open, and yet, from here, you could respond, maybe even better. to any activity or to relational conversation, and often in a retreat i will have people from here start to do a dialogue with each other and feel what's that is like to start including language. . .

what you think about that? >> actually it made me think also about one of the techniques we talked about a lot in this new book is actually not be something very similar to what you're saying at the end which is we certainly recognize that if compassion and the ability to interact and communicate with other people is so crucial for our brains in terms of being healthy and crucial for our overall well-being when the be wonderful to bec'x able to reay take that kind of a state and take that kind of a practice and integrate into a dialogue? son conjunction with michael author we have been developing something we call compassion and communication or reduce something very similar to that but then it do began to bring people into a dialogue with each other.

it's obviously sometimes difficult in the beginning. we've had some wonderful experiences doing it both and workshops settings where one-on-one with individuals, but the idea is two old smiling get to that point where this is the way that you talk to people. you actually do listen and you actually expect them to listen to you and you don't go on and on and on about the different things your thinking and realize they won't be able to listen to all that so it's a wonderful way -- and one of the other things essential two this is that by doing it in a meditative and type of setting it lowers the kind of responses that we sometimes have. unsure almost all of you have had the experience whether it is a spouse or a member or friend or you get into an argument and that at some point you're really not listening to each other anymore because all of your emotions takeover. so if you can find a way and talk about this in the technique

to get back to a more,, open, compassionate way of looking at things and getting into that dialogue with that individual then when you hear them say something that may be initially he would just react to you say, okay, i hear you paragon now i'm going to explain to you my perspective on that and go from there. so i think this is one of the real exciting places that we can go in the future and you heard a little of this year today which is we can take this information, the practical information, the scientific side of this information and say what are the techniques that we can start to use and develop in ways that really help us to optimize the derrin aspects of who we are in utilize in a way that can be beneficial to ourselves and people around us so that to me is one of the most exciting areas of research material, but really the outcome of what this research can do.

i think it still ultimately a very crucial to be able to bring together not just this objective data that we can try to get on a brain scan or some other study but also it's so critical for everyone including the scientists, including all of you out there to really have an experience of what this kind of practices and ideas feel light and to monitor them and understand them and reflect on them. again, i think the other piece of this which may be in the question and answer time we can talk about more, is to still watch out for that negative sign it and the battle of we were talking about at the beginning because even when we were having positive experiences if there are so positive that have trouble learning how to incorporate them into their ways of thinking about things this can be a great struggle with them. if you are really struggling that can be very frustrating and anxiety provoking, can become a

pressing and that trying to understand where these experiences come from the is a negative ones, perhaps the will help us to learn better ways of dealing with them and helping other people work through them and that to me as one of the most important things that come out of all this kind of work. >> i will say one more thing that we can open it up just a follow-up is that it seems a lot about the buddhist perspective on all to the relief of suffering is a shift from this kind of smaller identity, small self to no self or no self sell which is a bigger sense of self. kind of like this openness. on that openness, from a openness and loving awareness, identity the -- states or the naughts or the shadows and can be met and actually what they do is start to almost untie because they are not being met by a small sense of self and ego and

a new defense system, that that opens up into a more loving compassionate awareness. so the experience of what we have repressed and kept down that starts to rise up one and then be included because a shift to this kind of open nature and actually kind of a like a falling out. like your hand is in the snow and you feel like there's some kind of pain but the pain is not threatening pain, the pain is kind of a growing pain and then that energy is return to the full system so that you're whole being has done more aliveness and there is a joy that is natural. so it's really quite amazing to start with this kind of shift, this openness, and then to do some of the work we have been trying to do from a smaller sense of self. it almost naturally when they

talk about start deliberating on its own, starts to celebrate. and not on time because the identity is shifted to this open state which is obviously not just imagination which is part of what a brain scan shows, but actually from the body quality of your being, of your natural self. >> dr. andrew newberg is the director of center for spirituality of the mind an associate professor in the radiology department at the university of pennsylvania. he co-wrote "how god changes your brain" with mark robert altman, co-author of why god won't go away, born to believe and the mythical nine. for more information on the authors go to dr. andrew newberg.com and marked robert waldman.com. the summer booktv is asking, what are you reading?

>> item senator pardon. this summer i'm going to be reading a book am looking for two. three cups of tea which is written about a person who is an outdoorsman, who is helped and not a climbing by the people of afghanistan and pakistan, there was a girl's school in the community he started. i am looking for a two reading that book this summer. >> for more summer reading lists of other program information visit our web site at booktv.org >> the dirty dozen tells the story of 12 little known supreme court cases that alter the course of american history. the authors argue that most of these rulings resulted in expansions of the role of federal government at the expense of individual rights. the program hosted by the

harvard club in new york city is 15 minutes. >> thank you so much, and thanks to the men had institute for hosting us tonight. for over 25 years the man had institute has produced some of the most influential and insight will research in the nation and it's an honor to be in such form tonight. without mention as we approach the presidential election judicial nominations and the fate of the supreme court become an overriding concern to people on both left and right. with the candidates who respond to that concern by a spouse ill-defined concept that will guide them and appoint people to the supreme court concepts like compassion, or judicial restraint. and what you'll rarely here is a discussion about the supreme court's systemic and negative impact on our governing institutions and our rights.

robert levy and i decided to write the "dirty dozen" to tell the story, how 12 cases decided by the supreme court since the new deal how radically transform this country and change the course of american history. away from a limited government and toward unbridled government authority. because some of these cases are decided decades ago and some of them have involved other obscure racks, is easy to overlook just how radically they transform our country. we will address the proper role of the court and what happens when the cord abandons that role. as it has done in each of the "the dirty dozen". whether it is a political speech, and economic liberty, property rights, welfare, racial preferences, the sanctity of contract or imprisonment without charge bamenda supreme court has behaved in a way that would misapply, shock and outrage are

planning on others. alexander hamilton wrote in federal 78 that the judiciary was the weakest branch of government, that it would be the least dangerous to the political rights that we all should enjoy. similarly james madison wrote in federalist 45 that the constitution grants than federal government powers that are few and the mind. it only that were so. today there are 319 the executive agencies and independent agencies at a barrel level, 319. every year to year after year you will find 70,000 pages in the federal register setting forth a new and proposed rules and regulations. there are now over 4,000 federal statutory crimes.

and summer between 10,000 and 300,000 regulations that have criminal sanctions attached to them. the mayor ambiguity of that number should give you some sense of how rampant the problem has become. with that is not the way america west and to operate. from the house that this was to be a government of limited power with maximum freedom for the individual. instead we have been afflicted by a vast enlargement of lateral authority cannot condone it, indeed, enabled by the supreme court. the constitution enshrines the relationship between an individual and the state. the of federal government has limited, separated and enumerated powers. the power is not granted to the federal government by the constitution in does not have authority to act. individuals, on the other hand, in july natural rights, some of which are recognized in the bill

of rights. the rest of which are retained by the people. what this means is as prof. randy barnett at georgetown university has described the constitution it is animated by a resumption of liberty. and that to be the starting point for any judicial inquiry. it is no the bunning fathers recognized in the constitution may need to be changed from time to time as public circumstances dictate. and they put in the constitution in process by which that would occur involving the congress and the state's but it is an arduous process of deliberately arduous. in fact, since the bill of rights was added to the constitution in 1791 we had 17 amendments, but profound changes have occurred in other ways. this supreme court has accomplished through the back door what congress and the states did not accomplish or could not accomplished through

the amendment process and in doing so it has effectively amended the constitution. the words remain the same if you look in the constitution today to see them just as the founders wrote them, but their meaning has been profoundly and radically changed. this results in a ratchet effect that over time means there is increasing government authority in agency an issue after issue peridot so much so that today if you go into court and argue constitutional a matter to limit current authority will find that instead of a presumption of liberty the routine assumption on the part of the courts is a presumption in favor of government authority. perhaps have the right procedures involve some of the decisions in "the dirty dozen" would have been amended to the constitution of properly but perhaps not -- the thing is we will never know. what we do know is supreme court

justices, unelected it supreme court justices with lifetime tenure have basically rewritten the constitution without input from or accountability to the people of the united states. you might ask yourself, it is already out there and for language, how can this language been ignored? well, there are a couple of ways this can happen. on the one hand, you have a theory of constitutional theory is that is popular among liberals, if you called a living constitution terry. it is a constitutional analysis theory espoused by justice stephen brier that use it as a valuable document that should be sufficiently flexible and adaptable as needed. and as justice pryor says adopted so that a sensitive laws and institutions can be changed or can be adapted to reflect social, economic and technological changes. pretty much everything.

that is an open invitation to unlimited judicial policy making. now conservatives on either hand can escape their share of the blame. while they will recognize some constitutional constraints on federal authority in their not willing to do that when it comes to criminal law or balance and individual liberties with national security interests or regulations that affect prior moral and our social behavior and because of excess of the warren court and because of the liberal groups' ability to advance their agenda is the the court system conservatives have increasingly come too few cars with suspicion at times and our right, steve. their touchdown now is a judicial restraint by judicial restraint is an ambiguous concept but basically has come to mean is that courts should defer more accurately rubberstamp and decisions of the

executive and legislative branch. conservatives are also reluctant to overturn it wrongly decided president. what that means is the combined with the deference and the allegiance to precedents, conservatives are willing to leave in place in the very conditions the regulatory state of a rail against. enact judicial restraint has mutated into judicial passivism that removes the courts of actively on the system of checks and balances created by the founders. with this means really is that liberals and conservatives from opposite ends of the political spectrum under opposing it rationales have worked to the same and. expanded government power. now some may respond that the proper policy making and that the way we consider recourse is through the legislatures and elected representatives. well, sadly that ignores the

realities of today's governing institutions. governing institutions created by the supreme court decisions we describe. too often today the gerrymandering and campaign finance laws elected representatives are insulated from the will of their constituents and increasingly unelected, unaccountable, boards, agencies and commissions that import policies that affect all of us and the ability of special interest groups to capture regulatory agencies and legislative bodies has been so well documented that the dispute is retained. what that means it is that increasingly the protection of our rights is dependent upon it the self restraint of government institutions and that is a commodity that is chronically short supply. well, when the legislative branch or the executive branch exceed is constitutionally

integrated powers words have the authority, indeed, they have the duty to declare that action unconstitutional because without judicially recognize constitutional constraints person sentenced to leave inevitably to expanded federal powers. that has what happened as a result of each of the dirty dozen cases where the commerce clause, the due process clause, the contracts clause or the general welfare costs keep provisions of the constitution as a result of the decisions in the dirty dozen, the debate in each of these areas today is whether there is any real limit on garment authority. what judges have stopped judges and they have increasingly umbrella

authorities to the other branches which means for those of us who are devoted to liberty business as usual should be unacceptable. which means that we have really two courses of action available to us. we can amend the constitution, we can go back to all the provisions the court has gutted and put parenthetical after and say it this time we really mean it. and recall upon the courts, we call upon the courts to reinstate constitutional protections that it has been eviscerated. either way courts must play a role in this endeavor. judicial activism and abdication of proper role of the courts has read and write out of the constitution. only principled and consistent judicial engagement will rehabilitate those rights. this, of course, will not happen overnight, the decisions and the institutions that arose from them took decades to run cold.

but the magnitude of the task in itself is a call to action. and we can take heart from the fact that three weeks ago the court show that it can be done. in upholding the individual right to bear arms the court took care of one of the "the dirty dozen" and consign it to the dustbin of history. each of the remaining cases will deserves the share of the similar state. the sooner the better. [laughter] and michael author, robert levy. [applause] >> it is great to be with you, to tell you about the cases. of course, i'm not going to have time to elaborate on each of the 12 cases but i will tell you what they are and identify them and may be given a sentence or two about each, but before i do that i want to supplement with a few words what chip has said and

specifically comment on the liberals and conservatives and how their views of the constitution different the libertarian and abuse by chip and by me and our colleagues at the cannon -- care institutions and the city of justice. on not talking about the political party but libertarians and as a political philosophy focused on a free-market, individual liberties and most of all strictly limited government so here's the primer -- the structure of our federal system i think is best captured by the funneled to provisions of the bill of rights. the ninth and tenth amendments. the tenth amendment tells the federal government can only as this has the powers enumerated in the constitution and goes on to say the powers that are not enumerated and not delegate and specifically to that of federal government are reserved to the states and depending on state law reserve to people. conservatives and libertarians generally agree on the very tightly constrained view of federal government power but there are too i think important

exceptions -- one of which is that many conservatives but not libertarians are willing to federalize a significant amount of law on both the criminal law signed. purvis apple is are futile war on drugs, and the civil law side if you look at congress's everett's to involve itself and for reform which has been traditionally a state government auction. or for that matter the terry schaivo case with a push illustrational and have had the federal courts dictate to the state of florida how it should manage its decisions regarding one life ins. the second area of that the libertarians and conservatives differ in the powers area is the tendency of a conservative but again not libertarians to be willing to aggrandizes and to the executive branch much power specifically the national securities area. the libertarians remind the conservative friends that too much unchecked authority in the hands of the executive branch

friends at the notion of separation of powers which has been a cornerstone of our constitution for two 1/4 centuries. i mentioned to both the tenth and ninth amendments. the ninth dozen talk about powers, it talks about rights and it is exactly the opposite of the tenth amendment were as the tenth says of the powers other the government doesn't have and the ninth man and says merely because i have listed the power the ride and the constitution does not mean that individuals have a because individuals have a loss of on enumerated rights that they possess even before the government was formed even before the constitution was written. these are rights that came down to us from our natural law heritage and our common law tradition. these rights are the so-called negative rights, rights that don't oppose any affirmative obligations on other party is like the right to the pursuit of happiness. i can do it and i don't need your help, and simply do not to

exercise forceful chronic against me. that differs guys substantially on the so-called positive rights which some people called entitlements which to impose affirmative obligations on other people. if i had a right to happiness not to pursuit of happiness but happiness itself that would be a positive right because at a minimum it would impose an obligation on you not to do anything that would make me unhappy. banaa the positive rise in that we all know about and that we hear so often in the news or other rights to things like a minimum wage or welfare, obviously rights that to impose affirmative obligations on others. these positive trends are the foundation of the liberal view, about the proper role of government, but we are now hearing from liberals that government, big government can't be trusted. especially in areas involving civil liberties but one wonders where does the left standing? why not this healthy distrust of government extended to areas

that control of our retirement system for our welfare system or public school system regulations that seem to control everything from the shape of a naval warship to ergonomics of an office chair. why does the left can seem to see past the defense and justice department when it comes to monitor about excessive powers of government. two agencies which are charged indisputably legitimate functions protecting us from creditors so innocent resolve this foundation what is the proper role of government that the constitution can be fair to prisons the tenth amendment which is the ninth amendment libertarians to the powers of government where nearly and the rights of individuals and very broadly and that was in our view precisely the vision of the framers so that is a broad background. turning to the dirty dozen on not going to examine each case

but i will mention what the cases are and perhaps a sentence about them. we identified these by serving are like-minded colleagues about 74 and asked them to name the cases, new deal and later that had the most destructive of fact on public policy either by extending geren powers beyond those constitutionally authorized or by failing to vindicate rights that should have been a constitutionally protected and never regretted by although not bound by the cases selected by our colleagues so here are the 12 cases in no particular order, that is there are not ranked all i will start with the rights of individuals cases. at first is the general welfare clause, the case was a battle between madison and hamilton turned hamilton said the powers were enumerated in the constitution for congress not the only, there is another power, the power to tax and spend and promote the general

welfare. madison said you got it wrong, mr. hamilton -- the enumerated powers are all there is and the general welfare clause is a further constraints on government. means that government in exercising its enumerated powers may only do so in a manner that benefits the general welfare now special interest or what mr. matheson called sanctions. regrettably and the social security system master madison lost and that congress -- contest and mr. hamilton won and that, of course, opened the floodgates for which the redistributive state was ready to take money from some and give to others without any constitutional constraints. second case, commerce clause and he mentioned that the court in a store near case. congress indisputably has the power enumerated to regulate interstate commerce and the question is can congress regulate activities that are not interested in not commerce still under the commerce clause.

and the course of a guess this was a case where the party involved grew crops on his own firm for his own consumption by him and his farm animals. he did not buy the crop anywhere. nsl the crops anywhere. it was all within one state. the federal government's and we can tell you how much you can produce and mr. worker said it under what authority? the commerce clause, how could it possibly affect commerce, this is an albino selling and the federal caris said you are out there producing you're own crops and if you were producing a crop to have to buy them. it your consuming what it is to produce and if you were consuming you have extra crops looked over to sell. by not buying and by not selling you are affecting the price of these commodities and therefore you are affecting interstate commerce and we can regulate too. that, of course, open the doors to the regulatory state the

power of congress to regulate anything and everything. the third case contract laws, home building and loan verses clydesdale. in the constitution is quite clear and says that as these words are crystal i don't know what is, no state can compare contrast. the supreme court for whatever reason did not find that clear and at the minnesota statutes was held it and see if this sounds familiar, postponed the mortgage payments for financially troubled homeowners. [laughter] never mind that the contrary. and, of course, we're seeing a replay of that today. as creditors are forced to waive foreclosures on subprime mortgages. fourth case, the non delegation doctrine appear in your heard to mention how many administrative agencies, there are over three and an alphabet agencies that exercise lawmaking power with the constitution says all this in a power is vested in congress so how is that congress can delegate this power to these

other agencies? use the command of the law as passed by congress and we don't like it we can throw the bums out of the laws passed by congress and nobody knows what it means and the powers delegated to and did mr. agency to flush out the details and the voters can do a thing about it because the their unelected bureaucrats. the courts apparently are not going to do anything about it and the case that we looked at was whitman purses american trucking, a 2001 case. if case, another with current implications, first amendment. campaign finance, mcconnell versus federal election commission. there is this quixotic idea that the government seems to have the money and elections should not mix and under, that notion the court has curtailed our most basic is press the right and that is to support or to criticize the candidates that are running for office and the absurd justification of that is

not to eliminate corruption because there are plenty of laws on the books until of fraud and bribery but rather to eliminate the appearance of corruption about which no one knows the meaning. the sixth case, second amendment, keep and bear arms. of course, of we have written this book a couple of weeks later we would have been able to exclude this case so it is one down, 11 to go u.s. sources miller, 1939. seven decades ago the supreme court established the legal regime under which appellate courts have ruled over and over again at the second amendment is of securing individual rights but only that can be exercised in the context of malicious service. three weeks ago the court had a chance to revisit that in a case called district of columbia versus heller for i was pleased to be the counsel for mr. heller and that was a resounding victory for the second amendment and for the individual right to keep and bear arms. the seventh case, due process, the civil liberties versus

national security. i'm sure you've all been familiar with the case in 1944 and of a detriment of japanese americans. guarantees liberty and fair treatment under people protection and that is supposed to be the rule of law but apparently that can be waived during wartime. even if american citizens are arrested and incarcerated without charge indefinitely. in this case we're talking about 120,000 japanese, 70,000 of them u.s. citizens. 18,000 or decorated for valor fighting in world war ii, many of those who volunteered for service from within a the prisons in which they were incarcerated. the eighth case, also a due process case, the faxes are quite extraordinary. it is not bad enough if you are married your husband takes your car that too all without your permission without giving your knowledge and picks up a prostitute and have sexual

intercourse in the backseat of the car. that is not bad enough. the government says the car can be seized because it facilitated in the commission of a crime. and the innocent owner does not apply 752 did not know, did not consent, you own a car does not matter. this car facilitated the crime, the federal laws haven't changed somewhat and many of the state's without any innocent owner defense. the ninth case, and the institute of it justice litigating and i'm sure you're familiar with it, the most recent of the cases that recovered. suppose you like suzanne kilo live in the house to shares for many years and along comes a private developer and tells local government in that he can't create a few more jobs and increase the tax base of only your home will be turned over to him and that he says is a public use. well, we think a public use as

being arose and military bases and hospitals and the like. but the courts said it no, we're not talk about public use, anything that confers a public benefit and after all higher taxes and more jobs than to public benefit so that you think your home is safe from the government bulldozer, think again, kilos is otherwise in the good news is as a result of external reference of the institute for justice 42 states have now passed state laws and constitutional provisions that to some extent for another half trunk to the effect of the keogh case. the tenth case is also a takings case but in this case not physical takings but rather regulatory takings. penn central vs nil york. the rule is the value of your property plummets to government regulation. you won't be compensated unless the regulations go too far. how far is too far? nobody seems to know this of all the u.s. supreme court apparently penn central's loss

of $150 million because they are precluded from constructing something on top of their own property in midtown manhattan, that $150 million loss was not far enough for them to be compensated monetarily. the 11th case, the and enumerated right to earn an honest living and economic liberty. does that include such things as the right to contract own property, former on business without fear of unnecessary government impediments? noaa does not appear to the court has decided that our rights are going to be bifurcated and will vigorously protect some rights like those that are espresso set out in the bill of rights by the protection of the insular minorities. like the right to vote, but it will not protect contract property and the right to form you're own business and all of this was done with a single footnote in the 1938 case united states forces caroline products. and finally the 12th case, again the fifth and fourth

amendment equal protection, racial prison. a 2003 case. in the constitution says no racial discrimination that is no racial preferences either, that is the rule. on less you happen to be is a university chemist a law school in new use race as a mere plus factor as part of a holistic scheme that is designed to attain diversity. of course, we're talking about every city by skin pigmentation, not talking about diversity on a point because if you examine the university of michigan law faculty will not find a diversity of viewpoints. [laughter] but if your interest is obtaining better city by skin pigmentation that somehow racial preferences are no longer discriminatory. so those are the 12 worst cases of an abbreviated version and a free society we should not have to ask for government permission to participate in the election like in mcconnell verses at vc

or own a gun like in the united states vs. miller are pursued honest occupation like in the carolina case and the government should not be authorized to take somebody's home to turn it over to another private party like they did in the key . those abuses of power can be minimized and only if the courts ensure that the legislative and as an apprentice with respect to the constitutional constraints imposed on them by the constitution and regrettably the supreme court has often been derelict in fulfilling that obligation and that is the story of "the dirty dozen". thanks very much. [applause] >> we are happy to take questions. i don't know how much time we have, could you tell us? >> michael.

>> michael meyer, executive director of the rights coalition. i want to ask you made reference to the excesses' of of the warren court and i thought that the warren court for incorporating the 42 demint in applying the bill of rights to the states are in effect trying to increase liberty for individuals and under incremental involvement with segregation by race so i wonder which demand and the excesses of the war court like the reputation to increase the resolution? >> i was thinking -- i was speaking to the perceived axises that conservatives in view in the warren court when it comes to things like increasing access to the course by spending the notion of standing, of interpreting laws very broadly and environmental grounds and in the realm of activists ever to achieve social changes to the

courts in a way that conservatives frankly found either in of corporate in their view of the constitution or threatening. and that led to a very widespread it reaction against the war record and conservative circles. >> let me add one thing to that because incorporation came up. we do you in corporation as a good paying and to the extent that the warren court was responsible for that doctrine i personally approve that. just to clarify for the audience when it is not practicing attorneys. until 1861 the 14 the man was ratified the bill of rights was only to apply to the federal government so technically if you were a state you could pass laws that you could and criticized the governor and that would not violate the first amendment of the u.s. constitution because it didn't apply to the states. my have violated some state constitution but it didn't violate the federal constitution. we found out over the first hundred or so years of existence

the this is can be every bit -- slavery being the obvious case, and we fought a civil war about that and after that we had a series of them which was the 14th. the 14th amendment became the vehicle by which we inc. the bill of rights and made to the bill of rights actable against the state. not quite all the bill of rights because we haven't dealt with the second amendment yet and that's going to be an issue that comes up in the aftermath of the heller case. but a corporation is a good thing. the only reservation i personally would have that incorporation is the means used was the due process clause of the 14th amendment, the means that ought to have been used as privileges or a man in a cause of the offer to the man. to process dealing with process and not substance. we do need a provision that incorporates the bill of rights and other rights including economically race against the states and the privileges or

immunities clause would be that provision at. to the extent that the current court can copy the warren court in doing that we applaud that. >> one i have gone through a kilo in the book and i'm absolutely fascinated. that you for writing it, but here's a comes to mind. his team's backcourt in the last 40 years has found a words in the constitution with they don't exist and where the words do exist and chose to ignore them so how do you reconcile those two impulses by the court over a long time such as one court? >> well, the key is a good example of how the court and take expressed words and the constitution and transform them completely by the way that they redefine them. and as bob mentioned, the provision, the operative

provision in the kilo case was the concept of public use, private property cannot be taken without just compensation. the supreme court about 50 years ago change the notion of public used to something they call public purpose. that may seem innocuous until you realize what that it was osher in unchecked discretion on the part of local governments to define what constitutes a public purpose and that went from clearing slums to clearing what they call not so blighted areas so the house in her neighborhood which was fine is saying what was submitted to do something different we deemed more appropriate. as long as the court the debate over judicial nominations is guided by just reflexive opposition to a particular issue or particular case you're going to have ad hoc judicial decision making by having the nomination process focused on me is essential for the nominees to be able to articulate and then the

consistent and coherent judicial philosophy, that will be more fully informed about what the consequences of the court will be and hopefully have a chance to put on the court people that reflect a principled and consistent view of the constitution like we described in the "the dirty dozen" at. >> [inaudible] in roe vs. wade there was a certain assumption that people have a right to decide to do what they wanted to do in that example. but in the example of a kilo it is the opposite where they choose to give deference to the power of the state and yet this contradiction has occurred it now for 50 years for many different chords, then a different leadership in the court and i don't see anything that makes it makes sense. >> well, that is actually very good observation and doesn't

make sense. there isn't a coherent philosophy being expressed an all too often the will of a particular justice and particular passion about one issue or who has the opportunity to write one decision that is modified by others needed to join the dissent -- decision, but bob can talk about roe vs. wade and we do have after that address is why we did not put it in there as one of "the dirty dozen" but you can't fully recognize. which you can see is the agenda that is pretty unrelenting and uninterrupted over the last 50 years which we describe in the book which is the courts are increasingly ready to cede authority to the legislative and executive branches. >> i would like to add this cannot about roe but a summit was to ask a question i'll be happy to talk about that. but about the resumption of liberty and its opposite which is a resumption of constitutionality.

the courts have tended to have a presumption of constitutionality, that is the presumed the statutes passed by the legislature are constitutional and the rep. -- rubber stamp for those joining the rest of the legislature. the assumption honors the primer that was established in the dining generation and that is to say that we are assumed to be free to do what ever we wish as long as it does not been paid this similar rights of others o do as they wished. and the government chooses to compromise that liberty the government has the burden of proof. there is a presumption we have raised in government to justify its regulations. we have argued that this system applied by the courts in determining whether or not regulations will be sustained or return, the so-called two-tiered scrutiny, that is for some regulations are rubberstamp and other regulations are given the rigorous scrutiny. that that system is incoherent

and one case in which the evidence itself is incoherent in the case which by the way honorable mention cases, this honorable mention case in "the dirty dozen", for those that did not quite make the top, we have a category called the this honorable mention it in the case was a race purses ashcroft about the use of marijuana in california. the lady wanted to relieve pain and she took marijuana in california or in is perfectly legal under the doctor's prescription and in accordance with state law. she grew at all herself and then she consumed all herself and again it building on the supreme court decision that said the government can step in and of the drug enforcement and ragged as in a state commerce. we know it is not interstate commerce but nonetheless it was upheld the regulation of interstate commerce and then miss reyes said you were violating my right to live because i want to preserve my

life. the courts will rigorously scrutinize violations of your right to live because that is considered to be a fundamental liberty. fundamental liberties are those in the court's language implicit in the concept of ordered liberty or deeply rooted in our nation's history and contented culture. certainly the right to life is so you think this race would able to vindicate that right as a right to life. but no, the court said this is not about the ride for life, this is about the use of medical marijuana and that is not implicit in the concept of order to liberty and not deeply ingrained in our nation's culture and traditions and therefore not going to assume that you have that right and we are going to make you prove that the government prove that it can regulate, that you prove the government can regulate and a christmas race lost that case. everything hinges on the definition of the right. if you define the ride as the right to life which she is

trying to preserve her own life it is rigorous scrutiny and ehud defined as of the right to smoke medical marijuana it gets a rubber stamp. this is an incoherent doctrine and one which we are trying very hard to have modified by the court. >> you're "the dirty dozen" is concerned mostly with cases that impede authority to the legislative and executive branches, are you at all concerned with the supreme court decisions that seem to breed of 30 to the judicial branch? i am thinking in particular of the recent suspension clause issues and its a good supreme court extended habeas corpus rights to noncombatant enemy aliens. >> well, i think a case has been misrepresented in the press and to respect. first, it has been

misrepresented as suggesting that his rights are now extended to all aliens, captured on battlefields, everywhere in the four corners of the earth. that is not true. with the court did was, at a very narrow exception for guantanamo. because it is de facto even if not under the complete control of the united states government so this is a very narrow exception to the rule that alienate enemy combatants did not have habeas rights cannot not apprehended or detained in the united states. in this case they are detained in what amounts to the united states, that is guantanamo. the other area that i think has been misrepresented in the media is the suggestion that guantanamo decision is going to turn the federal courts into the quasi criminal investigations of terrace and we're going to have around the rights of all sorts of evidentiary nonsense going on with the terms of the course into a circus and that is not

what he this is about your he muses about a threshold determination as to whether these folks are the enemy combatants and when you are detain you are one of three things either an on command in which republics innocent not to be released or you are a lawful conduct and which we call p.o.w.'s in which case you can be interrogated only for a name, rank and serial number and must be repatriated as soon as hostilities are over. or you are, indeed, an unlawful combatant and then have very few rights case simply have to be treated humanely. ordinarily and at the geneva conventions and the department of defense regulations there is a screening tribunals convened to make that threshold determination. are these people enemy combatants or are they p.o.w.'s? president bush decided that he would declare unilaterally that everybody at guantanamo was an enemy combatants and was not entitled two any rights that p.o.w.'s would have much less the rights to be released that

in non-combat would have said the president in a good sense brought this problem on himself by not having the screening tribunals that are required by the geneva convention and that are required by department of as regulations. ultimately he brought the supreme court in, the supreme court said recently cannot have for six years people being incarcerated under pretty bad conditions not charged with any crimes, unilaterally declared to be enemy combatants with no opportunity whatsoever to contest that in violation of the geneva conventions so that is the nature of the guantanamo decision and frankly i think was the right decision. >> it is not too early to gauge this, what has been in the

reaction to your book in the mainstream media and by organizations which presumed to be defenders of the freedom? but we might quibble with such claims in the case of certain organizations. in other words, by those who aren't necessarily of like minds as most of us here. >> well, we have been gratified with a reception thus far both in the reviews received and the commentary we have gone on it. i will be debating at the american constitutional law society and a couple of weeks and what will be viewed i think quite interestingly as a skeptical audience of law students and law professors who stick with a living constitution do. i think that will be interesting and informative, but even there what i think we have seen has been respectful treatment of the fact that when we talk about it is pretty undeniable. the question of whether or not you think is a good thing or bad thing.

>> [inaudible] >> yes. >> [inaudible] >> no, it is not just another book on our regionalism and to the contrary this is a book that should have something to speak to liberals, conservatives, socialists, libertarians. what we document is something that all americans should be concerned about and that is the ability of government increasingly to erode and constrain the precious liberties we should all enjoy. yes, sir. >> hi, i gather that you are legally and sociologically waned, but can you speculate on any region -- reason why the government tends to clear reason rather than government? >> well, during the new deal

there was what folks have called the shift in time to save nine when roosevelt wanted to increase the number to 15 in order to get the court which of the time was dragging down the new deal programs to get into a pull them. the court transform itself from an opponent of the new deal to interpret the constitution to one that not only rubber-stamp new deal programs but did so in a way as bob suggested fundamentally transform the nature of constitutional analysis from that point on and talk about economic liberty to illustrate for a moment. the case that bob described made so that today there's a lot of economic regulation in this country and you want to know why, it doesn't make any sense and it seems to proliferate. turns out that today this legal standard by which courts review all economic regulation is this: any economic regulation will be

upheld if there is any reasonably conceivable set of facts that can be determined to uphold -- justify that law even if those facts did not exist when the law was enacted or if they did exist if the legislature never considered them the court can make it up at the time the law is challenged. even in a speculative play. that is why all these economic regulations are basically rubber stamped by the courts and direct result of that caroline provinces as we described in the book. >> another reason i think that there is this tendency toward favoring expansion of government is in the ascendancy of a living constitution theory. much to her dismay. and that has had an interesting byproduct and that is poison judicial confirmation process and the reason it has done so is because of you believe in a living constitution, that is a valuable constitution that can be adapted to changing societal

and economic and technological circumstances, basically the written constitution doesn't mean a thing. and becomes jurisprudence becomes just politics by another name and so it is no wonder the congress who becomes and the public becomes extremely interested in the political viewpoints, the public policy philosophy of the nominees because after all if you can adapt to this constitution and band is contours' so that they can be flexibly applied it to changing circumstances regardless of what the text says, if there is no anger in the text and the purpose of the structure and history of the constitution come if it is all a matter of personal preference that is with the living constitution is all about, then the nomination process becomes critical. we need to know the personal preferences of the nominees. on the other hand, if we had this anchor, text really based, if there were objective standards that guide us through proper constitutional

interpretation then you wouldn't see some of these questions directed at ascertaining the underlying policy views of judges who after all are now supposed to be expressing policy, they are supposed to be determining the constitutionality of laws. >> i'm gary. if you are advising that next president as to who to nominate for a couple of vacancies of the supreme court, give us a couple of names that would come to mind? >> i would say to miller. [laughter] >> or robert levy. well, you know, it is difficult. it is difficult because the new tendency post board, post thomas, is for the justices the would-be justices to try as best they can to hide from us what it is a truly believe in and so we

have people like justice -- justice souter being elevated to the court with no paper trail and can even determine what it is at his judicial philosophy is until after the fact, after the fact many of us are very much surprised by what we find out. and so i don't know that there are many judges that i would necessarily sadie's of the right times. if i had to think of some i would say that the fourth circuit would wake who is no longer there would have been a good supreme court justice, a former chief judge of the d.c. circuit to a clerk for by the way would have been an excellent supreme court justice. i think larry silverman who wrote the opinion in heller would have been an excellent supreme court justice. danny boggs on the sixth circuit would be a fine supreme court justice. i am sure there are a number of other names that don't occur to