as a punishment for a crime. here's a related one i talk about. we have a prison population and they don't get to vote but they are counted for certain representation purposes in the districts and basically the prison guards that often reflect a different demographic in places like texas you have the prison industrial complex and they don't get to vote but their bodies were counted in the texas counties even though they might come from urban areas this is new york state also.
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it's the rural counties that are overwhelmingly white and half to two very differently froboot. frankly from the prison population or their families and some folks said this is like the new three fifths plot in which blacks were counted and if they added the political power of the slave masters who were voting but they themselves didn't vote and i do have some stuff on the three fifths clause but not so much frankly on whether we should have them at all so that is an excellent question. thank you. >> near 50 years after the voting rights act and there's many reports of voters are being restricted and getting access to
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vote. if i read the 14th amendment i see that it says the allocation of the representation represented members of congress to the state can be reduced if the voting rights are denied. is there any applicability to our time? >> you are absolutely astute noticing the word right to vote don't appear in the original constitution and why not come in part because the issues of race and slavery that do for the first time that appear in section one and section two and then that phrase is going to be repeated for more times in the constitution and the 15th of thh amendment and the 19th which says no race-based discrimination and the 19th amendment but also as the suffrage amendment and the 24th and 26.
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now first of all, there is a pattern here and we should read the constitution as a whole and understand what's going on. here's one thing going on. there's an interesting connection between the war and democracy. ben franklin said they should get to vote because they fought in the revolution. why did they get there right after the educated white women, people went to smith and radcliffe because then so is there fighting and bleeding and people like him are giving their lives and if you are old enough and fight you get to vote. that's one of the reasons women's suffrage was sent in the founding and in ancient greece
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yesterday 21 to vote, why because 21 is the age is the connection between defense and voting and women eventually will get the vote with the 19th amendment. they are supporting the measure on the front and in our lifetime to get the right to vote because if you are old enough to fight and die in vietnam you were old enough to vote whether we should be there in the first place. the founders didn't have the right and you heard me about how extraordinary that project was but that is only the beginning and now we have five different causes that affirm the right to vote reinforced by iconic civil rights and voting rights laws. he got his head cracked open for and i am deeply disappointed the
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supreme court guided the huge part of the iconic voting rights act of 1965 in the case that is discussed here and other places and the founders didn't have the right to vote but we did and we have thave to read them together holistically and oblong side of the iconic pieces of legislation and yes that is under assault today in various places and it's unfortunate. so many politicians do because high turnout tends to favor one party ended and i think you know which party i'm talking about. the voting rights act was passed and lyndon johnson but a lot of democrats voted against it and a lot of great republicans voted for it and understood they were
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the party of lincoln. that would be the republican party in section two of the 14th amendment and 15th and then again and again, and i keep waiting for that party to remember. if someone asks me about the electoral college i can connect up still further but i have been somewhat responsive. i'm bringing us closer. not long ago the fourth amendment would give every citizen in the country certain rights against unreasonable search and seizure into the
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unreasonable search and seizure ocher into this exclusionary rules that kicks out evidence however in june of this year it says the legal evidence is used against someone. i told you all this is an experiment so that isn't getting much but there is a lock on the voting rights and on the
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amendment may be more than any other topic. according to the constitution as i explain in greater detail there is not a right to a warrant or probable cause or individual suspicion every time you are intruded upon. think about metal detectors in airports. there is no warrant or probable cause or suspicion. the constitution doesn't say that, it says it is against unreasonable searches and seizures. we have to think what makes it unreasonable and think of the constitutional values behind the fourth amendment just like why we have a rule about
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35-years-old or what's behind these multiple provisions on the right to vote. privacy is one of the values because homes are private and protect people because that is a particularly intimate space but if it's only about privacy, we should have as few searches as possible. we don't, we search every one and i love it. you know why, because they are not just searching people who have dark skin. people who look arabic. misery loves company because there is an equality value also and if everyone sees, that's a little different and if they have to aggressive genitals and politically powerful people would start to complain because they are being intruded upon. where metal detect there is different though for one, everyone goes through it. it's not as intrusive as a patdown typically. it's pretty justified because
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people really did hijack planes and fly them into buildings. the same people are intruded upon every passenger is also a beneficiary because of the planes were safer, some people in the community who look a certain way are more intruded upon for the benefit of other people who don't get stopped and frisked at the same rate that would be benefited so now we are beginning to talk in interesting ways of what makes the search or seizure unreasonable if it is discriminatory or more intrusive than necessary in order when you go to the tsa, men never patdown women so i'm quite interested in peace. peace. if it is legislatively authorized into the same people intruded upon that might make it more reasonable, so i have several essays about how to think about the amendment. here's a very controversial thing.
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the exclusionary rule that if they get to toss out the evidence is completely and totally made up, not in the constitution, no cramer believes that it was in the constitution and no court in america for the first 100 years after and it's a bad idea. it frees the guilty and doesn't protect the innocent. those are fighting words to a lot of folks but i defended that proposition. my very dear friend whose agent is with us today says the following, no one is going to agree with all these ideas in the book. i couldn't disagree more with the professor's opposition to exclusionary rules that he makes you think so this is not -- if you want a book that is just going to reaffirm all of your prejudices, this probably is not
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for you. i have other things that haven't been asked about but i don't want to pollute the jury pool but i would say we need robust protections for innocent people, right now they are supposed to know if you are innocent but they want to hassle you because of your race or politics. they would go open season on you because they can do whatever they want but will not find any evidence. we need remedies for people to talk about what that might become a damaged actions, class actions, we need community-based policing involving the community review. do they look like the community or do they look like an alien occupying army because the civilians of primacy is a deep principle and it applies to a para- militarized police force today so it is a very great amendment that uses those words
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the people that came from the preamble and there's lots of good stuff about it. >> the first and only one is about the concept of the original intent. it seemed to me like it was a canard because the society when it was first formed was so different you didn't have the power of tv in the political campaign, food and drug etc., or the al gore decision we didn't have anything like that in the constitution. so since our society is so different, i think this original intent is just used that it would be impossible to have a society like the original constitution.
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>> yes, so i am more a defender of original intent dan is perhaps conventional. you might associate that with conservatives like antonin scalia or clarence thomas or ed meese or robert bork who was my teacher i remembered an essay about him, the greatest originalist textualists in modern supreme court history, the greatest justice was a liberal who always carried a copy with him. i usually have them in my back pocket here's one, two, three. there's more where they came from, and this fellow, here's another one. always carried a copy of the constitution with him, saving liberal, the first was named hugo lafayette and here's what
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the world looked like a year he came before the court. we were not taking seriously stuff that really is in here. 1936 degrees no protection but there is a lot. the bill of rights has never been applied against the state as a general proposition against the federal government. come on defendants don't get appointed to the council. there is organized, free expression is never one and jim crow prevailed across much of america. hugo black says wait a minute, it says = and it isn't equal and the freedom of speech is should mean the freedom of speech and to vote again and again and again and we should enforce that because people die for it and it says no state shall make or enforce any law or the
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privileges or the immunities and what are those, speech, assembly, the bill of rights should apply against the state government and that applies to poor people too and they might they might be innocent they cannot prevail unless they have a lawyer so this document says you have more rights than are listed but never fewer and so i want us to know what the original intent behind certain provisions aren't even if it doesn't bind us we would be foolish not to know why they put it in here because we might be repeating mistakes that they actually lead to fix. since they mentioned my friend before he said rights come from wrongs. mistakes are made.
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i wouldn't want you to be unaware of why they put stuff here. [inaudible] maybe this isn't a question about the constitution so i'd ask anyway, the use of the executive order i know that isn't in the constitution but it's an issue. they come up in the next two decades, so what about the impeachment of the attempted impeachment of clinton and
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johnson. i don't think that the orders because we need to go into details but one is abou about te dynasty, one is about oj and dna with lots of fourth amendment stuff but one is about the clinton impeachment. and at the bottom line on the clinton impeachment it was a partisan and that is the probl problem. i don't weigh in on that particularly that the constitution requires two thirds of the senate in order to convict. if you are going to undo the election you should undo it if the people that supported the political leaders basically want the person out. nixon actually on that standard
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was justifiably forced out because republicans decided what he did was gone. barry goldwater turned against him, howard baker. they believe his misdeeds rise from. democrats never agree whether rightly or wrongly democrat never agree to clinton's misdeeds were substandard and what i said is basically it is a misuse of constitutional power if you are doing certain things when actually you are never getting the other party. you need both parties to undo the national election. one take of a point in many so there's lots of you are interested. >> we have bee been anymore sine 2003. thousands of soldiers have died since 2003. the constitution provides that congress shall declare war but
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they've never declared war since 2003. what do you think about that? >> i discuss it in other books, not so much in this one. i do want to tell you one thing about that in all of american history we have had only a handful of declared war, the war of 1812, the mexican-american war, the spanish-american war, world war i, world war ii. i think that's it. many have been legislatively authorized month by the declarations of war but beginning wit with the clause fe more under john adams and so a president needs to have congressional support. only congress can fund an army that the way in which the president needs the support given 200 plus years of american
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history need not take the form of the declaration of war because that is and how they've done it for a long time going all the way back to john adams for example into the war against france, so it's a great question. i have some stuff on the war on terror in general but not so much on what they do say is if you are going to do all sorts of surveillance, congress has to be involved. they shouldn't come up with all sorts of principles that threaten unilaterally so there's lots on that especially the surveillance but i don't really weigh in about whether the congress has to do something that is called the declaration as opposed to the example the authorization of the use of military force. ..
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>> >> because the constitution does not mention that. and, by the way i want judge garland confirmed so when that oppose a certain type of duty that if they pass the bill the president has
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to act within 10 days and if he doesn't, the bill becomes a lot. and whenever he cents for the nominee after a certain number of days with they don't act the person is on the books but i want him confirmed and i think it is very unfortunate he has not been but not because of strictly speaking for of my republican friends are violating the constitution. and to make the best case for them but here is the best case of what the republicans are doing. yes barack obama 12012 but the republicans won in 2014 and took back the senate so anything the he might do to protect his vision on to the future basically on a platform but the other half of the republicans know n hell no.
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that is what the constituents sent us to do and that is what we are doing. i really trying to understand they 12012. >> guest: 2014 with the standoff so let the people decide to have a tie breaking election and if the republicans win them we will put somebody else in the vacancies the democrats win and they will have a freshman and. that is not preposterous that the presidential elections that direct the senatorial elections as a said ron earlier with all branches of government but it is designed so that people can pick so this election is our chance to weigh in on that.
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that we the people will hover referendum if you want garland you have to vote for the democratic senators and if you don't then you have to vote for donald trump and . i have one suggestion and i said listen this election is a referendum on the court. laugh and make its case. let his supporters make their case and the detractors say why he should not be on the court and use this as an opportunity to educate the american citizenry about the core and its future. if we do that and then we
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can confirm him and then want to or live along for another term. but to conclusion of a bite to see that immediately but i cannot tell you that. one final thing the issue that did come up not too long ago the ideological president the last year facing the senate nominated by the the party ronald reagan 1987 as conservative republican as a liberal democrat in face the opposition party the republicans and democrats could agree and who was the
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one person who sometimes votes republican and sometimes with democrats because some polls never cross the aisle? they are well served by kennedy but the president the republicans would like that because he is not like bernie sanders socialist. so i wish the republican senate had done for him with the democrats' senate led by joe biden and others did for kennedy. they didn't have wished they had eye talk lot about political polarization but what can you? go vote. [applause]
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[inaudible conversations]
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>> june 17, 20 - - 2015a21 year-old high-school dropout london mission to take his country back. ever since george zimmerman what data of the courthouse a free man after killing trade on martin racially people rise nation debated the verdict to understand the history of america trolling through the internet the council of conservative citizens. a product of the citizens council that terrorized black people and work hand in hand to divide the civil
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rights law. but with the racist beliefs system in the late through mid-1990s the group and boasted of having 34 members and the legislature with powerful allies including then senate majority leader mississippi governor haley barbour chair of the rnc and 37 other powerful politicians in the 21st century. the chair can $65,000 to the republican campaign fund including donations through 2016 presidential campaign.

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