we need to grow businesses. here is our growth plan. it is to do everything we can to help businesses start to grow to thrive and succeed. whether that means backing off, cutting regulation, we will back off and cut regulation. where that means intervention and investment we will intervene in invest. whatever it takes to help our businesses take on the world we will do it. ..

>> and prosperity confined to just a few parts of the country and a few industries. our plan is to build something new and build something better. we can do it. look at what is happening in east london. you're up's financial capital is matched by europe's technology capital. facebook, google, cisco, even silicon valley bank seeing our potential and investing right here. look what's happening across our country. the wings of the world's biggest jumbo jet made in wales, the world's most famous digger. do you watch formula one? whether it's the german, the australian or the brazillian, they all have one thing in common. when they get into their car it's made right here in britain. [applause]

this is the new economy we must build leading defense manufacturing and technology, green engineering, inventing, creating, exporting. of course it's easy to talk about these things and it's more difficult to deliver them. for start coming you will not deliver it by just inviting industries and to states. that is not just an insult to the financial and insurance companies, the accountant firms, a financial-services that make millions of pounds and employ millions of people. it is much too simplistic. i've always argued we need businesses to be more socially responsible but to get proper growth to rebalance our economy we've got to put some important new pieces into place. we've got to take action now to get credit flowing to the businesses that are the engine of our economy. we have to reinvent the banks so

they fulfil their role of leave lending to the economy. we'll setting up technology and innovation centers or we can work of the entrepreneur is to turn brilliant intentions into successful products. we have reformed taxation to encourage enterprise and investment into high-growth firms. but we are also going to have to take some controversy decisions and challenge vested interest. when firms need to adapt quickly to win the contracts, we cannot go on with a rigid outdated employment legislation of the past. i know the critics will say what about workers' rights? we mustn't forget the important worker right of all the right to have a job in the first place. [applause] >> when in modern business you

are either quit or you're dead it is our infrastructure lag so behind europe that is why we need to build high-speed rail and we need to get the best and fastest broadband network in europe, too and when the balanced economy needs workers with skills we need to put an end to the old education and training. this government is providing funding for an extra 250,000 apprentice ships across the parliament. but we are not getting enough back from big business. secure is a direct appeal. if you want skilled employees we will provide the funding. we will cut the red tape that you have to show the leadership and give the apprentice ships in this country so badly needs. [applause]

unlocking growth, rebalancing the economy also requires change in brussels. the e.u. is the biggest single market in the world. it has amazing potential but it is not working properly. almost every day i see pointless new regulations coming our way. a couple of weeks ago, i was up early in the morning preparing for the day's work going through paperwork and i came across a director. do you know what it was about? whether people with diabetes should be allowed to drive. what on earth does this have to do with a single market? do you suppose anyone in china is thinking i know to help grow our economy let's get diabetics off the road. europe has got to wake up and the e.u. girls pan we've published backed by eight countries which want to push on every council and every summit that is the alarm that brussels needs, but there is one more

thing that business needs. our businesses need the space to grow literally. and that is one of the reasons we are reforming our planning system. it's hard to blame local people for opposing developments when they get so little of the benefit. we are changing that. the manufacturing part is built in the area your council will keep the business rates. if they get built to keep the council text this is a local west plan from globalist party. i know what people are worried about, they are worried what this means for conservation and let me tell you i know our countryside and i would never do anything to put it at risk but we've got to get the balance right. the proportion of the land in england that is totally built up his 9%. there are businesses out their desperate to expand to hire thousands of people but stock in the mud of our planning system.

of course we are going to be open to constructive ideas about how to get this right. but to those opposed, everything we do, my message is this: take your arguments down to the job center, because we are going to get britain back to work. [applause] now this new economy we are building it must be an economy for everyone. you know the real tragedy of labor's economy? it's not that just it was understandable, unbalanced and overwhelmed with debt but it left so many people behind. they talked a lot about opportunity. but they ripped the ladders of opportunity away. we had a welfare system that trapped thousands, with an

immigration system that brought migrant workers to do the jobs we were paying the british not to do. we had a housing system that failed to meet the demands of prices shot up and feel good the unsustainable boom and we have a government, boy did we have a government that cleaned the taxes to spur back to the benefits. lieberman tells us they care so much about fairness and justice who say they want to help the rich and poor it was leiber that gave the casino economy and welfare society. so who is going to lift the poor and give our young people back to work and create that fair society? not you the self righteous labour party it will be us the conservatives who finally built the economy that works for everyone and gives hope to everyone in our country. [applause]

that would start with a good education for everybody. it sounds so simple. a good discipline, rigorous exams, but it's hard. it's hard because our education system has been infected by ideology. instead of insisting on every child's success has too often made excuses for failure. they say that poor kids can't learn. blease can't do that well. in this community you can't expect too much. you really must understand. i do understand. yes, i understand. but believe me, i am disgusted by the idea that we should aim for any less of a poor

background and a rich one. [applause] i have contempt for the motion we should accept narrow horizons for a black child and a white one. it is the age-old irony of the liberal left. the practice oppression and they call it the quality. [applause] we are fighting back and something really massive is happening in our country who live there is the review will prove with the right schools and freedoms and leadership, we can transform the education of the most deprived children. you heard yesterday from the inspiration of student from the academy the inner city schools

deprived areas, almost half of the children on a free school meals but this year three-quarters space five gcm c including english and math. it is better than with the majority of state schools got last year, some of the most affluent countries. why? because the head teacher, her staff, the parents, they all rose up and said we are as good as anyone to read our children can achieve anything. leadership works and we are going to make it work in all of our schools. [applause] we are backing and more businesses to come into our education system and set up the new schools, too. change is underway for the first

time in a long time the number of study in the vital subjects history, geography, language or going up. exams are now being marked on the punctuation and grammar and teachers are going to be will to search bags for anything in schools, mobile phones, alcohol, weapons, anything. it's a long hard road back to regular that my friends we are well on our way. [applause] and here is something else we are going to do. in britain today we do have a group of schools that are utterly intolerable failure when 90% of people get five good gcse's. you heard me talk about social responsibility. i want to see private schools,

academies in the system. kawlija does it and others can, too. the apartheid between private and state education is one of the biggest wasted opportunities in the country today. let it be less the conservative party that helped you to tear it down. [applause] reader that and learn income standards in schools and teachers back in control, the conservatives are back in government. [applause] and the economy that works for everyone means working out some of immigration as well. it's a pipeline but for too many it's become a way of life. generation after generation in the cycle of dependency and we

are determined to break it. part of our answer is controlling immigration so we put a cap on the numbers of them on e.u. immigrants allowed to work in the country. we must lot of talent. i want the best and brightest entrepreneur scum science and students around the world to get the red carpet treatment and they will but the fake marriages, the people writing for a month and stay in for years, the clintons lindsey used to stay in the country we are clamping down on each and every one of them. [applause] we have to get some sense back in the labour market and get british people back to work. for years you have been conned by government to keep on and plymouth figures down. they put as many people as possible under the sink. 2.5 million people to be exact.

not officially unemployed but claiming welfare, no questions asked. today we are asking those questions, and it turns out of the 1.3 million people who've put in a claim for the new benefit in recent years, 1 million are either able to work or stopped the claim before the medical assessment had been completed. under labor, they got something for nothing. with us, they will only get something if they give something. if they are prepared to work, we are going to help them, and i mean really help them. if you've been out of work and of benefits for five years, the job center can help that is not going to cut it, that isn't going to help him. you need to get your self-esteem and confidence back. you need training and skills and intensive personal support. previous governments were never willing to make a proper commitment or willing to sign the necessary check to get this done, never willing to break the

rules to make it happen. we have to read we are investing now so we don't pay leader. we are going to spend up to 14,000 pounds of individual people just to get them trained and back into work. i know that is a lot of money but it is worth it. let it be us, let it be this government, the conservatives but finally build an economy where no one gets left behind. [applause] for most people, that means also a home of their own. it's not just any old home with a decent one, spacious with a proper front door, room for the kids to play. but the percentage of british people that own their own home is going down. unless you get help from your

parents come average age of the first time by year in our country today is 37. you hear some people say why can't we just be like in europe or there's nothing we can do because we haven't got the money. i completely disagree. the failure of the housing market is bound up in the debt crisis because the lenders won't lend, the builders won't build and the buyers can't buy. we are going to sort this out. we are going to bring back the right and use that money to build homes and take people off the waiting list. they made us the property of the owning democracy and was margaret thatcher that gave people the right to buy so let us in this generation inspire a new tory housing revolution. [applause]

and while i'm on the subject of those conservative figures, let me say this, i am incredibly fortunate in leading this party that i have had the incredible support from all our previous leaders. duncan smith, william hayes, john major and of course thatcher and you know what, in this party we don't boo our leaders. we are proud of our party and what they have done. [applause] [applause]

a few months ago we were all shocked by the scenes on the streets in london and other parts of the country. but perhaps it was the most shocking thing is that people weren't that surprised. there was no great called republican query to find out what had gone wrong. instead, what life and you can hear was the increase in assistant overwhelming cry of the country shouting to its leaders we know. we know why this happened. we know what has gone wrong. we know that if the system keeps budging the difference between right and wrong we will never improve behavior. we know as long as the police go around with one hand behind their back we will never make the troops truly safe. and more than anything, we know that if parents don't leave the responsibilities their kids will get out of control. what people are saying to us is yes, we know what has gone wrong

and we want you to put it right. one of the things people want is speedy justice. after the riots those responsible were put straight into court and tough sentences were quickly handed out. i've made it clear to the prosecution services, the ministry of justice come attorney general's if we can do that than, let us do it all the time you're in and year out. [applause] but we all know the problems go deeper into that is why my driving mission in politics is to build the bigger and stronger society. it starts with families. i want to make this the most family friendly government the country has ever seen. more child care, more relationship support and for the

125,000 families the were the most troubled. today i can announce another new focus. there are 65,000 children in care to read to you know how many children there are in care under the age of one? 3,660. do you know how many children under the age of one were adopted in the country last year? 60. this may not seem like the biggest issue facing our country but it's the biggest issue for these children. how can we have let this happen? we have got people trying all over the world to adopt babies while the system at home and agonizes about placing black children and white families with the right values and the right effort let us be the ones who end of the scandal and hold the

most vulnerable children of all. [applause] for the leadership and families also means speaking out on marriage. marriage isn't just a piece of paper. appalls couples together through the of the inflow of life and gives stability dhaka. this is powerful things about what we've all user yes we will recognize marriage in the tax system but we are also doing something else. i stood before the conservative conference once and i said it shouldn't matter what their commitment is between a man and woman or a man and a man or a woman and a woman and you applauded me. five years on we are consulting on legalizing gay marriage and

to anyone who has reservations i say this: yes it's about the quality but it's also about something else, commitment. conservatives believe in the tie that binds us that society is stronger when we make vows to each other and support each other. so i don't support the marriage in spite of being a conservative, i support the marriage because i am a conservative. [applause] we value community spirit and social action, too. we hear it in our own lives and communities it's one of the great things about britain and you know what over the last five years of labor government in number of people volunteering went down but last year the decline was open and now the proportion of people say they

feel they belong strongly to their neighborhood is the highest for a decade. if you are cynical though a few miles from here it used to be ravaged by crime and drugs and graffiti the local people of the kids off the street and played the graffiti and cleaned up the drug habit and the dealers. we can support the leadership that makes it happen. that's why we are giving the birds power to take over the running of playgrounds and parks and making it easy for people to give their time and money and causes and elected the great cities and drawing up even more radical plans to open public services and give more power to the people but one of the biggest things holding people back from playing a part in building a bigger society is health and safety. i was told recently a school

wanted to buy a set of highlighter pens but they're came a warning. not so fast make sure you comply with the control of substances of the regulations 2002 and make sure you include a party of fresh air and hand and eye protection. [laughter] try highlighting with all of that. this was and how a great nation was built. they didn't rule the waves with their arm bands on so they are scaling it back. [applause] let's bring common sense to government. [applause] building starter communities is why we introduced national citizen service and use of for yourself of the start of the

session. one of the people who took part this year wrote to me and said this, this has changed my perspective of life. you can do anything if you work hard and have a supportive team around you. you can do anything. that is the spirit i am talking about and why we are tripling the scale of the national citizen service and we will build our society and that is leadership. next year we are going to welcome the world for the olympics and of course the jubilee. they say a lot about britain, tradition and modernity all when one. today we can choose to be a country that is back on its feet and striding forward paying down our debt and earning a living getting people off welfare and into work breaking ground in education with excellence for everyone and not privileged few. we can be a country where people look back on their life and say

i worked hard, raise a family, part of the community and was worth my while. we are too far from that today but we can get their. it's not complicated but it's not easy either nothing worthwhile was easily one. we were told we were finished before. we couldn't find a role but we found the role and took on communism and helped bring down the berlin wall they called our economy of europe but we came down and turned this country into a beacon of enterprise. they never had the biggest population were the largest land mass or richest sources but we had the spirit. remember it's not the size of the dog in the fight it's the size of the fight in the dog. overcoming challenge. yes. [applause] reinventing ourselves. [applause]

that is what we do. it's called leadership. let this time and challenge be turned into a time of opportunity not sitting around watching things happen and wondering why but standing up making things happen and asking why not? we have the ideas, the people and now the government freeing those people back in those ideas so let's see the optimistic future and show the world some fight and pull together. let us work together and together lead britain to better days ahead. [applause] ♪

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[applause] ♪ [applause] [inaudible conversations]

now a discussion on the history of race relations in america with political scientist melissa harris perry who spoke earlier this year at the institution in western new york. this fall she joined to the university to head the institute focused on the study of race, gender and politics in the

south. this is a little more than an hour. >> -- gender, race and politics in the south. her belief in the classroom is critical as the critical space for democratic reflection is reflected in the fact that she has taught students from grade school through graduate school. dr. harris-perry's interests are in the study of african american political thought, black religious ideas and practice and social and clinical psychology. her writing frequently appears in many scholarly journals and newspapers. she also writes a monthly column for the nation and is a frequent contributor to msnbc. in 2009, dr. harris-perry became the youngest scholar to deliver the w.e.b. du bois lecturer at harvard university, and in that same year, became the youngest woman ever to deliver the where

lecture. dr. harris-perry is the author of the award winning dak barber shops, bibles and eet every day fault and political thought. and a frequent chautauqua speaker, brazil described the recent book "sister citizen: shame stereotypes' and black women in america as insightful and provocative, a must read for those interested in learning more about american politics. the title of melissa harris perry's lecture today is reconstruction lessons, current u.s. racial politics and the lessons of the civil war. ladies and gentlemen, please welcome melissa harris perry. [applause] thank you for that wonderful introduction. very kind.

let me start by telling you a story. i'm from the south. i grew up in charlottesville virginia and in richmond virginia, went to college and grad school in north carolina and i live now in new orleans. at some point maybe six or seven or even longer ago months ago i got the invitation here and they came through the woman who handles my lectures and i heard her say on the phone, and i typed into my google calendar chattanooga lecture. [laughter] and this made perfect sense to me because it was about the civil war and it was related to the colonial williamsburg foundation, and my daughter started fourth grade jester de in new orleans so i thought had been no big deal i will pop up to tennessee, give the talk and

head back before the end of the evening. so when she called me maybe two weeks ago and said you know you've got to put your flight to new york i was like new york? [laughter] where am i going? so i spent two weeks spending a lot of time learning about this place and i am honestly a little nervous at the moment because i did not realize the stage to which i had accepted an invitation and i am truly honored to be here also surprised not to find myself in tennessee. [laughter] in addition to being a southerner, i am a political scientist, not a historian. and in addition to the things that made me somewhat nervous about today, it was looking at

the speakers from this week's. the speakers have been here are the sort of thing that one would get and a year or in a semester but certainly not four days prior to my lecture so i want to be clear i won't be offering a great deal more on our original historical insight on the moment of the civil war. my particular vantage point as a political scientist is to make use of history to take the work of artists and historians who are telling stories about our past and make them part of the analysis of the political moment. the first time this happened for me was in graduate school. my best friend then and today is a historian and when we first

met, she asked me what you study? i study african-american politics and she looks at me and asks a question that changed my life. she said you studied black politics when? and that question just asking to make something historically specific to ask when has been incredibly important in the work i do as a political scientist, as many social scientists of course we are always looking for the model of how the world works and not necessarily thinking about the historical contingencies of those models but even as a political scientist i can say that i believe our contemporary political environment cries out for an urgent collective emergent in active american history. including its complicated intersections with race and

racism. i do have a social nerve where i imagine a quarter hour of every cable news program being devoted to a study of american history. [laughter] i can hear their ratings plummet. [laughter] but indulge this fantasy for just a moment about what would happen if we were engaged in thinking about american history. what might happen if americans understood revolutionary war history? it might be considerably more difficult for the tea party to argue that their anxiety about a president elected with 53% of the popular vote by an electorate that enjoys universal adult suffrage is just like or just the same as the concerns of

colonists who decry taxation without representation under the rule of an absolute monarchs. just that small distinction. [laughter] i honestly also think that no sustained engagement with the federalist papers could allow us to continue such narrow simplistic assertions about what the founders believed. the paragraph i wish we were talking about in this political moment is that the american founding was contested. it is itself a political process and not a defined revelation that came down and with agreement from all of the founders. the very thing will hold up now as our constitution is of course a political document that included all of the nature of politics which is to say

compromise. i think the ability to deploy that patriotism in the way they are currently deployed in the political context requires deep and broad ignorance about america's history. [applause] i want to be clear i don't mean if we read the federalist papers or fought closely about the revolutionary war that we would find that in fact all of the founders are secular, liberal humanists the war of course progressive and would follow and read the nation magazine and watch msnbc. that isn't what we would find but i do think that simply a recognition that there has been contestation from the beginning would help set our current political crisis in context.

although we suffer the deficit of the historical knowledge in general we seem to be particularly uninformed about the history of marginal people. black americans, non-white immigrants, women of all races, workers and of course gay americans. i also by the way suspect if we had a clearer understanding of those marginal histories that secession would seem like a less reasonable response to political disagreement that if we carefully at conversation even for just 15 minutes on the evening news about the civil war we might be better a court to recognize and appreciate the consequences of the racial and next currently directed at president obama's administration i'm confident a study of labor history would make us more sober in our conversation about stripping workers of their

rights to collectively organize and i have no doubt young women would feel more urgent about protecting their reproductive rights if we were having more public conversations about the struggle for women's equality. there is no single historical truth is that what we all americans to conclude the same things about our future. history is in many ways the collective project of making the meeting out of the events of the past but history is also more than an academic exercise. i think the tax six textbook committee is clear about how important history is. it's why the work to sanitize it. the tea party is incredibly aware of how powerful historical discourse is which is why the cherry pick moments like the boston tea party or vague

historic enemies like hitler and socialism. in short i think the results of the collective aid parents are profound and those with political goals on the left or the right may well invest their resources in the discussions of history just as much as pressing for particular public policies. so is in that context that feeling about history the time excited despite the fact i'm not a historian of the civil war to have an opportunity to discuss the lessons of the 19th century for our contemporary political moment. fourth among one to consider. and there is no way that i can do justice to all of these. my goal in this portion is to be a bit provocative about how we might imagine these aspects of 19th century history impacting

our current moment and hopefully engage in conversation as i've been told the q&a here is often quite robust. [laughter] so here are the four points i would like to make. first is about the continuing structural political and economic legacy of a were unresolved anxiety about federalism so talking little bit about federalism and this extent to which federalism is the core civil-rights move but, civil war moment although civil rights movement that we are continuing to work with. the second is about the power of consider it nostalgia in american political culture. yes i'm going to talk about the help. [laughter] third is about the civil war and reconstruction legacy for black voting and how it's critical to

understand contemporary african-american voting and electoral behavior within the context that goes back to reconstruction and finally the fourth, the lingering racial anxiety of the american south define themselves into broader american political culture which is of course also connected with confederate nest of shy in general. so let's start with structure. the to immediate precursors of the civil war has the issue of slavery squarely within federalism. it is impossible to suggest the civil war is only about one of these issues. this obviously tall times both about the question of the intergenerational human bondage and about the relative autonomy of the american states relative to the national government.

the to the brink of the final decade of stress that break apart the union for the fugitive slave act of 1850 which allowed them to pursue the formerly enslaved women, men and children into the free states and return them to servitude and the second is the compromise of 1850 that allows territories to enter the union as sleeves or free states which of course set up violent lobbying. it turns of people didn't just get to make these choices but in fact there was lobbying and organizing with the potential states. now one might suggest that the bloody battles of the civil war result of the questions of 1850 through the fugitive slave act and the compromise of 1850 once and for all but once lincoln and

the union when and once the union is preserved it is clear that we have established the federal government. and i think there are reasons to read post 1865 american history in a way that does demonstrate the growing authority of a centralized national government at a minimum a recognition that in fact that government may be the primary site of citizenship identity but it would be a mistake to think that those questions were resolved with the final truth. the contemporary politics in fact i think reflect these continuing anxieties fruit in the 19th century question about the appropriateness of the federal government policy. let's take the current debt ceiling debate. let's just take that moment we can go back if you would like what's to the recent debt

ceiling debate and look at it as a moment of civil war knowledge so remember the civil war is the first time the country willingly took on massive federal debt. it sounds nuts with the president decided it was worth spending money that we didn't have in order to preserve the union. [laughter] i just want to pause for a moment that to preserve the union was worth going into debt this notion that itself is not inherently evil or bad for the state but is actually a reasonable choice for responsible leaders to make under the circumstances of the need to preserve the union. the civil war is also the moment of the imposition of the first federal income tax of 1861. but to fight a war one might

need to impose a tax. [applause] where have we come that you would applaud to improve the tax? and then of course the third we heard about so much during the end of the debt ceiling debate is the great civil war amendment, the 14th amendment emerging in the period of reconstruction which establishes american citizenship as written the due process and equal protection and i also want to pause in a lot of ways the end of regionalizing the 14th amendment both because the context emerges but also because of the u.s. that was put in the 20th century but the fact is the 14th amendment provides a

national citizenship definition for all americans and a critical way for the first time and of course as we have learned in the recent the date it is published the full faith and credit of the united states in this clause that the validity of the public debt shall not be questioned, and it was that phrase that many suggested president obama had the authority if you wanted to simply and the debt ceiling fight, raise the debt ceiling limit as a result of the requirement of the 14th amendment the validity of public debt shall not be questioned. i want to pause here because these moments, the willingness to take on debt, the imposition of the first federal tax, and the question of whether or not the president has the right and responsibility to raise the debt ceiling were all core questions

15 minutes ago. 15 minutes ago what we were talking about were questions of the 1860's the fact these have been resolved are clearly not resolved at all it up for debate about whether or not the country's primary responsibility is to get out of debt and preserve itself and whether or not the federal government should be appropriately bringing in more tax revenue and whether or not the president has certain kinds of authority under the 14th amendment relative to the economic power of the nation. so the victory of the union is in certain ways a victory of the federal government but the incompleteness of reconstruction means the tension of the states' rights remained. localism is of course the painful consequence of this.

before the debt ceiling debate, the central debate around localism and the power of the federal government had been the health care reform act blind as obamacare. redoing the anxiety over the nullification and power of the federal government to act as the preeminent policy-making body. i want us to be careful as we talk about nullification because their refusal over and over again to abide by the fugitive slave act of 1850 comer resistance against was a kind of localism that said you cannot come here to this free territory and take people away back into

american slavery into was the considered its despite the language about localism who insisted the power of the federal government be in post on the local traces of the free states not to respect the fugitive slave act so there isn't just southerner like localism because they are yocals [laughter] and the yankees like big government but rather just as we see today there is a waxing and waning about the desire of the power of the government to act in one's interest. issues of marriage equality, abortion, and other socially conservative issues demonstrate that often those who make claims on states' rights and localism are actually willing to use the power of the federal government to impose a single set of ideas

nationally when those ideas are consistent with their ideologies and that is certainly true on both sides. so, again, just as a matter of provoking conversation, the war of the northern aggression -- [laughter] arnall a war that settled once and for all the question of federalism, and we continue to be in that conversation today. now the second is less structural and less cultural. it's a question about confederate with nostalgia. again i grew up in the the new south that i knew the confederate flag very well. and i want to be clear the confederate flag truly does have multiple meanings.

my husband is the most aggressive civil rights advocate who i know personally. i knew their must be others in the world know who spend every moment of his days working for very little i assure you to bring about questions of racial justice. but he's also an eagle scout and so he can buy camp, not in these shoes but we camp mostly in the south in mississippi, louisiana, and in the florida panhandle. and my husband has a camping out and it includes the shorts i try to burn on every camping trip. [laughter] but it also includes a hat and as a pit bull and a confederate

flag. if [laughter] he and i have many pictures of him and his hat and tell him if you ever run for office again i'm going to put it out on the internet the civil rights guy is wearing a considered flag and of course we are both keenly aware of the history of the confederate flag but we are also aware of a couple other things. one contact wearing this hat makes us safer in southern campaign locations. [laughter] that's really absolutely true. [laughter] there's a way in which it signals a kind of item not mad at you it's fine and we are just here to have a good time. [laughter] but of the other thing is it actually does have a kind of resonance for our childhood. we really did watch the dukes of

hazzard growing up. we really did listen to the band alabama. we really are southerners. we are not something else. we are both black and southern at the same time in a way that doesn't necessarily always cause double consciousness. but that said, the effort, the work of trying to get african-american southern stories back into the center of our stories of what it means to be sovereign are blocked by a continuing refusal inconsiderate nostalgia to recognize the role that african-americans played. now i think nowhere was the power of the consider it must also more clear than when governor mcdonald declared april consider it history month in virginia. in his declaration, governor mcdonald called for the

virginians to, "understand the sacrifices of considered leaders, soldiers and citizens during the purpose of the civil war. leaders, soldiers and citizens. now focusing exclusively on these three categories, leaders come soldiers and citizens, the governor refuses to acknowledge the existence of black people in the south. sure, there were some black soldiers who fought for the confederacy, but the majority of african-americans contributed to the confederate effort through violently coerced unpaid labor that was part and parcel of the experience of dehumanizing the intergenerational bondage. mcdonald's seemed to think that particular history is on worthy of remembrance. ..

>> my dad was the first dean of african-american affairs right there at the university of virginia. when i grew up in virginia -- [applause] >> when i grew up in virginia, my teachers referred to thesivity war as the war of northern aggression, and -- absolutely, and the war between the states. didn't hear "civil war" until college. any interracial family experienced harassment and abuse during the decades that we made

our home in the commonwealth, but virginia is also the place where i made lifelong friends, found spiritual communities, and was educated by many tough and loving teachers. i came to a political consciousness in virginia. i can recall many of the phrases of doug wilder's inauguration address as the first african-american governor, and my favorite moments, november of 2008, was just seconds before president obama was elected virginia turned blue. [laughter] now, i share this history precisely because it's not exceptional because we are, as african-americans by and large, southerners, and, in fact, current u.s. census data shows we are increasingly, once again, southerners in the kind of reverse migration that is happening in the past decade.

virginia history is my history, but when the confederate nostalgia emerges from governor mcdonald, it seeks to profit from a history that is unrecognizably alien to me. a narrative of virginia that laments the end of slavery, that romances action against the state, and that memorializes sedition. my problem with the confederate flag is not about racism. it just isn't. i've seen the confederate flag flown in indiana. i've seen it flown in michigan. i've seen the flag flown in upstate new york, in california, in a ton of places that have nothing to do with the civil war in the context of being former confederate states. my problem with the rebel flag

is that we have decided that it is an equally pay patriotic flag to fly as the american flag. the issue here is not about racism. the issue here is about a willingness to allow a revisionist history about succession to be part of our american understanding so that to fly the american flag is to make a claim towards a history -- a history that is about breaking the country apart, and yet we continue to think of it as an equally patriotic choice. [applause] i think, i think we do this because we were in a rush at the moment of reconstruction to heal

the fissures of the country. the civil war was exceptionally painful. one of the key elements of that healing was to allow former confederates to tell the stories of the former path of slavery in a way that recognizes them as the center of those stories. gone with the wind, birth of a nation, these are the rememorializes rainses -- remembers that affect our american understanding of what precivil war american war was. the moonlight and magnolias, the version of american history that erases black suffering in order to tell this story about a time when things were simpler and better and when black women made

us pancakes. [laughter] mammy and her various formations remains madison avenue's most powerful marketing tool in all of history. it is mammy, her ability to sell domestic products by recalling a time when the white domestic was undergirded by faithful black women who willingly contributed their near magical capacities to ensure that white households and

families were supported. now, mammy did not exist. she is not real, and yet, it was almost true that she would have been standing right next to martin luther king on the national mall. just a few years after women got the right to vote in the 1920s, the daughters of the american confederacy from virginia actually proposed a mammy statue to be erected in the shadow of the lincoln memorial, and it was a tribute to all the black mammies -- let's be clear. these women understood themselves as credit creating a -- creating a tribute to the sacrifices of the african-american women, the maids, the help, who had served them. this stay chew, they suggested, would be erected there in

remembrance of all that they had done. the senate, which had repeatedly refused to pass the lynching bill, was willing to appropriate funds for the purpose. it was only because when it got to the u.s. house of representatives, african-american leaders and press and church and individuals fought and kept it from happening, but it is possible that enshrined in granite at this moment, there could be a mammy statue on the u.s. mall, and it would be right there next to king. i try to think about the psychic assault i would experience if that existed, how i would feel about going into washington, d.c.. i'm a runner, and one of my favorite runs is the national mall. the idea of what it would mean to pass a statue not of an actual person. let's be clear.

mammy did not exist, but she exists in the american imagination of the context of our confederate nostalgia, "the help" the book i tried to pretend is not happening, and now the movie which is hailed as a great reconciler of racial angst continues to reproduce this notion that african-american women are primarily sort of magical creatures capable of not only simultaneously solving the problems of women who have far more resources than them, and without question always loving the white children who are their charges, and never experiencing sexual violence or violation by the white men for whom they

work, and always embodied that could never provoke sexual anxiety of any kind, and -- and capable of ultimately walking off victoriously into the jim crow south unemployed, and we applaud. that's what happens in the help. the end of "the help" is a woman walks off unemployed into the south in a maid's uniform, and the audiences go wild. [laughter] this is at our core about our unreconcilable anxieties about the end of the civil war. politics move quickly.

he was elected with about 95% of the african-american american vote. that means that about half of black americans who typically vote for the republican party showed up and voted for barak obama in this context. there's 87%-90% of the african-american vote goes to democrats, so i think condy rice and stehle voted for president obama. [laughter] i'm pretty sure powell told us he was planning to. i think that the easiest way to read this is a purely racial story, a story about african-american's desire rows of racial representation. that's not a 3w5d story to -- bad story to tell. it really isn't. i want to remind us the era of

reconstruction was a moment when african-americans had an opportunity to hold office and to recall how extraordinary that is, what it means to enter into citizenship from a state of servitude and move immediately into office holding -- it actually happens more swiftly for formally enslaved black men than it did for white women who had been free for a very long time, but once they got the right to vote, there was a little bit longer lag in those states for white women actually becoming office holders. it happened incredibly quickly between the mid 1860s and the unholy compromise in 1870 of ace tildon, so there is a deep and profound yearning among people of color and other marginalized individuals, not only for substantive representation of political interests, but also

for demographic and descriptive representation. it's a reasonable yearning. it's not one i know how to describe other than to say there's only been one time where i felt an absolute healing of the double consciousness that is the notion of what it means to be black in america, to be both black and american in this struggle that seeks to rend you apart, and the only moment i felt it was the inauguration where for one second if felt there was to contradiction of the identity of blackness and the identity of americanness. by january 24th, it was all over. [laughter] for a moment, there was a sense that this could go together, but i think there's also potentially something problematic about the notion that descriptive representation might overcome substantive representation.

the anxieties expressed by former princeton colleagues who believe president obama's physical blackness is overwhelming his policy orientation vis-a-vis black communities. i want you to remember that african-americans were republicans for 100 years. they were republicans for 100 years long after there was very little reason to be a republican anymore, and they were republican in numbers approaching 80% to 85%, and they were republicans because of lincoln. the civil war cemented african-americans to the republican party for a century, and in near totality. the clarity with which that struggle created a sense of

solidarity for african-americans to only be broken by the second struggle, the struggle for full equality in the context of civil rights, and then in a matter of decade and a half, black voter, starting with the new deal, but cemented with lbj, become democrats, and they become democrats in the same percentages and with the same level of solidarity. race is certainly part of it, but the fact is this is also for african-americans and act that is responsive to the realities of the civil war and reconstruction. the notion that political power is actually not best wielded by splitting the votes between two parties and bing a swing vote, but rather in rewarding a political party for its willingness to stand up for the fundamental freedoms and rights of the community. as we look --

[applause] as we look at how african-american voters behavior, we have to be very, very careful not to begin to denigrate black voters as somehow under the spell of a black president because, in fact, a longer view of history shows us that this is representative of how african-american voters have behaved. my final piece here, and that is the way in which the civil war continues to give us a legacy for white racial politics. since the election of president obama exposed profound anxieties about american citizenship and its intersection with marginal identities. when i teach race in american politics, the first thing i do in my classroom is say race is a social construction. it is not reel. my students write it down.

[laughter] they nod their heads, and they also think to themselves she is nuts. [laughter] i can tell white people from black people from brown people. social construction, whatever. you know, on saturday when i have to get my hair down, it doesn't feel like a social construction, but a by logical reality because i cannot go to a white hair salon. i have to go to an african-american salon, whatever on social construction. [laughter] the 2008 presidential election was such an opportunity for me on this point because i could actually show the hypersocial construction of a candidate. it was like those filmstrips from third grade where they would show an apple tree grow in like seven slides; right? it goes really quickly. that's what watching the social construction of president obama's race was. it began in the primaries with

the language of president obama is not black enough. he's insufficiently black. he's not really black. people with white moms and african dads are not black. i don't know who goes to harvard. that's not black. [laughter] he's not a preacher. she's a senator. that's not very black. [laughter] who you saw many americans say, no, no, he's black. i'll explain. naacp and he was so white he could pass into the kkk and pass and gather information, and if you had a black dad and white mom, you're open for enslavement, and you're black enough then. awful that is very black [laughter] then, of course, jeremiah wright appeared on the scene, and suddenly, president obama was way too black. [laughter] then the question was how can we walk back? he's not black like that 6789 you see, most black people are angry. he's not black. he's not angry black.

he's south like -- [laughter] [applause] okay. but then because we're in a post-9/11 america, pretty soon the anxieties shifted from black to too black to a question of islamic identity. he's a secret muslim. [laughter] now, again, not only do we need education of history, but perhaps a religion lesson. it's not possible to be a secret muslim. [laughter] right? it is, in fact, possible to be a secret christian; right? all the christianity requires is a profession of faith in your heart. you can profess is and secretly walk around. [laughter] islam, islam, you can want be a secret muslim. it requires certain public acts. if you are not engaging in those public acts, you're not muslim. it's -- okay.

so -- [laughter] we don't -- of course, it's difficult for us to have that sort of conversation, so it -- we felt these moments beginning to emerge, but then birthism brought them to the floor, the question that maybe he was not too black or insufficiently black or muslim or not muslim, but clearly just not american, not a citizen, and this,ble, is the -- i believe is the reconstruction moment. this was, for me, the moment that reminded us that at the core of reconstruction was the definition of american citizenship. i just made this claim about the 14th amendment being a definition moment of citizenship for all of us, but the notion that the primary discourse about the president would not even be an availed discourse about citizenship, but, in fact, a very clear discourse about citizenship.

i'm not making a claim whether or not he's a good or bad president, whether he's effectively wielding paver, and only pointing out the central ang anxiety that emerged within weeks -- i mean, remember that the april 2009 tea party rally in texas where now front runner rick perry suggested that succession was appropriate was april of 2009. president obama was inaugurated to office in january of 2009. he might be a horrible president, but he wasn't in april. he could not have been. there was simply not enough time. he may be an exceptional and great president, but he wasn't in april 2009. it simply the speed with which the succession response, and the

birther response occurred means it could not have been about substance and policy and governing. it could only have been a reflection of the human being, the body, that embodied the american presidency, so remember that from the end of the civil war in 1865 until the compromise of 1877, black americans enjoyed this brief experiment with full citizenship and political power sharing, and during this decade, black men voted, held office, organized as laborers and farmer, and it was a fragile political equality made possible only by the determined and power presence of the federal government. when in 1877 the federal government advocated its responsibilities to new black citizens and with drew from the south, it allowed local governments and racial terrorist organizations like the kkk to have a monopoly on violent, force, and coercion, the very

definition of the state, a monopoly on violence and coercion in the south for nearly 100 years. the current tide, emerging in 2009 of racial anxiety and racial sentiment feels like that moment that we southerners call redemption, the taking back of the south. in the birth of a nation, the 1950 film that princeton president woodrow wilson, then u.s. president, showed in the white house, the film depicts a racist imagination that is currently at work, a kind of bigotry that assumes that no government could be legitimate if it is embodied and remitted by black -- represented by black bodies. so those four, our continued

anxieties about federalism are engagement with confederate nostalgia, and how african-american voting is still part of and responsive to the realities of the civil war, and finally how racializing anxieties directed towards the president have a root in a reconstruction moment about what it meant to share power with the formally enslaved. drawing parallels between the civil war and this moment does not mean that that moment equals this moment historically. change across time is true. it is rude for allen west to say he's the harriet tubman of the republican party. it's not so much rude because it says that black folks in the democratic party are on the plantation. it's rude because allen west is no harriet tubman. he's not enslaved. he is not subjected in the ways that slaves were. it's important to say this is not that.

when you look at the images of lynching, i want you to remember that you can almost always see the faces of the lynchers. you can see the faces because people who were in the public lynching did not need or care to turn their face away from the cameras. they were not ashamed. there is a moment of progress that occurs even when a lynching still occurs, but people turn their face away from the camera. it doesn't mean lynching didn't occur, but shame over racism is a kind of progress worthy of marking. freedom is not slavery. the current industrial, prison industrial complex is horrible and not jim crow. it is something different and worthy of new theories, but all of that still requires us to know the his cor call moments from which we emerged. when it's call thed new jim you, it's to point to a particular way of engaging with the state,

and the state subjecting of black bodies. not because it is jim you, but because we learned something about it from studying jim crow. we're not in reconstruction. we are not in redemption. there's an actual african-american president. i can stand here and give this lecture without fear of reprisal. those things are real, and yet to remember that our country comes from somewhere i think is a critical moment in us engaging in this political moment with more history. thank you. [applause] [applause]

[applause] >> those of you who have to leave right now, please do so quietly out of respect for people who stay behind for the questions and answers, and for those of you who do, the ushers will collect your questions in writing, and we'll do the best we can to represent them. if we begin, if i can take the privilege of the seat, you mentioned president mcdonald in celebration of the succession period. within a fairly short period of time because of the work of ed ayers and others, mcdonald issued an apology for that statement. i guess my question to you is given all the misstatements of fact and this sort of rosy

recollection, are there enough players at play, and is there enough light on them that there is a response to these things that has effective traction in the public consciousness? >> i think this goes back to my point about the -- that this moment is, of course, different and needs to be celebrated and recognized as different even as we remain in struggle around these questions. the fact that we are appalled by it, the fact that it makes national news in a way that leads so many americans to pause and say, wait a minute, that's -- it's inappropriate for us to talk about fighting for the confederacy as an equally patriotic choice as fighting for the union. it's inappropriate to erase the lives of black americans or pretend slavery was not a part of this. i think i want to always be

careful about celebrating resist ens of itself because the resistance is there as a requirement over and against the challenges, but i think we're clearly in a very different sort of moment of empowerment now than we would have previously seen. that said, elections matter, and although a news story like mechanic donald's -- mcdonald's appraisal confederacy month gets exposed, the fact that the daily grindings of the general assembly often don't, and those minds are not exclusively cultural. they have very, very real policy implications that we often don't pay as much attention to so the election of someone like mcdonald, the revelation of that con fed ray nostalgia in mcdon's own perspective impacts the policies of the

commonwealth in the state. >> can you respond on why the south perpetuates the civil war nostalgia? keeps fighting the civil person. seems to this native new yorker who adopts the south as a home, seems like that's going on. >> it's definitely not just the south. i mean, the south has an engagement that is more both -- it's more imminent and more visceral than you say the war or after the war in most places. you mean world war ii? but when you say the war or after the war in many parts of the south, you are referring to the civil war, and so that, you know, that's sort of part of the culture rhythm of the space, but, again, i have been most frightened when i have seen the stars and bars, the rebel flag

displayed in indiana and in down state illinois. actually more afraid when i see it there than when i see it in south carolina in part because in illinois or in indiana, because it's not part of any historic moment of specificity, it's only about a kind of aggressive racial statement; right? when they wear it, they wear it with mixed, difficult, messy meanings, but when it's flying out of a notre dame dorm room, then it just really feels like it's just about sort of one thing. the sense for me of the need, though, of the south to think of the confederacy as an equally patriotic choice, i believe, is about shame. you know, post world war ii

germany is fascinating study in how a defeated nation with a moral and ethical dilemma addresses the problem of national shame. we were in germany during the world cup last year, and people kept apologizing to my husband and to me for flying the german flag saying we don't normally behave this way. we don't normally fly the flag this way. it's not an act of aggressive nationalism, it's just about the world cup. of course, americans are pretty aggressive flag wavers and usa chanters and that thing, so i didn't notice it as troubling or problematic, but for my german hosts, there's still a sense of what it meant to be shrouded in a kind of national german chape in a post-holocaust, post-world war ii europe. part of the way that the defeated confederacy dealt with its collective shame around the

loss of that war was to revise that history as though they had, in fact, not lost it. if they had lost it, that it was a great injustice to have lost the war. it's part of why slavery gets written out of the story because you don't want to say it's really too bad you're not my slave anymore. instead you say it's too bad we no longer have this place where we can celebrate this particular culture. for me, it's about a profoundly unresolved regional shaming, and it's a regional shaming that, by the way, continues repeatedly. we keep shaming the south. that's one of the reasons i started the new center in the south is the idea that every meaningful political activity occurs between dc and boston, and, you know, if it's west of the hudson, it might as well be

california. if it's west of the mason dixie, it might as well be part of brazil. [laughter] there's a back wardness, and wisconsin is the center of labor stripping rights; right? we don't talk about that as a med west problem. what's wrong with the midwest earners. however, we continue to shame the south in that way. there's several questions having tide with hayes tildon, and can you familiarize people with that? >> sure. i was not sure how much the real historians had done on this, so i glossed it a little bit. from the end of the civil war until the election of 1876, the union armies were occupying the former confederate states.

in their occupation of the former confederate states, they were ensuring the black citizenship was protected, that black men could vote, that black men could hold office, that some nominal levels of integration were beginning to occur, even some integrated populist political movements were beginning to occur in the late 1860s and early 1870s because, of course, there were many, many white poor workers, farm wormers, who did not benefit from the system of slavely, and so in a new context of freedom begin to imagine economic solidarity with formally enslaved people. in 1876, you had basically the -- something very equivalent to the bush-gore election of 2000, a contested election with the question of who had truly won this. had the republicans won it? had the democrats won it?

of course, in this case, the democrat is the party of the confederacy. the republican party made a choice at that point to compromise and allow that as long as their candidate, hayes, was allowed to accept the u.s. presidency, they would do so under the condition of ending reconstruction in the south, so in this moment, it was not clear who'd won, the republican party cut a deal, and the deal was let hayes take the white house and he will withdraw union troops from the u.s. south and let you return basically to a state of jim crow. from 1877 on when hayes took the white house, the end of reconstruction, the embed of that project -- end of that project of the union armies in the south begin to see the imposition of jim crow, so gym crowe does nots start in the 1860s or 1870s.

it doesn't even start in the 1880s. it's really in the 1890s we see the imposition of the jim crow laws, of the local former confederate states pushing to see how far can we go? how far will the federal government left us go in loll -- let us go in rolling back the voting rights and the economic rights of these new black citizens. it's why there's plesiv ferguson fee fining separate, but equal, accelerating this process of jim crow so that by 1905 in most of theist south, you have a fully segregated by law system that does not get overturned at least in the courts until the 1950s and in practice really until the late 1960s. >> i don't know how you do this briefly, but here you go. property and voting rights for women, black and white, took a backseat to abolition in the

civil war, and understandably so, but women played a major role in the anti-slavery movement as frederick douglass did in the women voting movement. how do they interact historically and politically? >> right. [laughter] okay. well, you know, it's so interesting to hear the question phrased in quite that way. you know, i talked a little bit about the dubois double consciousness of blackness and americanness, but they never imagined the complications of gender overlaid across those other identities, and rarely thought very much about class or geography or those questions. that's not completely fair, but in -- i guess there's a few things. no one's hands are entirely clean on the question of the intersection between -- i'll phrase it this way, white

women's rights and black rights, and i don't want to call it civil rights because civil rights is the broad category that's everybody. that's the whole, you know, they are civil rights because civil rights are rights about who we are as citizens under the law, and so women's rights are civil rights. it's just the civil rights movement of the mid 20th century sort of created a same where we think civil rights focuses exclusively on race, but at every point, i think this goes back to the point about the federalist papers. we are engaged in political processes. they are not kind of pure ideological movements where, you know, sort of coming forth from the minds of good people are new policies. at every point, white women as in their engagement for suffer raj were trying to think about the arguments they needed to

make in order to get suffrage, and there were points at which they made profoundly troubling racial arguments and racist arguments in their efforts for suffrage saying how dare you give the vote to these beasts of burden and not to your daughters and wives? it's a reasonable argument, but troubling; right? [laughter] similarly, those who were fighting for universal male suffrage often made those arguments in lang that on the one hand, you know, we wanted the extension of that universal male suffrage, but was made in these women languages around suffrage. the -- this story about how the 15th amendment becomes an amendment just to extend suffrage, universal male sufficient -- suffrage and not women suffrage

is also reflected in our current politics around the painful process of the hillary clinton-president obama primary fights, and the ways in which the hillary clinton-obama fights forced us to ask who is first? whose turn is it? who's next? i mean, oh -- [laughter] like we just never really imagined -- let's give it up for the white guys. no more turns for them. [laughter] [applause] there's sort of a consistently a notion there's limited resources that all the marginal groups have to battle together. i'm going to very quick point about the supreme court here. please tell me justice o'connor is gone. [laughter] i do a little thought experiment, a little thought experiment with my students, and we were doing this in the context of the presidency.

when i was doing radio this morning, i was asked if i thought there was a black president. i don't like the presidency that much. it's not a powerful office. i had not dreamed of a black president. i got excited about it, but not something i was striving for. my fantasy the supreme court. here's my fantasy. it will tell you a bit where our limitations on imagining citizenship are. i just want you to remember that, of course, the supreme court operates on a basis of decisions now always have to reflect back on previous decisions; right? that's the fundamental theory of the courts, which means that when we think about court, we can't think about it in it contemporary moment, in a snapshot. the court is always the entire court going all the way back to the beginning forward; right? that is the court. it is the accumlation of all of those decisions, so if we were to think about gender parody on the court; right, that cannot be

achieved by half the court being female. gender parody would have to be the entire court being female for some 100-plus years. [laughter] [applause] and i make no assumption that in all -- that it an all woman court has any particular view point. let me be clear that that would not create progressivism or something. women are diverse as men in their interpretations, but the idea that we could leave women alone in a room with no grown ups to make decisions -- [laughter] right? about the constitution, but i'm going to push you. i'm going to push you because i'm not going to allow you to leave this court in your mind just as a court of all women. i want you to make every woman in the court black and la latino. [laughter]

i want you in your heads to imagine what it would mean for 100 years to have a court of exclusively women of color, and then make all those women gay. [laughter] and if that seems like the craziest nuttiest thing you've heard, remember that our current constitutional interpretations rests and reside on the choices made by all white male presumably heterosexual courts, that's exactly precisely the america we live in, and our inability to do anything other than to imagine that is a funny thought experiment is indicative of the fact that we are not quite prepared to say that queer women of color, for example, are equally capable of exercising citizenship without oversight. >> is -- [applause]

as tempting as it is to end with that -- [laughter] there's a point here that requires clarification. this question is are you suggesting the 14th amendment gives the executive branch of the federal government the unilateral authority to incur debts? would you clarify? >> i'm not actually. i thought president obama using the 14th amendment to raise the debt ceiling was an impeachment battle waiting to happen. in fact, i assumed that the goal was to get president obama to do that so that impeachment proceedings could begin. [laughter] in fact, when president clinton, who i respect for a ton of reasons, came out and said i would not hesitate to use the 14th amendment, i said, of course you wouldn't. [laughter] because whatever you think about president clinton, you have to appreciate this man was impeached and did not leave. he was like so what?

[laughter] i work here. [laughter] so i actually assumed that if president obama had -- there was a lot of call, use your spine, go ahead and do it, but i assumed had the president done it, impeachment articles would have been brought by the house. i don't think the president would have been removed by office by the u.s. senate, but it would have allowed for more weapons of mass distractions so we would not be talking about jobs or any of those kinds of things. i would leave whether or not the 14th amendment grants that power to constitutional interpretation, but what i would suggest is that clearly part of what the 14th amendment is doing there, even as it is defining citizenship, individually for american citizens, it's also making a claim about the responsibilities of the state,

vis-a-vis debt, now black americans that involves executive power is another question, but it certainly says the state, our collective identity, has a responsibility to pay its debts. >> ladies and gentlemen, lee -- melissa harris-perry. [applause]

>> the supreme court's new term

began on monday. today, supreme court justices scalia and breyer were on capitol hill to discussion the constitutional role of judges. they were before the senate jew judiciary committee for a little less than two and a half hours. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations] >> good afternoon, and first, i just want to express my appreciations about justice scalia and justice breyer being back here in the senate judiciary committee. when, having been there for both your confirmation hearings, we didn't have this great room at that time. i also want to thank all the students who are here, and i know when i was at georgetown law school, i would have loved to have done something like this. we have scores of students. we have other americans who are attending this hearing,

following the procedures over the internet and on television, their interested in hearing what i hope is a civic-minded conversation, about the role of judges under our constitution. i believe such public discussion serve our democracy. as public officials, we owe it to all americans to be transparent about what we do in our official capacities. we justify the trust by demonstrating how our government works because it works to uphold our common values. how we're guided by the constitution and how that constitution's served over the years to make our great nation more inclusive, more protective on individual rights, and our continuing effort to become that more perfect union. as the great chief justice john marshall acknowledged many years ago, our constitution is intended to endure for ages, and

consequently to be adapted to the various crisis of human affairs. in recent months, there's renewed focus on the constitution almost every week that i open the newspaper or see electronic posting that involves some radical invocation of the constitution certainly differs from what i was taught at georgetown law center many years ago. it can be someone suggesting congress gets rid of the judges if that strikes our fancy. it might be the assertion of the three branches of our federal government are not of equal importance under the constitution, or even the assertion that the fundamental charter was drafted solely to limit the federal government's ability to solve national problems. these comments show the need to increase understanding of our democracy. that's what gave me the idea to

invite two of the nation's leading juror -- jurists to speak with us about the role the constitution plays. i know in the court, both chief justice roberts and scalia remark the fundmental genius of the constitution is the separation of powers. the legislative, executive, and judicial branch have different powers, limited and checked by the other branch, and the three branches interact frequently. we recently observed the 22ndanniversary of congressional enactment of the jew dish ri act establishing the supreme court and the federal judiciary, and we in the senate have an obligation to provide our advice and consent to the president to advise him to fill the vacancies, and we're working diligently to address the crisis

the the chief justice highlighted in the annual wort, and i thank the senator from iowa for his help in that regard. we worked to pass legislation recommended by the judicial conference of the united states in order to help the third branch operate fairly and first first efficiently. the judicial branch, including the supreme court, decides cases to resolve controversies in accordance with the rule of law. called upon to interpret applies to congress and review acts of the other branches and determine whether those acts violate the constitution. in the rare occasion, court decisions can be overturned with legislation or with an amendment to the constitution. now, many of you remember four years ago, i invited justice kennedy to appear before the committee to discuss judicial security and judicial independence. it was a great day.

the appearance renewed a tradition of justices testifying before congress in matters other than their appropriation requests. it included appearances by chief justice taft, chief justice hughes in the 20s and 30s and justice jackson in 1941, among others. i would note to my friends who think i remember those, and i assure you, i do not, but fortunately, the shave found -- the staff found them. ..

they demonstrate a profound respect for each other. that's also the exam of the ranking member and i have tried to achieve in their together in this committee. the american people expect the government to work and that requires us to uphold our values. we all need to work together to pull the predictable rule of law for liberty and prosperity to thrive. let me conclude with the spirit

of liberty is the spirit which is not too sure that it right. the spirit of liberty is the spirit which seeks to understand the minds of the men and women. that is the spirit reopen today and again, i cannot tell you how much i appreciate both justices for being here and i will yield to senator grassley and then we can get to the witnesses. >> thank you mr. chairman for holding this important hearing. i appreciate your efforts to secure the testimony of our distinguished witness is. this hearing will be an enlightening experience in which we will discuss the role of judges in our constitutional system. and of course, this is a question as old as the constitution itself and will always be debated. i welcome each of our witnesses and for you, justice breyer, you were to go right on here since usurped a long time as chief counsel of this committee.

i remind you of your statement in your recent book quote, criticism of judges and judicial systems -- that they start over again. >> you better get it right. >> criticism of judges and judicial decisions traced back to our founding. it is a healthy in any democracy. i hope you will feel that way the end of the era. [laughter] we appreciate you did not have to appear before us in that your schedule is very busy for both of you. justice scalia, i'm also glad to see you here today as judge poser recently remarked, you have quote, unquote a real flair for judging. that is an understatement as i see it. he was much as anyone had strongly advanced traditional views of the judges rule under the constitution as to interpret the law according to the attacks. for my own part, i believe that the role of judges under the constitution is an important but

limited one. unless the constitution provides otherwise, the people through their elected representatives covering themselves. in determining the meaning of the constitution, judges are to apply the intent of the framers of that is the extent of the limitation of self-government that the people have agreed to impose on themselves. when judges change the meaning of the constitution and create new rates are great government powers that was not intended to have come at the reduced the rate of people to govern themselves through the representative government process. historically, these are the circumstances in which judges in their decisions have been fairly criticize. it is rare for a sitting supreme court justices to appear before the senate judiciary committee, so i think both of you for sharing with us. thank you very much.

>> thank you. you know, these two distinguished jurors have a lot in common. both received by degrees from harvard. both service associate justice of the supreme court. prior to confirmation, both are well respected administrative law scholars. they are both elevated from positions of the federal appellate bench near justice breyer is in the first circuit. justice scalia on the d.c. circuit. and i have one -- one in the pew here is a chance to put up for both of you in the circuit court in both of you on the supreme court. and we were there for the assurance of times. now, despite the different design constitution interpretation, they were confirmed by a whopping margin. in the past they've agreed on the importance of president and judicial independence, respected

democratic decision-making. justice breyer has been on supreme court for seven years. justice scalia a quarter of a century. and i understand it's a youth who you want to go first. and i think i just got the word from justice khalil and his favorite to practice law again, and this need. so justice burger goes first. [inaudible] >> i will go first and introduced the question as we see it. we're both very glad to be here, particularly because they did work here, which i loved, but also because you have invited high school students, college students, law school students and we both talked to those groups of students a lot and we want to do that. and the reason we do in special part is because there is a modest step system and an

assistant about governments in the united states. and i'll say to students, i understand that. and probably some of that is justified, but if there's too much of the, the government just won't work because you are a part of the government. and if you're not going to be part, we don't have a government. how can i tell them not? how can i do not bid on this? i am a judge. you know, i don't run for office. it's hard to get peoples attention on a general question like that. but my day consists of trying to explain my institution. what is the day to? what is it that justice scalia does? what do we do that affects the students in the have to explain to their parents into letters? the way i put the question and this is really only going to say first is how it into the question. i think for my traditional point of view, i want to tell people why may be taken up our institutions support. so suppose i have the attention

of a man or woman who is going going into a supermarket. now that it's tough to get their attention. that woman is pretty busy. they may have two jobs. they may have a growing family. they have bills coming in every month and they don't have to much time to listen to judges. so suppose they get their attention on this question for just a few minutes, what would i say? the first thing is for question. i say have to tell you what the question is. the question is the nine of us are not elected, but is it any democracy and we do decide matters that will affect you. so why shouldn't people who are not alert did have that authority? and it's worse than that because if you look at why hamilton gave us the power and why the founders gave us our to set aside a lot of congress contrary to the document of the constitution.

she reached under the 78. she may be asleep by this time, but i have to get her attention. and say in federalist 78, here's what he says. he says first, look at the document. it's a great document. and it is. but if nobody's going to say when anybody else goes beyond its boundaries, let's hang it up in a museum. let's put it in the national gallery. he didn't say the national gallery because it wasn't else at that time. nonetheless, you understand the point. somebody should have that power. who? the president? the president could become a tyrant. what about congress? congresses select it. he said yes but the advantage, but that's also the problem because congress will pass a law because it's part of there. this document gives the least popular person in the united states the same rights as the most popular. are you sure congress having just passed the law will turn

around and say it's unconstitutional when it's very unpopular to do so? but here we have some judges. they are certifier kratz. nobody knows who they are. fabulous. this has something to do with law, does not? they don't have the power of the person they don't have the power of the sword. wonderful. they don't have much power. in addition they are sort of judges and it's not congress and that the president and a stuffed bear. atheneum chromosphere, we are not alike good. we are supposed to decide if that are unpopular on some occasion and you know what? don't tell anyone. we are human beings and we may be wrong. i do think the majority is wrong and so does justice khalil. and we can't rewrite it or were on opposite sides. unalike day doing unpopular things and quite possibly wrong. why should you ever give us your

support and that's the question and i get that not just from people in. i get that question from people all over the world. there are judges who come to visit, latin american judges to reach an a woman chief justice is gone and she posed that very question. she says why do people do what you say? have henry the fourth over here it's kind of hot first question. i can call spirits from hearth process so can i., so can any man. but what a company to call them? i have to give a synopsis of history. all i was doing in these four minutes was sketching out the question and then i'll turn to my colleague who can address that or anything else you would like. >> thank you, mr. chairman, members of the committee, happy to be back in to the judiciary

committee where i started this pilgrimage. i'm going to get even more fundamental than a good friend and colleague like him, i speak to students especially, law students but of those high school students quite frequently about the constitution because i feel that we are not teaching it very well. i speak to law students from the best law schools people presumably, especially interested in the lot and i asked him how many of you have read the federalist papers? well, not just number 48 and the big ones. how many of you have read the federalist papers cover to cover? never more than about 5%. and that is very sad. i mean, especially if you're

interested in the constitution. here is a document that says that the framers thought they were doing. it is such a profound exposition of political science that it is studied in political science courses in europe. and yet we have rates a generation of americans who are not familiar with it. so when i speak to these groups, the first point they make and i think it's even a little more fundamental than the one that stephen has just put forward. i asked them, what do you think is the reason that america is such a free country? what is it in our constitution that makes us what we are? and i guarantee you that the response i look at and you look at this from almost any american, including the women that he was talking to at the supermarket, the answer would be freedom of speech, freedom of

the press. no unreachable searches and seizures, this marvelous provisions of the bill of rights. if you think that the bill of rights is what sets us apart, you are crazy. every man a republic in the world has the bill of rights. every president for rights as a delivery. the bill of rights of the former evil empire, the union of soviet social republic says much better than ours. i mean literally, it was much better. we guarantee freedom of speech. they guarantee freedom of the speech at the press of demonstrations in protest and anyone who is caught criticism of the government. that is wonderful stuff. just words on paper. what are framers would've called a parchment guarantee. and the reason is that the real

constitution of the soviet union, think of the world constitution. in main structure. if a person of a sunk cost dictation. the real constitution of the soviet union, which is what are framers debated the whole summer in philadelphia. they didn't talk about the bill of rights. bill of rights. that was an afterthought, wasn't it? the constitution of the soviet union did not prevent the centralization of power and one person or in one party. and when that happens, the game is over. the bill of rights is just what are framers would call a parchment guarantee. so the real key to the distinctiveness of america is the structure of our government. one part of course is the independence of the judiciary. but there's a lot more.

there are very few countries in the world, for example, that the bicameral legislature. lehman has a house of lords for the time being, but the house of lords has no substantial power. they can make a comment pass a bill is second time. italy has the senate, it's honorific. very few countries have two separate bodies of the legislature equally powerful. that's a lot of trouble as you gentlemen know to get the same language through two different bodies like to be in a different fashion. very few countries in the world had a separately to chief executive. i go to europe to talk about separation of powers. all i'm talking about is independence of the judiciary because the europeans don't even try to divide the two political powers. the two political branches, the

legislature and the chief executive in all of the parliamentary countries can chief executive this legislature there's never any disagreement between them and the prime minister is there a sometimes between you and the president. they just keep them out. they've been no-confidence vote and negative prime minister who agrees with the legislature. in the europeans look at the system and say well, it passes one house. it doesn't pass the other house. sometimes the other houses in the control of a different party. it passes both in this president who has a veto power because it can look and say it is gridlock. and i hear american famous nowadays. there's a lot of it going around. they talk about a dysfunctional government because there is disagreement. in the framers would've said yes, that's exactly the way we set it up. we wanted this of the

contradicting power because the name -- the main tale that beset us as hamilton said in the federalist when he talked about a separate setting, he said yes it seems inconvenient, but in his matches main tale that beset us is in excess of legislation that won't be so bad. this is 1787. he didn't doubt in excess of legislation was. so unless americans can appreciate that and learned to love the separation of powers, which means learning to love the gridlock, which the framers believed with beat the main protection of minorities, the main protection. if a bill is about to pass that really comes down hard on some minority, they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system. so americans should appreciate that and they should learn to that the gridlock.

it's there for a reason that that the legislation that gave that will be good legislation. and does conclude by a main remarks. >> you may not get total unanimity on this issue of the gridlock, but i found listening to both of you to be fascinating and a note to my -- for anything that might go wrong this week and all of this makes up for us just having both of you here. so i do appreciate that. justice scalia, the court goes off and refused laws by congress. i apologize for the voice. allergies. if you want to find out whether comports with the constitution,

do you have a different standard if it was a law that passed by the submissive margins are about the passes overwhelmingly? allows the question both of you. >> no commissary. a law is a law. it meets the requirements of the constitution having passed both houses in either been signed by the president are having been passed by two thirds of lucido, it's a law. and what we do this law. justice breyer. yes? >> i agree. >> and justice scalia, under our constitution, what is the role if any that the judges play in making the budgetary choices for determining that the best allocation a taxpayer resources that? is that within their proper role or is that somewhere else? >> you know it's not within our proper rules, mr. chairman. of course it's not.

>> is a worthwhile question for this reason. but we try to talk about this document general, what i say he'll have some version of what is this document to the constitution? i can't tell you in one word, but i can tell you in about five. it creates a structure for democracy. that's the first part. the full seven articles. it's a structure so people can make a decision through their representatives and decide what kind of cities, towns, states and nation they want. but it's a special kind of democracy. it guarantees basic and fundamental rights. it is sure is the degree of equality. it does as justice scalia has emphasized, separate power both vertically come a state federal and horizontally, tree branches. the no group of government officials can become too

powerful. and it insists upon the rule of law. so now we have five basic inks and i tend to think the rest of it elaborates this five basic point. and i think probably justice scalia and the others are not in disagreement that level very rarely. so what people don't understand very often in given those broad dungarees in this democratic process, where the boundary patrol. did you ever listened? based recent radio program called sky king of the commodities, something might not. >> before my time. >> is hiking in sergeant preston. >> sergeant preston of the yukon. it was cold. it's on the boundary. it's very cold. life on the boundary is tough and we're in a sense the boundary patrol. and those issues are very tough. there's a choice inside outside what about prayer in schools, what about this or that? they are tough ones and what people forget is just what you

are emphasizing that the budget question. then inside those boundaries, there is a vast democratic space, where it is set to the average american to decide what kind of cities, towns, state and nation year she won. and those decisions are not ours. all we can say with a form like this is please participate in that democratic decision-making, which is not their institutional job. >> excuse me. with this nylon justice scalia's face, i think he's probably anticipating the next question. i say we do first, justice breyer in your book making democracy work, you describe how the system replies in the public confidence because it is neither the power of the purse for the sword. you both alluded to earlier.

and so then people ask, is the rule of law predictable? because america's reliance on certain programs and so forth. do you feel the public's confidence is affected when judges overturn long-standing precedent but several expectation that they have something that people relied on for generations and then suddenly and so returned. what does that do to public confidence and what does that do for the rule of law, and this sort you have however a question of what confidence the american public has pierced the justice breyer, joined to try that first? >> are not committing there's no definite answer. which he gave his reasons against overturning tempting or

strong reasons. the plessy v. purpose then, separate but equal should've been overturned in brown v. board of education. we said no more racial discrimination is absolutely right to overturn it. so i think your advice is good means that this judge has to remember not to match, not too fast, not too often. be careful. people have relied on formal outcome of that you cannot say never. >> justice khalil. >> yaakov part of the jurisprudence of my court and all federal courts is decisive. it's not absolute rule, but it is a subject should be given careful attention. all federal courts have given starry decisive. much more weight in statutory questions. it's very rare that my court would overrule a prior decision on a statutory point. the reason being if we got that

wrong, you can fix it. you can amend the statute. the one we did something wrong with respect to the constitution, there's nobody that can fix unless you're going to go with the huge trouble of! and a constitutional amendment. throughout our history there's been stare decisis, that beginning with the marshall court, it's been less strict in the constitutional questions than it does in statutory questions and i think that's as it should be. >> of course it's easier for the lower court that there is -- the district court is abiding court opinion that the circuit court and the supreme court. but the buck really stops with you. now you talk about amending the constitution. the 13th amendment i read a disdain of slavery. nobody could think that having.

now come the 15th racial discrimination, and teams, giving women the right to go, 24th young adults and so on. injustice glia, -- justice scalia, we should not mess with the constitution by amending it. since i had been here in the senate, i have seen probably 1500, 2000 constitutional amendments proposed. it's probably even more than that. you get them from things that i think of board and a small son would not have thought of that name because it is so ridiculous. some have serious issues, that

is meant in that country's interest to be tampering with the constitution that can be avoided? >> well, no here this is another respect by the way in which we differ from most of the countries of the world. many foreigners can't understand our affection for the constitution. it's no big deal to amend the constitution and most of the countries of the world and most of them all you need is to have the legislature, a unicameral legislature the amendment. then there has to be an intervening election and then they have to pass the amendment again. >> but it's on the second statue. >> except that it has to be passed twice at an intervening election. ours is very much more difficult to amend. and you are right. i have said that the good thing. indeed i said that provision, i am sure i will think about amending this demon that

provision because that sets a very, very high pool. but that's not going to happen, so i'm not worried about it. >> justice breyer, my time is right now. but what you to respond? >> i tend to agree with that. >> is quite a surprise to the rest of the court. >> we are unanimous in our court 40% of the time. surprisingly enough, isn't always the same five in the same four. and you should be suspicious if we don't have a lot of five, four decisions because the main reason we take a case is that there is a circuit conflict below. that is very good federal judges who has been appointed the same way justice breyer and i were appointed. says something -- we would smell something wrong if they write

these disagreements below when the supreme court always comes out nine to nothing one way or the other. you should dispatch a lot of those decisions. >> i will start with justice breyer and a couple questions based upon a recent c-span interview that he remarked that all church edginess done entirely about politics, you would quote, not save zero politics never. >> that's one of the hardest things to explain. and that is part of what i've written about in this book. there were two great questions i want to get across the audience. first is the one we mentioned. when you call them, what they come? why is it that americans over the course of 200 years have begun to have responded to the supreme court? there's good stories and not, but he put that to the side. the other thing i put this way is a saying that you're being very polite, but i else i know a lot of you are thinking this. you are thinking in those top

five, four cases that we are junior league politician. and i say that would be ridiculous. for one thing, that's not the job. i mean, didn't hamilton give us a chat because he thought we wouldn't be politicians? rica case lake drive scott, one of the worse, probably the worst ever. they are, the most you can think of why they were doing this is they were trying to take politicians. judges are terrible politicians. if you want to get this to politicians come and give to congress. so, how do i explain? i explain it this way. i say in the 17 years since i've been a judge, do i see a decision turned on political considerations? i did work in this committee. i don't think the politics consists of who's got the votes? of the democrats or republicans? is popular, is going to an election? i have to say my answer is never and i know you'll think this

case are that case were that strong. i need an hour to explain it, but i think i could bring you around. so what about ideology? argue, you know, none of smith's free enterprise? marxists, maoists troublemaker? what good in general for the world? if i think i am thinking of it that way, i know i'm doing the wrong thing. i can tell you there is a third thing. i was born in san francisco. i went to lowell high school, a public high school. i went to the university out they are. i have lived the life i've led. and anytime you have 40 or 50 years in any profession, you begin to formulate very, very general views. what is america about? what are the people of america about? how in this country to his blog relate to the average human being? how should it? at that level of generality, people may have somewhat

different outlooks and there is no way that those different out looks can fail to influence them some. and that is a bad thing? no, i think it's a good thing. this is a very big country. we have 309 million people, 308,000,002 everyone's surprise are not lawyers. they have many different views and defeated king, not a bad thing that people's outlook on that court is not always the same and i same and i mean that's very, very basic ideas of judicial philosophy if you like about the country and its people and about the law and how judges are there to act in what they are to do and what not. so that is what they meant by that word there. >> and i will start with judge scalia and my second question. why would it ever be appropriate for american judges to consider forward mark in interpreting the meaning of the united states

constitution and justice breyer can respond as well. >> him senator, i'm afraid we are getting beyond what i had planned to discuss with you gentlemen, the role of the course and we are getting into the manner in which the court go about deciding their cases. i have a few one night and justice breyer probably has a different view. but i have prepared any testimony on that and i would rather -- i regret their past. >> of course the finish and i think my views on that issue i know. but that is not the level -- >> let's move on and. >> to both of you, discussing the supreme court justice brandeis stated the most important thing we do is doing

nothing and to what extent do each of you agree with that? >> depends on the case. it is important, yeah. i don't know if it's the most important. i'm not sure what he was thinking of. what do you think? to >> well, yes, i think the normal state of things is rest. these things alone unless there's reason to change it aired a search on the executive branch for a while and when i was there, there is something that came to be known as the moscow option, which sounded like it ccia stafford. it was the metro man named mike moscow was one of the president's insistence that he observed that whenever action memos went into the present, they'll escape the president three options. number one, to ask. number two, do the opposite effects. and number three, do it whoever

wrote the memo wanted, which is somewhere between acts in the opposite effects. and moscow noted that you will never see among the options do nothing and that very often is the right answer. it is certainly the case for coors. don't make waves unless there's a reason for change. unless that the congress has done or what an agency has done is wrong, you leave it alone. >> what your question brought to my mind was there is some paint and tocqueville, which shed light students to read tocqueville, to because it's amazing in 1840. you think i got a verdict yesterday about this country. one of the things he says, which really stuck as he says whenever i come to the united states, the first thing that strikes me is the clamor. but what is he thinking of? everybody is screaming at each other is what he meant. what he really meant is there to be named talking about things.

they are disagreeing. and he thinks that's good and 92. you have a really tough problem sometime. let's imagine when your trying to figure some bill that has to do with privacy and free expression. and they're all kinds of tensions right there with the internet and the new methods of communication and twitter and facebook in people's privacy and you're more familiar than i appear to be decided is this country? the general word i typed on trainees to touch about it is probably not. people talking this apers, talking classrooms. they talk and articles. they talk in small groups. they talk with the least men, firemen. they talk with civil liberties groups and everyone under the sun and they began to debate and get into arguments. eventually you have hearings into site may be an agency should do it.

maybe we should have his statue. it would change her mind five times. individually, things will settle down. but i say about my court if it's really wonderful if we do not get involved until it settles down because their only job is going to be to decide if what you decide is in the boundaries and it's going to be a subject or we will know less about it than most americans who have gone in debt so be careful of intervening before this big debate, disclaimer has a chance to take over, take affect on the screen, change, trianon, try it all. that's really the wisdom that underlies this view but don't decide to much too fast. >> we do a lot of nothing. i told you that the main reason we take a case is because there's disagreement below. but if there is no disagreement well, we don't get involved. we don't go prowling around

looking for congressional statutes that are unconstitutional. it's only when there's disagreement about that we take a case with rare exceptions. if the lower court has found one of your last be unconstitutional, will take that even though no other court has held the opposite. except for rare situations like that, we let sleeping dogs lie, which is the way one should live his life a thing. [laughter] >> thank you. >> thank you, mr. chairman. justice scalia come in your opening remarks you talk about how brilliant our system is, our constitution and the kind of disagreement it provokes and how difficult it is to get them stand as the greatness of the american constitution. in contrast to so many other countries. and yet, they are described now by people all over the country of dysfunctional, as unable to get anything done.

the level of dissatisfaction is that to about 80% or 90% among the american people because they say we can't get anything done, that the system doesn't work. how do you respond to that? >> well, i suppose there is a point at which you do reach gridlock. however, i think the attitude of the american people and this is the point i was making is largely a product of the fact they don't understand our constitution, that its genius is precisely this power contradict in power, which makes it difficult to enact legislation. it is so much easier to enact legislation in france or in england. but you know, the consequence of that if you have swings from one extreme to another as the legislature changes. it doesn't happen that much here. largely because of the fact that only ones son which there is

general agreement as a general matter, only those laws will get through. so you know, this is one of the reasons why we have to educate the american people as we have not been doing for decades about what our constitution produces and what it is designed to produce. >> we've discovered the same problem sandra o'connor is always talking about. we are limited and probably you are, but she's out there nonstop trying to get civics restored to the high school curriculum. i mean, what do most people think about taking a case which you were just discussing? we did a survey, those who know anything would say they sit would say they sit up in that big billion fantasy dean acheson subject. let's decide it. that's very far from the truth. we have a system messier

described. so what we try to do is talk to people. brendenburg does that come the foundation. they're in 55,000 classroom and sandra and i have sometimes you have discovered that it useful to get a film taken of a case or something, a something in the past anonymous comment and try and get it in high school. trying to do that with carnegie. you have a very different institution, do you do try to communicate with the public quite a lot and all i can say is it's probably harder for you than it is for us. but to get across the idea that the student today has to know how government works, they have to know something about their history and they have to be willing to participate. very easy to say and it's very hard to get across. >> gentlemen, as you know, you have the power to decide cases yourselves, but the powers to decide which cases are going to hear. can you have sent 8000

opportunities to make decisions every year in the cases you're going to hear. last year you decided to hear 77 cases, which is just 1% or less than 1%. so what goes through your mind collect me when you decide on which 1% you're going to hear and what do you say to the 99% who don't get her? >> of the latter, we say tonight. [laughter] but for the former, you are quite brave. there are to be some rules. it shouldn't be abandoned. it shouldn't be whatever tickles my fancy. and that is why we have a general rule but unless there's a circuit conflict, you're wasting your time and your clients money to file a petition. it is overwhelmingly likely that we will not grant it. so it is not the case i assure you that we prowl about, looking

for an issue that we want to get to the core. i don't know any of my colleagues that behaves that way. i think they'll have standards. it is very significant issue on which the lower courts are divided? and for the others, i'm surprised it's only 8000. i thought of that tonight as nice house in now. by the way, when i first joined the court, it was only 4000. that's how much that is increase. so it is now a fairly large part of our job, just deciding what they're going to decide. everyone of us flexibility summaries of on the cousin of those petitions. >> there's 150 week. a member of form than the originals are back there on my shelf. and that if we sat down tomorrow the two of us come even though it's not part of your job, i'll make an initial cutting a deal be like 140 and 10. if we were there together, to cut you would make would not be much different than the one i

would make. it's interesting because this sort of speak out. and the only other thing i'll add this in the conference i know there's groups of lawyers like to see us take more cases than the other people like to take more cases in the sense us. when theater was on the court and i think she said this publicly, we've got to get more cases here. nobody's making an effort to take fewer. that's not the attitude in the conference. the attitude in the conference's there's a split. let's take it. we have room to hear more. nobody is thinking that there is in the room. >> let me respectfully disagree and perhaps you can respond. when you came on the court in 1987, you heard to hundred 77 cases that year. when you came on the court, justice breyer comment that you heard 105 cases. last year you have 77 cases. so i don't understand. the next senator, we never heard

277. when i came on the court, we are deciding about 150. and i will tell you i don't think we can decide 150 well. if you go back and look at her opinions in those days, we get an opinion in which the majority and the dissent are like ships passing in the night. they never quite meet each other. he turned to the first page and you'll see that it's a june opinion because we were rushing out the payments at the end of the term. i don't think we can do 150 well. i think we can do 100 well. and frankly i'm probably voting to take some cases they wouldn't have voted to take. 10 or 15 years ago. but it's not as though we sit down at the end of the year and say okay, let's take 75 cases. that's the best 75. that's not what happens. they trickle in week a week away vote on the ones that we've seen

what taking. and at the end of the term, they've added up to whatever they've added a two. if my standards have changed, it's only because i'm trying to take more better than i am trying to take less. i suspect that the major reason for the decline was that when i first came on the court, there was a lot of really breathtakingly important new legislation and the new bankruptcy code. title vii. and the last 10 years, there's been legislation, the very subtle effect that the two. the major generator of circuit conflicts below his new legislation because it always has some ambiguities that have to be decided by the courts. the weather hasn't been a whole lot of major new legislation committee would expect it to go

down. >> i agree with that. it's just a theory, but every word in the bill is an argument. every word he passed, there swears too can decide. so if a lot of legislation is passed, i think what the five or 10 years like you the a lot of cases in the supreme court. if you go five or 10 years most less pledges nation, fewer words, you will discover a diminished number of conflicts among the circuit. when you pass that he be a slot, then go back to her three years and suddenly you'll see lots of pbs cases coming up to it. the same is true with iraq, the immigration thing. you're now passing on a split thousands of pages that are likely to come to s. my guess is that the lag that case it will start going out. >> senator hatch and i had been sitting here trying to resist

temptation. when you mention from henry the fourth the discussion of going nowhere, you have that in your vote. i noticed it earlier. it is one of my all-time favorite quotes, usually to express exasperation somewhere. >> senator hatch. >> thank you. i appreciate you both be willing to do this. i think it's a very good thing and i know it's unusual for you and so grateful to the chairman for calling this particular meeting. and i'm particularly grateful to both of you. you are both great justices. you've been on the courts for a long time and you've decided a lot of important cases. we now have the shirt looks at a docket that's going to be pretty doggone important >> you sound happy about it,

senator. >> i'm very happy. i want you working really hard. last night and you, too, justice right here. now i remember when you are here in the committee. he retrieved it chief of staff for senator kennedy and you meant a lot to us than any mean a lot to us now. for me just say when federal judges can tour statute, they tried to figure out what we meant by what they said. legislators on both sides of the aisle would object to judges change the meaning of the statues we enact. and as you know, we even defraud not, but who knows. we might be that we'll be hearing about it. you never know. the point is that if we don't discuss clearly what we mean, it is still a meaning that counts. should the basic approach begin a different when justice interpret the constitution?

another roots, statute do not mean whatsoever judges say they need. how can the constitution means whatever judges say it means? >> in a sense, the answer is it shouldn't. when i have the statue, i think all judges in the hands attacks in the text isn't particularly clear, there are questions, they all have the same weapons. you read the text. you look at the history. you look at the traditions around the world. save habeas corpus. a lot of tradition there. he looked to the passive tense. do you look to what i call the purposes are the values and he looked to the consequences right in terms of the purposes or values. if either statute, the first thing i want to know if somebody wrote that statute. these may be hard to figure but a mean one way or the other, but

somebody had something in mind in congress and i want to find out what that is autistic to it. when you're talking about the constitution because they are words like liberty or because they are words like freedom of speech, it's not so much purposes i would use to describe it. i described that is basic values. i think this basic values and not as in the 18th century have not changed or at least not much. the values are virtually eternal, but the circumstance change. so i say sometimes when i discuss this, was justice scalia simply knows and agrees with, george washington did not know about the internet and a lot of our job is to apply the values that are there in the constitution, which really don't change or at least not much to circumstances to change all the time every five minutes and that is the receipt to do. but put at the lovely attack, which is a very good level,

should we follow those purposes in terms of the values that the framers? absolutely, yes. in terms of trying to apply it to a situation that they cannot foresee, i think you can't do that. i think you have to figure out how this basic values supplied to the world today, a world that is international and national interests of commerce, in terms of the internet come in terms of a thousand different things they receive every day. and then how much of the cc gift to women trying to answer that question is a matter that sometimes despite judges. but the need to answer it i think is a matter that unite. >> yeah, i don't agree with most of that. [laughter] in fact, i hate to say this, but i'm not sure i agree with the premise that our object is to figure out what congress meant. i think our object is to figure

out what the law says. if congress meant one thing, but enacted a law that says something else that is promulgated to the people, i am bound to apply the law. that's what it means to have a government of laws not men. and that is why i don't use legislative history. i'm glad pendergrass is gone because this is what his pet peeve is. that's why don't use legislative history, but justice breyer does. i think we are governed by laws. but when i approach a statute or the constitution, i asked myself, what do these words mean to the people to which they were promulgated? and once i figure that out, i could sleep at night. >> i think it may take a few more years, but i'm confident you will. let me just say this for people say based on what people want judges to do or on whether they like the judge's decision.

both liberals and conservatives do that. i am looking for a more principal object that job description. you know, given the title of this hearing, that's the constitution itself for anything to help define the role of judges. is there some practical guidance as a way of defining what judges are supposed to do. justice scalia? >> you want me to start? that is a hard problem. your intro suggests the point that i wanted tonight to the committee. one of the difficult things about the job that's end i have is we are criticized in the press for opinions. and of course we can't respond to decision. that's just the tradition.

but usually, the criticism in the press and the reaction of the public to the opinion has nothing to do with the. if they like the result, it's a wonderful opinion and these are wonderful judges. and if they dislike the result, it's a terrible opinion. do not want to see what the text of the statute is that was before us and whether this result is indeed a reasonable interpretation. none of that will appear in the press for words. i'll just leave the plaintiff class, with the issue was a new one. if you like the result of the great opinion, if you don't like it it's terrible. that's just one of the disabilities we operate under. and that's one of the reasons we're not supposed to advert to whether the public likes their opinions are not. we're supposed to just go down the middle and interpret the text as we think it had to be

interpreted. now you are quite right that when those who don't like one of our opinions, what college to shellacked it is some other judicial activism always consists of the court doing what you don't like it to do. i suppose there is -- i don't know any solution for it, senator. >> it isn't a solution. i mean, where both judges could be the judges for a while. we have a rough idea what it is to be a judge and we both know what we're trying to do is apply the law and interpret the law. no one at that level disagrees. on right to say how do we do that? i think i can get a little more specific before i find this agreement. and that's why mention this is the reading the text. you know, the text says fish. that does not mean kerry. he carried to sunday's finish the matter what your intent. you have to follow those words

in the this reasonable about a lot of things. in the history of air in the tradition is they are in the precedent is there in the purpose -- it may be hard to find sometimes, but sometimes it's not. and the consequences you don't all of them, but you know some do some evaluation in terms of those purposes try to do that. and justice scalia may place more weight on some of those things from a place where my rehab, but that's coming to operate on different parts of tools that we all have. and when we get into the constitutional area, i may say love, and looking to values and how they apply today. you might think he can find more in history. i can see that. i'm not quite the history is irrelevant and i don't think you say that sometimes you just don't find that much there. and so, if the question of degree and so forth. but the bottom line for an appeals court judge in this very useful bottom line is you have

to have an opinion. and that opinion is going to be based on reason. you can't prove it. it's not logic. were not computers. but i can honestly set forth my reasons for saying it's this way about it in that way. and he does the same. one of the great things about dissenting opinion of the key right to dissent or write a dissent, who pleaded. and i'll respond. because i'm not going to let him put a quote get away with that are not going to let him point out something i don't know how that got in my opinion. a better change it. as of this strengthens the opinion and ultimately they can be read by the public and they read that some of the public. and the strength they rescind its reasoning type back to the documents and tied back to the country and type that without it

thinks. but there is the basis they are for criticizing and for valid criticism invalid praise or claim of a particular judge. and of course we love it if people take the opinion at that level rather than responding simply to a press report. but i think you much that's what we see is the job. >> you know, sometimes i feel i'm back in my favorite seminars in law school. which is a lot more fun than sometimes been in the appropriations committee are some of the other teams. but i do want to move this along. just because of the justices time i'll go now to senator feinstein, just so we know what the order is. i have received this from senator grassley on the republican side as senator graham, cornyn, lee, cobra

discussions. on that side, senator feinstein coming urban, white hats and canes. senator. >> thank you, mr. chairman. thank you for holding this hearing that justice is coming thank you famous for being here. i was looking at the faces in the audience. most of them young, all of them listening and interested. i think really what it says is the fact that we have for the rule of law in this country and at that highest order of the rule of law rests with the authority think you have. and i for one and very, very proud of it and i'm always proud when i travel that america is represented by the distinction of this great court. now, i want to ask you something about the 14th amendment and if both of you could respond to it. it's simple. no state shall make or enforce

any love which shall abridge the privileges of citizens of the united states, nor thin nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. if a woman included within that definition? >> a woman as a person. i think that's well established. >> the issue is not whether a woman is a person. the issue is what constitutes equal protection. >> ra. our women included? >> of course they are included. >> well, let ask you -- >> this equal protection and you have to have unisex toilets quiet >> no, no. >> this is your quote, mr. justice. in california, certainly the constitution does not require discrimination on the basis of sex. the only issue is whether he prohibits it. it doesn't.

nobody ever thought that's what it meant. nobody ever voted for that. if the current society wants to outlaw discrimination by sex, hey, we have things called legislatures and may enact the enacting scofflaws. so why doesn't the 14th amendment then cover women? >> the 14th amendment, senator, does not apply to private discrimination. i was speaking of title vii and laws that prohibit private discrimination. the 14th amendment says nothing about private discrimination. only discrimination by government. >> i see what you met. okay. all right. if i can, let's go to justice scalia. i think in the past you've advocated a constitutional

interpretation called original as some in which the meaning of the constitutional provision is determined based on the provisions meaning in 1789. in view of authors that the government, even at the supreme court level at the practical exercise and that's -- let me just say what are trained to think. and afterwards, the cost to two shish reinterpreted for its meaning its origin to justice breyer come you've taken the position that the constitution is a living document and therefore it is just two times and changes within this government, within the time. could each of you gives us your legal interpretation of that and how you