western standards of living, per-capita income basis, we should not expect to see those levels of economic growth or rates of economic growth if we believe what you just said. i don't think it'll. the reason i wrote my book is because i really believe that a lot of america does not even understand what the problems are in the economy. you see a lot on television and in the press about deficits and massive debts, but i don't think as a practical initiative people understand that this is really a fight for the soul of america. not only america, but the world. 9 billion people on the planet in 2015. we absolutely need to get it right. we need america to help solve some of the big problems around resources, lack of water and land and issues around energy. the united states is great in solving these types of problems, but we won't be able to rely on the u.s. if you don't have education. >> you can watch this and other programs online at booktv.org.

coming up on book tv, recounting the supreme court pronouncement of the civil rights act in 1883. the court by an 8-1 vote deemed the act unconstitutional. by doing so the protections of the 14th amendment. >> before we get to the tortuous and serpentine dealings of the 19th century supreme court will need to settle a little context. let me begin with an assertion. social scientists suffer from an inferiority complex. now, perhaps it is the scientist part feeling that they are expected to discover some wonderful formula to explain human behavior or maybe it is just that a field in which tree does seem to be quantifiable seems to have more have been one in which even basic concepts can be elusive. in short, subjectivity is a

pain. you can never prove categorically that your right. now, i remember many decades ago when i was in graduate school, there was a debate that raged fiercely as to whether or not social science could be the you-free. could we take the human values out? our after interminable hour we debated whether or not we could throw off those morally best change of subject to the and move into a sort of interior laboratory where experiments would yield quantitative results. as one of my professors said, could historian's aspire to create the equivalent of new and slauson of motion? now, by the time i completed my degree this argument seems to have mercifully receded. academia talked itself out, something of a phenomenon. social scientist, it was grudgingly admitted, was not really a scientist at all, but just someone who threw out a

hypothesis which they hoped we had supported at which other signs -- social sciences did then hurled bricks at. truth would remain intangible, and verifiable, and to some very significant degree personal. now, you all may be asking ourselves what this has to do with us. are we really getting credit for this? well, yes. there is a group of people who did not get the message. in constitutional law which is most definitely a social and not a natural science a significant segment of both the style of the population and those on the bench have planted a value free state square in the center of the american constitution. constitutional interpretation is not subjective at all, but can easily and objectively be discerned from the document itself. as justice scalia said in her 1996 speech, i take the words as they were promoted to the people

of the united states and what is a fairly understood meaning of those words. well, barely understood meaning seems to be a benign enough phrase. easily and easily understood, but it is actually rather. the constitution as every justice knows is notoriously and sometimes deliberately vague. for example, an article one, section eight which grants of explicit powers to congress, the final clause reads, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution and the government of the united states or in any department or officer thereof. this is a very potent sentence and a very wide-ranging. it was inserted midway through the constitutional convention by the committee of detail which was chaired by a south carolina slaveholder. the committee of detail, by the

way, which i discussed in depth in a previous book five men meeting in secret trust with drafting a prototype constitution. now, anyone who has ever been in business or in the law firm understand the enormous power that committees of this sort wheeled. whatever they produce sets the agenda, set the boundaries for debate. anything included in the prototype takes a concerted effort to remove. something not in the prototype has little chance of an option. particularly in this case in philadelphia by a group of delegates who would then for two and half months in 90-degree weather, the state house was closed. the windows were barred. the doors were barred. they were in this small room. many of them wore heavy clothes. it smelled. by august when the committee of details report cannot a lot of these people had really begun to dislike each other. in any event article one section

eight is sometimes called the sweeping clause. it was left intentionally amorphous by rutledge and his four fellows all of whom were federalists. so, but federalist party which was going to be in power could enact whatever legislation was required to effectively run the country. how then can there possibly be a fairly understood meaning, a quantifiable meaning of necessary and proper, a phrase which was inserted into the constitution to have no quantifiable meaning. now, as many of you know, this is no sterile argument. the necessary and proper clause is at the center of many of the challenges currently to the health care law. you are doing wonderfully. thank you. [applause] nonetheless and although history to say nothing of common sense has demonstrated time and time again that there is no one

immutable interpretation of the constitution. the current crop of value three -- value free justices has been succeeded in enabling conservative congressmen. a number of rabid talk-show hosts, and spawning at tea party movement privy, it insists, to the documents to meeting. as a result any justice to openly admits fate -- basing a decision on analysis or even worse, applying a broad notion of fundamental justice is derided as an activist which today has taken on a meaning that is just this side of communist. who is really the activist? the justice who admits that language itself is a good deal more subjective than the chemical makeup of an amino acid? one who insists that he or she can indisputably say what and emphasized phrase means. i find this move to 70 and i

find it to be often smug certainty to be extremely unsettling. the stakes i consider to be very high. to get a sense of what happens when objectivity, to use the phrase runs riot, we need only look back a little bit of history. and so by a happy coincidence we come to my book. a little scene setting is necessary. as you all know, in the wake of the civil war the nation enacted three constitutional amendments. the 13th abolished slavery, the 14th guaranteed all american citizens regardless of color due process of law and equal protection of the loss and the 15th guaranteed that the right to vote would not be infringed. now, despite the speed with which these amendments were adopted they were not particularly popular. white americans in the north as well as the south were none too keen at sharing 70 with 4 million newly freed slaves.

allowing african-americans to vote and in particular not even favored by the radical republicans who controlled congress. now, radical republicans is not my phrase. that is what they're called in the history books. these radical republicans, by the way, were not like today's version. these radical republicans wanted to expand the role of government, expanded significantly, and uses force to guarantee full equality under law which they believed to be a national moral imperative. so, as i said, even these men were not certain about granting the vote to a population of largely illiterate socially unsophisticated former slaves. a constitutional -- a constitutional court made it necessary. as you all know, in the original constitution 3/5 of the slaves were counted for apportionment. well, after the 13th amendment there were no more slaves.

so these 4 million black americans would now be counted in full to a portion congress. if only whites could vote in the south which actually occurred in the 1890's and the 11 confederate states were allowed back into the union, which everyone assumed they would be, and there was some substantial question as to whether or not they have never really left, there would be more congressmen in the south by virtue of this additional two fifths of the black population being counted. white southerners, in other words, would be granted a larger voice in congress and in the electoral college by virtue of losing the war. so, in the years after coming in the years afterwards the nation's electorate expanded by about 2 million new potential voters. 2 million, not 4 million, because only males could vote. this amendment did not apply to

women. female suffrage was not even a glimmer yet. now, since putting something on paper is hardly the same as making it a reality, to give teeth to these amendments congress passed a series of laws. it passed the civil rights act of 1866 would give all americans regardless of color right to enter into contracts among other things. to reconstruction acts and reinforce the tax. these laws book codified the guarantees in the three amendments and also established five military districts in the south. eleventh confederate states, tennessee had rejoined the union by ratifying the 14th amendment. they divided into the south into five military districts, each controlled by a general. they sent the army and to these districts to make sure that the law was adhered to. as a result, there were some

stunning changes in the south. not the least of which was black voters and black officeholders. many black officeholders on a local level, some on the state level, and some even on the national level. there was a time when both the mississippi senators were african-american. on the other hand, resentment of the occupation by most whites was ferocious. it resulted in a concerted effort, which was both legal, supporting the democratic party which opposed many of these measures, and illegal, the creation of a number of terrorist groups, the complex plant and a number of others. to get a sense of what it is like when an occupied army moves in to a defeated country with a resentful population and attempts to a impose its own ideas of democracy on the population and take people who are out of power and put them in power and take the people who are in power and kick them out

of power, think a rock. dow, the supreme court is charged with enforcing these amendments or at least ensuring that they were not in run. the court had been buffeted about by a good deal of political pressure. radical republicans made it more or less clear that adverse rulings, say the reconstruction acts were not constitutional, which they well might not have been, or that paper money which had been issued during the war was not constitutional, which it may well not have been, would have been met with the most severe consequences up to and including impeachment. the justices danced around the issue, they denied jurisdiction in some cases, dallied, waffled, and in some cases they just plain given. but by the 1870's the taste for reconstruction had begun to add considerably. in 1875 things really began to heat up. democrats had made huge gains in

the 1874 compressional auctions. mostly it was because of the resentment for reconstruction in the north. in the lame-duck congress, that last lame-duck congress the radicals forced through a civil rights act which was the most sweeping legislation of its kind in the nation's history. that law provided that all persons within the jurisdiction of the united states still be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of ends, public conveyances on lans and water, the leaders, and other places of public amusement, subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color regardless of any previous condition of servitude. immediately a cry went up across the nation, all across the nation. editorial pages, including the new york times, the way, which

said in language nearly similar to what we hear today that the law, the civil rights act, has put us back in the art of governing man for more than 200 years. suckling proved, how far and fast we are wandering from the principles of 17871 so loudly extolled and so fondly cherished. the civil rights act was denounced in speeches, but politicians, and even in churches. where was the remedies seem to be? as today with the health care law command the courts. and also just like the health care law, the editorial writers begged the supreme court to overturn the civil rights act of 1875 in the name of liberty. in the meantime, however, the lost days on the books, at least theoretically. to radically because although some businesses closed down and reopened later and others gave and, most businesses and most

institutions simply ignored the law. .. prosecutors were not willing to press a case when everyone thought the court would rule and they would be overturned and they didn't want to do it anyway. legal authorities, accord will take up this action relatively

quickly. they have any number of actions in which they could have used to test the law. the following year, 1876, after a tightly contested election between rutherford b. hayes, and a democrat, a contest which historians almost universally agree. the electoral college went to hays when it by one vote, 20 disputed a electoral delegates, hand three states in the deep south for putting his column. and back room deals and finally a commission which is a 15%

commission. and david davis to everybody agreed was amazingly impartial. to replace davis, and a man named joseph filo bradley was the only man in history to be empowered to choose a president by himself, the democrats agreed to do withdraw their objection to the election if a agreed to pull the army out of the south which he agreed to do. the public was not pleased with

this chicanery and hayes became referred to by democrats as a fraud or your fraudulent. the justices even though they took it on head on they began to chip away at the foundation of the law which is the fourteenth amendment. i don't have time to discuss all the cases that i will mention a few. that stemmed, and a board of 250 armed white men most on horseback. they converged on the court

house, in the courthouse where 50 of the black men awaiting the invasion behind barricades they had thrown up in front. and many white men and the gubernatorial election in which both the republicans, is a carpetbagger and the democrats, decorated civil war veterans, claimed victory, each of them had a victory party and it was such widespread fraud in the election, as the issue was sent to the courts controlled by republicans and i suppose you can guess was appointed

governor. was the shooting starts it was clear the white militia was outgunned and outnumbered so they gave up. after weapons had been confiscated they slaughter their captives. 100 black men were shot to the ground. some after they tried -- afterwards they claim the blacks opened fire and a captain had not been killed but that seems extremely unlikely since weapons had been taken from them before he was allegedly run down. and the riot depending on -- reminded everybody that was pulled out of the south. under the republican governor,

might not pursue this case. 100 invaders, three were convicted. they were not tried to murder with state crime, applied criminal penalties to a wide range of activities to the fourteenth amendment. they deprive the black man of their constitutional right to assemble. there were significant second amendments but we won't go into that. they eventually appealed to the supreme court. chief justice morrison, this was wait's first major case. this was the feared option.

wake was considered sufficient in mediocrity that the magazine, in the first rank of second rank -- in his opinion -- and bradley, heard the case in circuit court. that came in a bit. the fourteenth amendment prohibition are limited, does not extend the bill of rights, specifically in that -- nor shall any state deprive any person with life let personal liberty or property. and in the jurisdiction got equal protection of the laws. it applied to state action and not private individuals who

committed ordinary crimes. regulating ordinary crimes was reserved to the state government. the powers not delegated to the united states, not the constitution or prohibited by it to the states and respectively to the people. it is key to the entire period. and it is also key to what is happening in court. according to weight, because the fourteenth amendment the bill of rights to the states, and the enforcement act of 1870 exceeded constitutional authority unless there was an exception. of the prosecutor could demonstrate that those crimes were racially motivated and

meant -- solely because of his or her race the conviction might stand. 100 black men had been coldly murdered by whites and the whites stated their intent, excuse the language but this is what they said, to yvette the diggers. will he saw no proof that there was anything to do with it. to him it wasn't proven. this was the racially motivated crime. as a result one of the most heinous mass murders in this nation's history got -- not one person spend one day in jail. in 1880, four years later the court ruled on two unequal protection cases involving access to injuries. the first case of regional very interesting case involved the murder conviction of an african-american male in west virginia in april of 1874. he had killed his wife in a fit

of jealous rage, a fact he didn't deny. he claimed to be justified in the act since she had been almost obsessively unfaithful sleeping only with a multitude of other men bringing shame and the embarrassment upon her husband. since it was a black woman, the local authorities found the defense persuasive. they put him in jail but three sessions of surf at -- circuit court passed before he went to trial. only when his lawyers petitioned to have him removed was he brought to trial in state court and was convicted by an all white jury. the lawyers appealed to the west virginia supreme court. their claim incredibly, and anybody who does appellate work should listen to this included the assertion that the client was entitled to kill his wife. the only reason he was convicted

was whisked va. whites were so bigoted and a fair trial was impossible. it was part of this.-- was part of this point the only white men eligible. this ran counter to section 4 of the civil rights act so eventually the appeal reached the united states supreme court by which time thankfully it had been reduced to statutory exclusion of african-american -- the second case involved two teenage african-american brothers indicted of the murder of a white man. the jury chose to try him in state court but this time they were not chosen by statute but by convenience or contrivance. both juries were alike. the cases came down one after another.

they ruled the defendant had indeed been discriminated against. you cannot have a statute that only white people can serve on a jury. in the virginia case the conviction was upheld. the virginia law didn't specifically exclude african-americans and although every contrivance might have brought to bear african-americans off juries this had nothing to do--the brothers's fourteenth amendment rights had not -- this sends a very clear somewhat ludicrous message. all the white government's need do was not announced that they intended to discriminate doesn't matter what they did. as long as it wasn't on the paper, their fourteenth amendment requirement rights would be met. in 1882 justices of the united states versus harris which is

referred to as the two part plan a group of 20 men one was a farmer named harris either broke in or let into a jail before two black defendants or let out and to beat them and so severely four of them died. one of them died. harrison's 19 companions were charged under federal law for violating the enforcement act of 1871 which is referred to as the ku klux klan law which forbade two or more persons from going in disguise on a public highway to deprive any person or class of equal rights under the law. the roadmap is established. harris and his fellow defendants after the indictment was dismissed on the ground of the federal government had no right to legislate the activities of private persons. the fourteenth amendment applied only to state action, not individual action.

the right to legislate against individual action was reserved for the state's. if states chose not to pursue those who beat, burned and murdered a fellow citizen the federal government had no choice but to stand by and watch. the case was put in those terms. it was put in tenth amendment terms but that is what it amounted to. justices agreed and harris and his fellow klansman winfrey. these decisions were not branded by the same people but most of the presidents got to appoint either two, sometimes four, sometimes five justices during their term. most of the appointments which are numerous did little to change the makeup of the court for its philosophy or change its direction or provide much distinction. there were exceptions and the most prominent record in 1877

when old rutherford himself appointed a former kentucky slave holder to the supreme court. this was a payback appointment. kentucky had been widely expected to go to the democrats which he would have lost the election and harland who was a slave of a -- slave owner himself almost single-handedly moved around the state and brought the state to hays. clearly he was grateful. and in march of 1883 justices finally heard arguments on five cases which would determine once and for all the constitutionality of the civil-rights act of 1875. one was from new york and one from california and none from the deep south which gives a

sense how widely ignored this followed. they had agreed to hear the cases in 1880 but didn't put them in the calendar until 1883 so during the delay other african-american plaintiffs couldn't bring their cases to court because once they knew the court will eventually hear those cases they essentially shutdown. the decision in the civil-rights cases was an anticlimax. after all the decisions that came before it was clear when the justices would do and it was 8-1. writing the opinion for the majority was justice joseph bradley who seemed to make a career of being in the right place at the right time and grab the rules congress had indeed overstepped its mandate by attempting to regulate not just the action of the state but the actions of individual americans. the key portion of this issue was not the law apart. that didn't surprise anybody but

what came after when bradley could not resist spending his own social views. seemingly scold people who attempt to adjudicate equal rights. when a man has emerged from slavery and with the aid of a beneficent legislation, the insufferable -- there must be some stage when he takes the reins of mere citizen and ceases to be a special favorite of the law. when his rights as a citizen and man are to be protected in ordinary mode by which other men's rights are protected. in other words he was saying stop complaining. this stunning myopia in a country where black americans were regularly beaten and murdered was challenged by only one man and was a former slave owner. harlan wrote i cannot resist the

conclusion of the substance and spirit of the recent amendment of the constitution have been sacrificed by a subtle and ingenious verbal criticism. then he quoted edmund, famed sixteenth century english -- this is a phrase all of us should remember. it is not the words but the internal sense that makes the law. the letter of the law is the body. the sense and reason is the sole. then he took on bradley's assertion about african-american rights. it is i submit scarcely just to save the colored race has been the special favorite of the laws. what the nation through congress has sought to accomplish in reference to that race is what had already been done in every state of the union for the white race. to secure and protect rights belonging to them as free men and citizens.

nothing more. he predicted as a result of the decision of the civil-rights case decision we would not have african-americans taking their place as ordinary citizens but a descent into discrimination. he wrote today it is the colored race which is denied by corporations and individuals rights fundamental in their freedom and citizenship. at some future time it may be that some other race will fall under race discrimination. if the constitutional amendment is enforced according to the intense with which they were adopted, can't be adopted in this republic. any class of human beings in practical subjection to another class. as armand predicted the southern states which were now back in control of every state government by the band -- democratic party they took the gains. it started with mississippi in

1890 and by 1905 every southern state drafted a new constitution. there was no intention to discriminate but they discern literacy clauses or property qualifications, grandfather clauses that would be the same fate and i am going to quote james k. vitamin a went to the united states senate, the language is his, not mine. there is no use to equivocate or lie about the fact that mississippi's constitutional convention 1890 was held for no other purpose than eliminate the bigger from politics. let the world know just as it is. this was a public pronouncement. not at a dinner party and yet the court still refused to see that the practical impact of their decisions were creating an

atmosphere by which these kinds of constitutions could be passed and these kinds of statements could be made with impunity. and the results for everything the white government could hope for. black people were almost completely disenfranchised by the new constitution. in 1898, kept very good records of their voters. on january 1st, 1897, the number of black voters in louisiana was 130,000. by 1900, two years after the new constitution was ratified the number of black voters was 5,000. in every one of these cases what the court was essentially doing was ruling that the tenth amendment trumped the equal protection or citizenship

guarantees or the due process clausees of the fourteenth amendment. it turns out the fourteenth amendment -- once the rights of black americans had been disposed of the court took up the cause of the new oppressed class in america. the corporation. this is completely true. in a series of rulings in the late 1880s and on the court struck down attempts by states to regulate commerce even without any intention to discriminate. it was set up for black americans was not a black corporation. how can a corporation be granted fourteenth amendment rights. it can. in order to do it you just make it a person. in santa clara county the suffering pacific railroad co. chief justice wade asserted the court does not wish to hear argument on the question whether

is the provision on the fourteenth amendment to the constitution which forbid a state to deny any person within its jurisdiction equal protection of the law, to these corporations. all of the opinion that it does. you couldn't set rates, you couldn't tax, minnesota tried -- they were being gouged when they transported milk. of these were struck down on fourteenth amendment grounds. in 1896 it all came to the other. the rights of human beings had been disposed of and the rights of inanimate objects were upheld. the confluence was plessey versus ferguson. as most of you know that was the separate but equal decision. it was against the separate car lot in louisiana which

stipulated that blacks and whites did not -- could not ride in the same railroad car but they would have equal accommodation. the equal accommodation was whites would ride in the first-class cars towards the back of the train with padded cushions and relatively good accommodations and the blacks would rise -- ride in the car just above the locomotive which was constantly filled with smoke, with broken windows and never cleaned. this was the equal accommodation. in plessey versus ferguson was another 8-1 ruling. the court ruled through henry buildings brown, disappointed a few years before the personal separate but equal is just fine. there is no requirement in the

constitution that races before tiexiera accommodations as long as accommodations available to each one are available, that the accommodations were clearly not equal they overlooked. in the civil-rights cases, not only used his opinion to produce one of the nation's great enunciations of individual liberty and racial equality but also destroyed the camouflage laid on by the we see an and accepted by the majority that a law mandated separation of the races wasn't discriminatory. he wrote everyone knows the statute in question had its origin not so much to exclude white persons from railroad cars occupied by blacks as exclude colored people from coaches assigned to white persons. in one of the famous -- one of the most famous lines ever to come at of the supreme court

harland said in view of the constitution and the eye of the law there is in this country no superior dominant ruling class of citizens. there's no cast here. our constitution is color blind. it is important to know -- important to remember that the justices and the civil-rights cases based their rulings upon a strict reading of the constitution where as harmon's dissents were based on the notion of fundamental justice can you imagine the outrage today if a justice use the phrase everyone knows in an opinion? he would be vilified, ward knows. but jeff bradley's savoy rice case and henry buildings brown receive only scorn from contemporary scholars but those decisions are more reflective of

the way the court is headed and the way political pressure on the court is being applied and harland's notion that we are a country of fundamental justice. toomey this is a cautionary tale. this is what happens when too much of a particular philosophy, for some people one philosophy claimed to have all the answers and people stopped talking. the real truth to me is every justice is an activist. you cannot know what the constitution means with absolute certainty. every justice is an activist and they apply a personal and the hope good faith interpretation to a document that defies that. that is fine. if we fail to appreciate that america will not become a

country of greater precision of a lot less freedom. thank you and i will be happy to take questions. [applause] >> i will lead off with a question. >> i can take them. >> i have got it. [talking over each other] >> you let him get a foot in door. [talking over each other] >> here's my question. and an end of the eighteenth century we are heading into the 20 first century. if it were more specific rather than as big as it often is would it have survived or would it have been more amended? >> that is an excellent question and thank you for asking it. it is the genius of the document

that we can look to it to find notions of who we want to be. what disturbs me about his denying the notion of fundamental justice by conservatives and don't make that mistake of thinking i am liberal because i am conservative on a lot of issues but we are a country where the constitution was drafted to in short fundamental liberties. it was not something that was drafted as a bloodless document. these were 55 men 2 met over the course of four months and it really was remarkably difficult. if any of you have not read the story of the constitutional debate is an amazing story. people came and went and petitions were truly awful but they stayed because they understood to have a country you have to compromise, you have to put forth whether you believe to

be the countries that you see serving all of these people and a lot more sense everyone knew the nation was expanding. so a specific document would it have lasted? you can keep demanding yet but it wouldn't have lasted and created the country we have now. i think we all need to remain cognizant that a country of fundamental justice is a country we want. i don't see what a country where someone says 1200 black men were launched between 1890, and 1902 but unfortunately the law gives us no choice on how to deal with it. maybe not. but maybe it does too. let me put these down and i will take more questions. yes, sir?

>> a cautionary tale about tyranny of the majority as much as one is going on right now. is that what it comes down to? when the majority wants something he eventually it happens whether or not the individual makes sacrifices? >> the question was -- i will repeat the question because only i am mikeed. isn't this a question of the tyranny of the majority which was madison's great fear? the answer is yes. we always have to fear that a majority will impose its will on the electorate. on the population in such a way as to deny rights to denied justice to people in the minority. and is also true that anyone who is in power isn't going to give

it up unless they are either forced to were voted out. what it means is those of us in the majority when we are in the majority in order to have the kind of country we want we should be aware of the power we wield as the majority and those of us in the minority at any particular time because these shift -- should be aware that they have to work and push that their voices are heard too. there's no one answer. democracy is a sloppy system. is sloppy. it is inefficient but it is the other choice. you get things done and president obama said in a state of the union message whatever you feel about president obama he is right about this.

if you have a country where a government can just say tell everybody what to do it can be extremely efficient but not particularly free. we have chosen in our country to give voice to lots of different kinds of people and interests and that will lead to a lot of inefficiencies so it is a tyranny of the majority issue and it is something that you can try to deal with it varying degrees of success over time. anyone else? i am sorry. >> so many stark examples of real inequality between what blacks and whites have available to them especially in areas such as education and transportation. weren't these facts every use to try to challenge the doctrine of

separate but equal? >> i don't quite -- >> on a daily basis blacks had inferior accommodations, crummy hospitals to go to. >> the answer is staggeringly no. in northern lawyer who the people were going to challenge engaged never used the inequality of the accommodations in his argument. it was stunning because he wanted a complete constitutional victory so he never went to court. the interesting thing was the railroad companies didn't like the separate car law because they had to put on extra cars because instead of just filling the ones you had they had to have an extra car for blacks and first-class cars for whites so

they might have helped the plaintiffs get the separate law overturned but the equality was never mentioned. so he is thought very highly of, made it a huge blunder. by the time the law was challenged on the basis of inequality the precedent had been set and it wasn't until brown and apply only to schools let's not forget. it did not apply to a broad segment of rights, just to schools. it took to brown before the justices were willing to acknowledge inequality as an argument against segregation. yes? >> do you want to address the argument in arizona and that you heard about, people that the

legislature who want to challenge the fourteenth amendment that doesn't include -- they never intended to include people born in the united states. have you given that any thoughts? >> yes. the funny thing about strict constructionists is that they believe in the text of the constitution and will lead the text of the constitution until it goes against them. there is for example nothing in article iii that grants the supreme court the right to say what the constitution means. there is no right of judicial review in the constitution and more than that, blackstone and the english legal theorist who conservatives and generate said you should never let a court overturned a lot of the legislative act because then

they become decided. but and and and scalia in the same speech i quoted from said there is one exception to textual is in the judicial review isn't in the constitution. we made it up. we made it up for a good reason. it is a superlaw and as justice marshall said in marbury vs. madison it is the job of the supreme court to say what is the law. that is not completely true. marshall made that up too. they said we really like the power to say what the law is so on that there is -- in the fourteenth amendment, is there an exception? if you believe in a living constitution we can debate what the intent of the legislature, with their intent was in writing that. did we really intend to apply it

to the children of illegal immigrants or simply to make sure every freed slave was a citizen? if you don't believe in intent, if you are a conservative, if you are just as roberts or justice scalia or justice thomas or i don't know about your local justices but the ones here, forget it. the fourteenth amendment is barely understood meaning of that phrase is you are born here you are a citizen. i can't answer but what i can say is those people who are screaming about judicial activism have no right to talk about the intent. anyone else? >> unorthodox view of the political system, once the justices are appointed are insulated from paula tex. that is wonderful. the appointment process is very

political but once justices are appointed to you subscribe to the way it is now or do you see the political influence on the court and i thought i heard you say perhaps influencing right now? is that sort of alarming? >> do i subscribe to the notion that once justices are appointed their free from political pressure? and believe necessarily that justices influenced by outside freshers. they have been in the past. the court i talked about certainly was influenced by

outside pressure. they are influenced -- they are political not that they are running for office or hobnobbing with lobbyists although justice thomas's wife is a lobbyist but that they are political in the third phase see the country in a political way. sees justices that i wrote about some of our country acer where a. the population simply did not want to share resources, accommodations with black people. the court took the amendments and contorted it to such a way as to make it impossible for black people have have the rights they were granted in the amendments after the civil war. today's justices i believe bring a political point of view to

their decisions. not cynically. it is who they are and to go back to the other question it is the genius of our democracy. if madison said democracy works best when you lock a bunch of people in the room and they come up with something that does not work completely for everybody but works a little bit for everybody and some people are really unhappy and some might be more happy. the court is like that. the conservative or liberal issue, i think the court is political to get to the court, and once they are on the court to j.c. the law in a certain way. and corporations having free access to political contributions is another example of the justice's ruling saying

this is -- corporations have right of free speech. do i think they do? doesn't matter. there's nothing in the constitution that says you must make a corporation, give a corp. personal rights. there is a case before the court now where the justices for at&t asking for personal privacy rights since they have personal rights as a corporation and justices including conservative justices are dancing around trying to get around and justice roberts said sometimes be known is different from the adjective or squirrel means two things because they are stock with what they have done so the answer is i believe they are intensely political but not necessarily that they are getting phone calls in the middle of the night

from john maynard telliboehner what to do. one branch can't be removed without impeachment which is almost impossible. >> what about social darwinism? what we're talking about now. could you expand on what that meant at that time? what people were believing? >> it is about social darwinism which was a late nineteenth century kind of crackpot theory which as we view it today and which was kerri popular at the time. charles darwin published on the origin of species which said that over time species will

change to adapt to whatever conditions they happened to be in and more fit. the more fit will survive. darwin never said survival of the fittest. he said what ever variation of the species, whatever mutation best fit the environment within which it is living or competing for food will survive. blessed it will die. a number of theorists starting with herbert spencer and william graham sumner said wait a second. what this really means -- spencer started survival of the fittest. what it means is in society the group's who do well are doing well because they deserve to do well and the groups that do poorly deserve to do poorly.

so the rich are rich because they should be rich and most of the rich were white. the 4 are poor because they are inferior. they are not fit. they are not fit for this society. they may have qualities. they may be able to do certain tasks that a modern society the best and do well and west are not. this is really appealing to rich people because it says not only only -- it had a number of among the court not least of which was oliver wendell holmes. in a country where this popular notion that black people are doing poorly because they are

inherently inferior and that was part of it, was going to make the courts -- holding legislation which is going to artificially raise a group that didn't deserve to be raised because that waters down society and makes society worse all along. social darwinism was around probably in its heyday until the first decade of the 20th century and fits into national socialism and the master race and all this. right now we laugh at it as a crackpot theory but they didn't laugh back then. this gentleman first? >> i am reading legal cases of the civil war. justice bradley is rather

prominent. it certainly makes the change in the outcome. fa justices, i am wondering whether they were no. union just ass or in the south as well because if they were no. justices -- enacted legislation to implement the 13 food and 15th amendments. >> most justices appointed were from the north. disproportionately from new england or at least born in new england and they were not -- they may have been had a step with the radical republican. you have the radical republican congress, a committed minority forcing through a very extreme

social agenda that they believed in so fervently that they made sure to crush all opposition. those amendments, equality under the law, the country thought something should be done for the slaves. some provision should be made but sharing a restaurant? sharing a hotel? sharing a railroad car? was every bit as unpopular in the north as it was in the south. the justices who were appointed, many of them at least after lincoln ran after words were abolitionists and they did not believe in equal accommodations. lincoln abhored slavery but at least during his first term thought blacks were fundamentally inferior. the great thing about lincoln he grew. first person he showed his second inaugural to was

frederick douglass. people were capable of growth that it was a widespread view that you were dealing with people who were inherently inferior and didn't want to share with. these justices were out of step with radical republican minority in congress but not mainstream america. >> i would like to take a little time to talk about larry's other works. 50 years ago we were required at stanford university and constitutional law to read the entirety of the federalist papers. they were basically a pitch by the drafters of the constitution about why you should adopt it and the line that stuck with me all these years and applies today more than any others is federalist paper no. 10 which suppose -- should they come with

the majority does not hold and minorities are rise our system will fail which is where i think to a great degree we may be headed. i would like to say you carefully obscured my show and tell. this is inherently unequal. the book we have been discussing but this is his first novel called anatomy of deception. it was so good that it was one of our first picks. people take whatever we buy for them and can't get it back and has 100 members. members live all over the world. this book is set in 1885 in philadelphia and has some interesting stuff about the state of the law in a society when it came to defection of the study of anatomy and i should

mention also the astronomy said in the sixteenth century which is the book about copernicus' who went up against the status quo and it may be more theological than others. say a few words about this. >> unprepared as i am. i did write it. by wife didn't write it no matter what she tells you. it is a murder mystery set in 1889 in philadelphia. the protagonist is fictional but it has two very famous real doctors, one who was considered the greatest diagnostician ever in medicine. his principles and practices of medicine which he wrote in the 1890s was still in print when my neighbor was in college and william, of the greatest surgeon

america ever produced, there was of painter, it does result around autopsies which was frowned on and the 1882 made illegal in a prominent, put in jail for and it is a good read. there are no constitutional issues but there are legal issues that work for any of you who might want it on that basis. the astronomer in the sixteenth century, a plot to kill copernicus to suppress his theory. was a threat to the -- the earth was at the center of the universe with catholics and protestants because this man is

unique in an earth has to be unique in the universe. so someone postulating that the earth is not at the center of the universe threatened to create a lot of discord and copernicus was extremely unpopular with catholics and protestants. this was set when the theory was almost complete. it is a terrific book. >> we have five minutes. in 500 years the most dramatic shift from the revolution into print and if you go to germany i recommend the gutenberg museum which is the illuminating experience. what does that mean? larry and his wife have written books about book collecting and

passion for books. it is a digital book. a text file. [talking over each other] >> something i was completely unprepared for. i wrote an interesting paper in fifth grade. nancy and i wrote three funny books on antiquated books and it is a remarkable subculture but with -- we came into law the feel of a book. my daughter carried a backpack,

372 pounds. to me, i can't curl up in bed with my candle. bears something about the field of a book and the tactile major of the experience which makes it irreplaceable. i write on a computer and probably revise the book 150 or 200 times before it is done. when i print it out it reads on the page differently than it reads on the screen. i don't know why. not just that i see typos. and i suspect when they become more popular style of language may change because hard cover

reading and even paperback reading are very different but different from screen reading. >> any questions about book collecting? there is a comely woman in the back. yes, dear? [talking over each other] [laughter] >> helping arrange all this, had extremely famous grandfather. his grandfather was the new york yankee hall of fame baseball pitcher and john's mother amassed the most incredible archive of interviews. it is a library of congress caliber archive. she wanted to put it together

into a biography of her dad and her mother who was a broadway musical comedy star. we worked on this together. it is going into editing and will be out next summer and that is also a terrific book. having not that much to do with me, it was just starting. ago interviews with people who don't give interviews. it is amazing stuff about baseball, america, and an incredible life in california until he died in 1989. i am working on something else. thank you for that question. >> we are in the land of spring training. baseball or whatever it is to bring you back. one of our best selling books is the chicago cubs. i grew up in chicago.

this teaches you about life. [talking over each other] >> a tremendous pleasure to have you here. [applause] >> visit booktv.org to watch any of the programs you see here on line. type the author or book title in the upper left side of the page and click research. you can share anything you see on booktv.org by clicking share on the upper left side of the page and selecting the format. booktv streams for 48 hours every weekend with top nonfiction books and authors. booktv.org. this weekend on booktv on c-span2 new york times op-ed columnist david brooks on how our unconscious mind shapes character, intelligence and biass from the social animal. what house correspondent ken walsh on a long history of