said, very briefly, is a catastrophe, a catastrophe in which 14 million people, chiefly children and women and the aged, were killed over the space of just 12 years by two regimes. and nazi germany regime and the stalin regime in the soviet union. this total figure of 14 million is in itself i think astonishing. it's a number which is too large to grasp. ..

>> what this means is that of all the killing that took place, organized by both hitler and stalin, from the thrattic to the pacific, the tremendous majority of the mass murder was concentrated in this relatively small territory. >> visit booktv.org to watch any of the programs you see online. you can also share anything you see on tv, by clicking share on the page and select the format.

booktv streams live on weekends. booktv.org. now larry schweikart examines ten political and social issues from national debt to health care and gun control and presents his thoughts on what american's founding fathers would think about each top r topic. this was at books and company in beavercreek, ohio. it's about 45 minutes. >> i have to tell you just looking ahead, i finished more or less the last part of my next book, maybe my last book, i don't know, called a they tree yacht's -- patriot's history of world, and it is a killer, but you have to wait until next year. i'm here to talk about the

current book about what would the founders say. i started writing this with the tear party movement last week and i noticed people were carrying around the constitution, federalist papers such that, and it struck me while every american needs to know those documents, you should have contexts as to what the documents mean, what was in the hearts and minds of the founders when they wrote those things. for example, words don't mean the same thing over time. what did they mean when they used terms like religious freedom or militia. it's important to know that. i took ten events on the minds of americans about a year and a half ago, and i think for the most part, those ten are still on our minds. for example, what would the

founders say about bailouts? well, the short answer is we don't need to know what they'd say, but what they did. in there was a financial panic, and hamilton spent a lot of time in new york, and sick tear of the treasury, somebody who just overseen the creation of the bank of the united states, hamilton had a tremendous personal interests making sure this didn't up ravel the minute it was in place. what do you do with a financial panic and a large banking house is about to collapse? he let it collapse. he said you brought this on yourself, you live with the consequences. now, quietly behind the scenes to the actions don't spread to

everybody else, hamilton urged the bank of the united states which despite its name was four-fifths private, and urged them to lend where necessary, but didn't order them in the name of government or tell them they had to, but look, i'd appreciate it if you could help banks out who need it. that's the quick and dirty answer about bailouts, but there's more to it. understand that all the founders' primary concern, number one, numero uno, was national security. bassed on how they acted on other instances, they would have favored a bailout of lockheed because it supplied the united states at the time with its top

fighter jets. i think you can make an argument that they would have supported the bailout of chrysler back in the 1980s, but not today. what's the difference? back then, they made tanks. in fact, thigh -- they were the only tank manufacturer, and it's interesting when chrysler repays the government loan and comes back to health, the main way they do so is selling the tank division and plowing that money back in the company. i think you can make the argument where there's up stances they support bailouts, but strictly with national defense and national security. what about debt? this one is a no brainer, folks. not one of the founders supported heavy levels of debt, and i include hamilton whom i

argue gets a bad wrap from most conservatives. i don't think he ever intended for the u.s. to have debt of this magnitude. if you read closely hamilton's views in his arguments to set up funding and assumption builds the credit in 1871, he argued that the u.s. needed good credit, not a lot of debt, credit. as any parent knows you give your kid a credit card with a small limit and your goal is to this him use it and learn to pay off his or her debts by dealing with small amounts of credit before they deal with lots amount of credit like a car or a home. this is what hamilton had in mind. he was not a debt monger, not one of these guys like many conservatives say he was crazy

to indebt us to everyone. quite the contrary. hamilton set up a sinking fund, the early american equivalent of the american express card. it says you have to pay off your old debt before you generate new jets. how long does it take congress before it gravitates into the mastercard visa version of debt rather than the american express debt where you just keep raising your limit, and finally you reach a limit, but the american government apparently never does. he tried to set up a sinking fund where the government was limited to debt and always had to pay it off. his goal was two-foldment one was to make sure foreign states gave us credit when we needed it especially in times of war, and second, this is kind of strange,

hamilton and jefferson greatly agreed that government had to be watched for tyranny. hamilton feared a tyranny of the majority of people getting hold of the public treasury and vote themselves the treasury. hamilton's system aligned the wealth with government in such a way they were held to government that they would come to the aid of government. he wanted the rich people behind government, so if they get in trouble, the rich aid government. what happens? in 1793 you get a panic that threatens to totally destroy the united states. we are bankrupt, and president grover cleveland, whom i call the last good democrat, the last democrat believing in following the constitution as far as i can

tell, cleveland asks for help. who shows up? jp morgan. he gives the u.s. government a loan of $480 million in cold. in other words, back in the day, the private sector bailed out the government. the banks bailed out the government, not vice versa. none of them wanted to see debt to the extent we have today and they would be appalled about it today. couple other topics. what about the environment? this is one of these topics where the founders didn't have a lot of environmental problems as we would define them, so you have to read between the lines and see how they dealt with other issues related to the environment. for example, i think you could learn what they'd say about the environment through their treatment of land. what was their policy on land?

well, the first thing we learn about the views is they thought every person should own land, jefferson especially whose influence was of the view that you needed to get land out of the hands of government, which was the major hand ordinary -- land owner then, and get it in the hands of the citizens. he sets up a system in which the modern north wetion territory, he's here in ohio, was surveyed and sold at dirt cheap prices, a buck and a quarter an acre then. the idea was people make the better choices how to protect the land and the environment, and moreover, the government should not be a land owner because in europe when you got

kings, they tended to own a lot of land, and they could tell people what to do. there was a couple things that went along with that. one was they expected people to do something with the land. you couldn't just horde land and sit on it like a european land barren. there was several laws that come into effect during this time. one is what we call swatter's rights or preemption. if you found land, sat on it for seven years and don't get kicked off, you own the land. if they don't kick you out, in seven years, you can claim the land. what's the reasoning behind that? you shouldn't fence off a bunch of land, fence off texas and say i own all of this and never visit or develop your land.

see, they wanted to prevent that, and so to do that, they made sure you have to police your land and ride your land and develop your land or you might lose it. another factor instituted over time towards of enhancing development was property taxes. now, believe me i hate property taxes as much as everybody, but there's a reason for them and it's not to fund public schools. the reason for property taxes is if you got land you're doing something with it. it's not sitting empty. you're using the land. they wanted the land used all the time for the development of the good of your fellow man. the most interesting thing is once the land is in the hands of the people, also through jefferson's influence, you pass the northwest ordnance. what does that do? it happens before the constitution, okay? what does it do?

it says when you get people out on this land, you set up a system whereby those colonists, those settlers become citizens. what happened with the american colonies in england doesn't happen a second time out west in indiana, ohio, and elsewhere. they set up a system that tied land ownership to citizenship. in other words, they made citizens out of people who were one time just settlers. pretty amazing. so i think again they would be appalled today at the notion that the largest landholder in the united states is uncle sam, and they would certainly severson would -- jefferson would say, what are you doing in george, come over here, washington says you're a surveyor, get out there and survey the land. washington says i'd be happy to.

what would the founders say about such things as guns? guns is a case where you have to have a context of what is meant by the phrases in the constitution, and the necessity of a well-regulated militia. what's that? does it mean these people know how to drill? no, the keyword is "militia," and what's that? the background of the terms, you learn that a militia serves several functions. there was an elite militia in england training all the time and a more general militia if invaded. they were intended to protect you against invaders, and it's never used in the context of you arm people to protect themselves against home invasions or criminals or burglars. it's never used in that

context. it's helping to protect the nation against invaders if called up by the government, and two, if the government in england and later in the colonies gets to be oppressive, the militia is a counterbalance to the standing army, and the colonial people and the early americans had a tremendous fear of a standing army because standing armies were the ways that government, the way that monarchs impose their will on the people, so it was always assumed that the militia was a counterweight to that standing army and all the militia, all menned arm combined by the colonies equals the weight of the king's army, or in this case, the national army. washington's very interesting case study in this because he has fought with militia, and he doesn't like them. they run at the drop of a hat.

the only time they fight, really, really, really well is on home ground defending their homes and then they fight like tigers, but it's difficult for them to march from say new jersey to south carolina to fight. it rarely happens. he spends his career trying to turn militia until regular solders, regulars. there's a line in "the patriot" with mel gibson is looking on a battle going on, and gibson says that damn fool spent too much time in the british army going toe to toe in the field with the red coats is madness. that's what he needed an army to do and why we developed the continue continental army to go toe to toe and the biggest victories we have are that, the

blue coats and red coats going toe to toe, and the blue coats win. he didn't like them as an armed body, wanted trained soldiers, he counsels for a small standing army that's turned down. jefferson reduces the size of the army and then does two strange things. first, he recommends creating a military academy at west point to train professional officers. the other thing he does which is way out of character for him is send the u.s. navy and marines on their first oversea foreign war. in fact, you can call it the first war on terror, and he sends them over to fight the pirates without a declaration of

war, just on a joint resolution of congress and it's jefferson declaring war on all the states, even though only one, that would be tripoli, had actually quote declared war on us by calling down our flag pole, but jefferson sends the military, and it's very much the bush doctrine. he said you're with us or against us. if you're with tripoli, you against us. take them all out. it takes awhile, but eventually do that. okay, let's move on to banking. we know what hamilton does about banking, creates the bank of the united states. i don't believe the founders interpreted the right to coin money in the constitution as strictly being gold and silver coins. i think they interpreted broadly.

there was plenty of paper money around, they were flesch with it, -- familiar with it, and they gave the united states the authority to issue notes. back then i should add any private bank could issue money. did you know that? in the early 1800s, if you were a bank, you could print your own money. unfortunately, it was backed by gold or silver. the idea was that the bank of the united states, which was created by the federal government, but four-fifths privately owned should compete with all other private banks on the same ground to anybody can print their own money, but it has to be backed by gold and silver so it forced the federal government to be honest and discipline itself in issuing these bank of the united states notes. finally, the issue of religion.

what would the found every -- founders say about religion? this has the greatest room for interpretation, and the reason for this is context. if you read the constitution, and if you read jefferson's letter, you'd say, see, they meant for government to have no role whatsoever in religion, they want strict separation of church and state. that's not in the constitution, and jefferson was not here or at the constitutional convention, he was not there when the religious phrases were written in the constitution, nevertheless, this is the phrase cited. well, what do they mean by that? what they meant was in the context of christian religion, all these men were christians. the only one i can find who was remotely a dee yays was jefferson. others pray repeatedly.

that's not the actions of a dee yays. we have a diary entry of a prayer he wrote in which he signs the prayer off to my lord jesus christ, savior of my soul. he's not a deiss. how much of a practicing christian is whether you believe church service is the end all and be all. what are these guys meaning when they talk about the freedom of religion. it's my view based what i saw in the documents, namely that all the colonial charters refer references to god and most to jesus christ, that many of the state legislators formed oaths of allegiance to their office in the name of jesus christ and all of the state legislators of

pennsylvania had to swear such an oath in the name of jesus christ. it's hard to believe you can take that out of context of them all being christians. in other words, what do they say if a muslim walks in and says well, because of the separation of church and state, you have to fund a muslim foot bath in the university of michigan. they would find that crazy. well, you have to remove a cross on a public space such as a park? i think they would find that silly, but, again, it's all in the context, and you don't get that from the words, but get that if you get into the state constitutions and the letters of these guys in their private lives. some of them like ham hamilton went through phrases. some recall how as a young man he prayed constantly, in middle

age, slips from that, but as he gets close to the time of his deathings he gravitates back towards god. you find these guys at different parts of their lives are extremely religious, and when they wrote the phrases, they assumed everything would be handled in the context of a christian nation, and i like to use the example of the federal reserve system. the federal reserve system doesn't mention gold in it once, not once, and yet everybody assumed when it was set up, it would be set up on a gold standard. it was so widely assumed nobody put the words gold in the federal reserve act, and that's how it operated for the first 20-30 years. one other thing i wanted to mention on guns that i found funny. in connecticut there was a statute that required you to

bring your musket to church. i'll stop with that and take questions here. if you don't mind, make sure you speak -- is there a mic? i'll just repeat the question if we can't hear it. if you're ready to go, we'll take questions. yeah? >> just raise your hand. >> okay, such a huge group here. snow did it. >> i'll ask one. we're talking about bailouts at work today, and we were discussing how does that work like california whose almost bankrupt and they need a bailout, how does the state get bailed out or does that ever happened? >> it's never before happened in american history. i suppose if you want to stretch it, you could argue that in the revolution because the states had big debts and hamilton's

plan was called assumption, but here's the difference, they assumed the debts of all the states one time and paid them off. they didn't say, oh, california, you're in trouble, we'll help you, but not arizona, or idaho, we'll help you, not rhode island. there's nothing in there that says they'd ever do that again. yes? >> i know you talked about your book, but what do you think the government's role in education is? they've taken quite control over education. >> right, the question is what's government's role in education, and i didn't mention that very much. this one surprised me. i got to tell you. you know, i come upmostly educated in public schools, but taught in private schools,

taught at the university of dayton, and my heart is with home schoolers, and the founders, boy, they will be right with me. they were all in favor of public education, and they all favored public education grades one through six paid for by the taxpayers. the difference is they favor the the state and local taxpayers paying for it, not the federal government. the federal government was to have no role in public education. now, here's the kicker. before all the public school unions go, yeah and popping the channel pape, here's the -- champaigne, here's the second part. what were they to teach? this is mostly by benjamin rush, the early father of education, all of theme believed that what should be taught is math, grammar and english, history, but what kind of history? a patriotic history. i'm sure they'd like that in the

united states. a patriotic history, and they were explicit about this. you don't teach all nations are just equal. all nations are fine, but we are special, and you need to show why we're special. all believed in a patriotic history to be taught, and then lastly, they all believed that you should teach religion in the public schools because they all assumed that unless men were vir choose and taught virtue, you could not have a good republic. while they believe in public schools, it's public schools to do what? teach history, religion, math, english. yes, sir? >> when you use the term "religious" i mean, one can talk about spiritualty and looking at religion being more dogmatic with respect to a do

nomination. what were they talking about? >> dominationallism within the church. i can't emphasize too much they were christians and what they feared was the anglicans gets in charge in virginia and exclude the baptists or the baptists in charge and excluding the catholics. they never dreamed hindus or muslims would come in saying you have to treat my religion the same as christianity. i don't think they envisioned having to share that with other religions. sure. >> larry, what do you suppose they would think today of the way we are all subjected to the tsa? [laughter] >> they would probably find washington's musket packed away with a flint in there.

what's this? it would be outrageous. they wouldn't -- there's a story about washington, you probably heard this. he was a very unemotional man, only seen to cry publicly maybe once or twice. ones that people can document, and on one occasion at a dinner party, somebody made a bet. i bet you can't walk up to washington and slap him on the back. hey, george, how are you doing. they said washington turned and gave this guy such an icy cold stare, he backed away, and nobody touched washington again. what do you think he would do with a tsa agent groping his genitals? heed pull out his pistol with a flint in it and say meet my little friend. [laughter]

anybody else? yes, sir. >> i was thinking when you talked about the environment, and you talked about the government owning, being the biggest land owner, and i imagine the land is held in national parks and that? >> yes. >> was the patriots against holding land for that for the common use of everyone? >> if it's to the point where individuals can't get the land anymore, the land was to be moved into the hands of individuals. now, how did the national parks come about? in the late 1800s when ranchers asked for the land to be set apart for grazing. they want a freebie from government and the taxpayers to allow them to have their cattle and horses and sheep go out and graze the land freely at taxpayer expense. the government goes along with that, but then it gravitates like we're letting you use the

land. it's government land, and then all the sudden the individual farmers couldn't stake the land off. that was government land. would they be in favor of national parks? probably one or two, but if they saw where it had gone today, where, you know, the vast ma joy tar of alaska ssh majority of alaska and utah are federal lands. they would not be in favor of that at all but insist you get rid of it. if you want a park, get some friends. and go buy some land and call it a park. that's what vanderbilt and rockefeller did in the 1800s. you want a park? create one. it's within your power to do so. nobody's stopping you. oh, wait, the federal government is stop signing you today. yes, sir? >> i'd like you to pick two or three problems you think facing the country today that are probably the major problems and

how our founding fathers would handle it differently than what we have now. >> well, the number one problem i think is debt, and debt at all levels is really starting to hinge on everything we do. i don't know if you saw how much you pay for gas and food this week, but all of this is the result of too much debt working its way through the monetized system. i mean, the saudis don't trust our money anymore and discussions of going to gold as the international reserve currency. there was a state, south carolina, introduced a bill to have transactions be payable in gold. well, you know, that tells you that we're a long way from having the dollar as good as gold, and it is this debt issue that is eating us up on so many levels, and it's partly the cause of the housing collapse, was that housing prices were inflated and people use their

houses as atm machines and houses go up because of inflation. number two, lumping two or three together and say national security. there's a story out there in drudge today that said there were 127 nukes planted across the united states by al-qaeda. now, i don't believe that, but i think they have gotten in one or two weapons of mass destruction in some place? it's possible. i saw an interview with a san diego immigration official who was surprised on camera and said have any weapons of mass destruction come through your port. he said our port, no, not our port. the way he answered it just gave me a cold feeling in my gut because it was clear he knew that something had come through another port, but the more -- okay i can answer the question

and make everybody feel good. i think they would be concerned about national security and especially the threat of terrorism. how do you balance that? the query about the tsa people. i think there's ways to do that and look at how israel does it for example. they don't -- they don't go through and grope every single person. they target certain people, and they target the people who are most lickly to be terrorists, and it's not 83-year-old white-haired grandmothers. >> those are the two problems. how would the founders handle them if in charge here today? >> first of all, they would restructure the debt issue. there was a good plan for california if followed which was to refinance the whole debt and then start paying it often at lower rates. i think you've got to begin by paying often the debt, cut government, and cut

entitlements. for example, when social security started under fdr, there were 14 people paying into social security for every one taking out. today there's three young people paying in for every one of my mother taking out, and by the time my students back there try to take social security out, there's going to be one person paying in for every three of them trying to take out. the numbers don't work. you do have to finally get to the entitlements and the really big ones of social security and medicare, and i think they have no problems saying, hey, social security is unconstitutional. you know, we've got to get rid or greatly pair down the systems and get them under control. we good? oh, yes. >> what do you think they would say about our professional politicians who just stay on and on and on? >> what about professional

politicians? this would make them sick, really make them sick. you know what john adams did, and this is the first chapter, when he loses the election to thomas jefferson, he can't wait to get out of washington. he's in a carriage on his way home before jefferson even takes the oath of office. that's how little he wanted to be professionally around politicians. the idea then was you would be a citizen legislator, show up for a couple of months, vote on a few things and get the heck out of town for two reasonsment one, you need to get out of town because when you hang around with other people who has the job to give away tax money, you connive better ways to gave away taxpayer money. somebody brought up the point of what does washington make as a city? hollywood is known for movies,

detroit use the to be known were cars, silicone valley, microchips, what does dc make? what they make is influence. they make influence in giving away taxpayer dollars, so the other reason they have you get out of town is so you get back and hang out with your peeps, average people so you know how much a gallon of milk costs, what a home mortgage is like, so that you see them every day and you know their problems, not so you see other people getting these huge salaries, driven by chauffeurs, going to the finist dinner parties and think, it can't be too bad out there. excuse me, get out there and see what bad is. i don't mean in a town meeting where only your own followers are invited. i mean, an open meeting where

people can shout you down and see how many of them like you then. no, they would be totally opposed to today. >> your talked about national security. at the time of the founding of our nation wouldn't one say the loyalists were a threat to our national security? in other words, loyalists that might not have declared themselves, but infiltrated in the administration or possibly in whatever. today that infiltration, let's just say it's jihad jihadist-islamists. what would the founders do to deal with the threat like they did with the loyalists? >> they were pretty harsh on the loyalists. they burned their houses. they drove a lot of them out of new york where they could get control of the area. they were harsh. when adams was in power, they

passed the alien insedition agents to stamp out criticism of the president. now, that goes too far, and it was struck down, but nevertheless, that's kind of what they were thinking. i think the issue in the revolution is more like this. you have one-third of the people called loyalists who want to stay with the king. you got one-third of the people called revolutionaries wanting to separate, and one-third who don't give a crap one way or another. they don't care. they want to be left alone, and, of course, you can't be left alone, and sooner or later you have to choose sides. i like the famous line, and i think it applies to what we're doing for example in iraq or afghanistan. he said his job as manager was to make sure the one-third of the players who hated him stayed away from the one-third who didn't care one way or the other; right? that's where we are in iraq.

if we can keep the 10%-20% of the people who hate us away from the 70% or 80% who don't care, we might be all right. >> how would they deal with the threat today? >> jefferson went over without a declaration of war and hammered the pirates. >> [inaudible] >> if you can identify it, they would hang traitors. look at andrew jackson does with two, and i use the term "spented" british -- "suspected" british agents. he doesn't wait for a trial. he shoots them. word gets out you don't mess with andy jackson. yes, sir? >> in light of your response

earlier to the entitlements. my social security and medicare, in what context would the founders have used that phrase to promote the general welfare if it's not to support health care or social security or medicare, what did that mean to them? >> great, great question, and, you know, this is used so many time by liberals to defend the programs. well, we have to promote the general welfare. you can find out what they mean by the preamble if you look at what they empowered the government to do within the document that follows. for example, provide for the common defense. what did they lay out in terms of laying out the common defense? rate an army, create a navy. congress can declare war and lay out all things that the government is empowered to do. what kind of things did they lay out in regards to the general welfare?

coined money, contracts, patents, copy rights. it turns out all the things they had in providing for the general welfare are business-related things to have us be prowess prowess, our business prosper because of the flat playing field. people know the rules and will be secure. they never wops suggested -- once suggested welfare. they knew about welfare. in england, there was two types of poor, the deserving poor and the undeserving poor. deserving poor were those who could work if given a chance, and the undeserving poor were those who would to the work. i'm reminded of a guy i saw in las vegas walking between mgm and the new york, new york, and

there's some beggars out there and there's a sign that says vietnam vet. vietnam did this to me, and i ain't bitter, but anyway, there's this guy, and god love him, he holds up a sign that says, why lie, i like to drink. he got more money than anybody eel. i think in the general welfare clause, they provide for everybody's welfare, copyright laws, contracts, coining, making sure the money is sound so people's lives are not eaten up by inflation. you don't see references to poor houses or welfare. yes, sir? >> much of the extension of power in the federal government has been under the interstate commerce clause. what use of the clause -- how was it used before the 1930s

from the founder's days up until then? >> the interstate commerce has really skyrocketed after 1887, the interstate commerce act, and that was designed to control railroads because railroads run between states. okay. that's legitimate. it's kind of like a waterway, but then they got carried away. you know, there's a grain elevator over on that railroad, and because the railroad runs between the states, that means the grape elevator is a part of commerce. by the new deal what they argue is an astounding thing that a farmer in california who planted a crop on his own land in california does not sell it out of state, and the court ruled he's -- not the court, the roosevelt administration says he's engaged in interstate train because it effect prices outside the state. in that kind of rationale,

there's no activity to be regulated by government because everything you do here in dayton affects bookstores in other states. you're violates interstate trade. it's outrageous. don't get me started on trust and antitrust because the whole thing is impossible to come up with a reasonable loming call way to approach this. if you undercut your opponent's prices, you're guilty of predatory pricing. if your goods and services are too high, then you are guilty of price gouging, and if your goods and services are priced like everybody else's, then you're guilty of collusion. what do you do? that should do it. if everybody's happy, i'll be happy to sign books for you. thanks again for coming out on this cold and blustery night. thank you. >> for more information visit

patriotshistoryusa.com. >> habe -- habe yous corpus is not only script ordering that jailer to bring a named prisoner into his court and along with it was a return on parchment explaning why it was that jailer was holding that prisoner, but more than a scrap of parchment 300 years ago and certainly today, habeas corpus stands in our minds for the idea that no one should be held, constrained in any way against their will by someone else without the law supervising that con constraint,

without the law in a person of the judge making sure it's okay within the law. >> how did the concept develop? >> well, i emphasize the writ and the literal piece of parchment because habeas is an idea long before the idea you and i associate with the term about the great writ of liberty, the means by which we ensure freedom from constraint. it's actually a very common form of process. when you stop to think about it, courts are commonly dealing with people that have to be in front of them whether as witnesses or -- >> [inaudible] >> that's right, that's right. courts are always having to call people into court, and there's lots of different instruments called habeas corpus because you owe somebody a debt. it's ironic in a way that this humdrum instrument of daily

court activity should ultimately come to be associated with these ideas about what freedom is and how law recognizes that freedom. >> how was it used in old england? >> in lots of different ways, and that's one of the important things about its history is simply the variety, a much greater variety we associate with the writ today. people would have been jailed for fathering a bastard child, for not paying taxes, were laughing in church, people would have been impressed in the navy illegally, any one of these things, held by your husband, your spouse who was beaten by more husband, any one of these could have used habeas corpus to make sure someone else was not constraining them against the law. >> wasn't it a king's right? >> yeah, that's an important

point. those of us who know about has habeas corpus, yes, ultimately it is about liberty of the kind that you and i sort with that word, but 300-400 years ago, people didn't have the same ideas about liberty. they had notions of sovereignty, and the sovereign was literally an individual being, the king. the way it worked was not to claim the prisoner, but really about one officer of the king, the judge, being sure the lesser officer of the king, the jailer didn't disobey the king's law. disobeying the law is against the king's honor. it was very important the jailer, the king's officer, behave, so interestingly i think one the things that a rewritten history of habeas corpus shows,

the jailer is the focuser of the writ. >> how does the concept develop in early american revolution society and make its way to our constitution? >> well, there are a couple different ways to think about that. certainly first is the extent of experience we had in north america, and, of course, all the other british colonies around the globe in the 18th century prior to independence, and there was a very extensive experience in colonial court and crib -- caribbean court. americans are partaking in an experience that british clon colonists are havingment in other words, largely through the silent accommodation of epg lish common law more generally into english, american judicial practice. of course, the other interesting

way in which it finds its way into the law is in the constitution, in the so-called suspension clause, a clause that really puzzles historians and lawyers and really in recent years because in a lot of ways the suspension clause brings that into our law negatively by saying when habeas corpus is not available. it doesn't say it's a part of the law, but assumes the presence of habeas corpus in american law. >> who made sure that's in the constitution? who is behind that? >> we don't really know. this is one of the things that's interested in recent years as u.s. courts ask questions about the nature of the suspension clause. the typical practice is when they want to figure out what's the history, the first thing you want to do is read the diaries and other accounts from the constitutional convention in philadelphia in 1787, but

there's probably only a couple dozen lines total, and two or three speakers who speak to the question of habeas corpus during the convention itself, at least from the records that we have, so it's hard to lay this on a particular person or a particular impulse. instead i think the better way to think about how this comes into our law and ends up in our constitution was that it was widely assumed that it was part of the common law that was going to be carried into american law simply by virtue of having been part of the practice that colonial britains now american citizens were going to have in their own law. >> civil war, habeas corpus suspended. >> right. >> any other times in our history? >> i can't speak to that. i want to be clear and pull back a little bit and say i've written strictly about the english and imperial history, and as a matter of fact i didn't

want to write about the american history in part because other people have written about it quite extensively, and in part, they've done so successfully, and my point was that we had misunderstood the english and imperial prehistory. now, to answer your question, habeas was only formally suspended during the civil war and there's other moments in american history especially during world war ii when the way the writ was used or not used was controversial and has continued to be controversial. one of the interesting things about recent gurs presumption of -- jurisprudence because they have run in countervailing directions reached over and wanted to pass their american experiences back into the english experiences to see if there's some kind of

irreducible kernel of the writ's history that you can get at. >> well, paul halliday, let's take that back to your article. what kind of history did you invoke in that? >> that's right. i certainly want to be sure that you're listeners know i worked on that with a marvelous colleague here at the law school, ted white, in large part because he knew the american side. i was a specialist in the english practice, and i had been writing and thinking about that practice, and i knew what was going on, let's go ahead and get it out there with the guantanamo business, that the english practice was of enormous interest in the u.s. courts, and to my mind, they didn't understand, and so i started writing this with my colleague, ted, we have to work together on this. i knew he could help me and we could put this into a form to

help connect it to american jurisprudence, and that's what we did and why ultimately justice kennedy in the 2008 decision of the case cited the article because we were able to connect the kid of the ideas i mentioned from the english experience, it is thus about the ultimate and unquestionable authority of the judge to question any jailer handling any person anywhere. that was really the central premise that justice kennedy i think went on out of that review article, and then the corollary to that was critically that the key thing was that historically the writ by being concerned with jailers and not so much with where their were meant that the question about whether or not an american jailer was in guantanamo or in philadelphia

was less interesting whether or not the jailer is supposed to answer to u.s. courts and u.s. oversight, and i think it's at that point that the english history going back centuries, the idea of the king and answering the king comes into play. >> what's the image on your book, paul? >> that's a parve louse image -- marvelous from the 1780s. it's lord mansfield's court and a prisoner is being brought in. interestingly, that's the image of a husband of a woman who had been constrained by him as well. in a way it's what do you want to call that? a dopple ganger image in the court supervising constraint. he's constrained for previously illegally constrainted his wife, but what i loved about that image as it ended up on the

cover is that there you have the justices centsing up on the bench and -- sits up on the bench and minding the jailer bringing in the prisoner who may rightly be held in this case by the jailers. that's what you learn on habeas corpus madings is often prisoners are legally held. it's not a get out of jail free card. >> what do you teach at the university of virginia? >> british history generally to undergraduates, english legal history as a survey course also to undergraduates which is actually a lot of fun, and then i teach graduate students in early modern history, particularly legal history, and do that at the law school. >> through the law school? >> uh-huh. >> teaching those courses, when do you find the time to write? >> i -- i mentioned the other day in my book festival presentation whether i wasn't

sure whether i was proud or embarrassed by the fact that i spent over ten years working on that book. i started it before guantanamo. this was a project that came out of questions strictly from within what historians call -- what are the questions to the past in which we don't have good answers? so that's all a way of saying that you fit in the time to write, and in this project, much more significantly, the time to do the research. one of the keys to the project was that i literally went and studied the writs themselves which no one had ever before examined. that was the foundation for writing a book about something, about a topic that had been off written about before and coming to some very different insights about it. historians' eyes light up with the archives, but it was remark bible being in the -- remarkab b