were looking at potential catastrophe in terms of the economy. according to paulson, the congressman at this meeting were stunned by what they were hearing. after that september 18 meeting, 10 people at that meeting, members of congress went out and sold a bunch of stuff the next day. congressman from virginia murray sold stock in 90 different companies. what other members of congress who junctures in the financial site are and ended up buying shares and other companies that did very, very well. there is also a gentleman at the meeting named spencer bachus is a current chairman of the house financial services committee. ..

>> that seemed to be particularly well-timed, and he made a lot of money. his insistences that he does not trade on inside information, but to my mind if this were a corporate executive rather than a member of congress, the sec would take a huge interest in this. >> you can watch this and other programs online at booktv.org. >> next, jay wexler examines the more obscure clauses of the u.s. constitution scattered among the better known amendments throughout the 8,000-word document. this is about 40 minutes. [inaudible conversations]

>> good evening. thank you for coming out to support your local independent. my name is evan, and i'm the events director here at the brookline booksmith. i hope you guys will pick up one or our calendars. we've got some great readings lined up with john hodgeman and larry doyle next week and a night of staff recommendations later in the month. also you may have noticed we're filming tonight, um, so if you could, please, make sure to turn off all cell phones and things like that, any drum machines you may have on your person. [laughter] you can follow all of our events through our web site, brookline booksmith.com where you can also purchase thousands of e-books through google editions. as we move into a presidential election year, you can be sure to hear a lot about our founding fathers, what they believed, what they said, what they meant to say, and certain parts of the constitution will doubtless be quoted again and again. tonight is not about any of that

nonsense, it's about the other nonsense. because tonight we have the pleasure of welcoming back jay wexler, professor of law at boston university. in his first book, "holy pull baa loos," wexler explored the division or lack of division of church and strait with a strangely humorous -- he examines the foundation of our government, the u.s. constitution through its strange and rarely-cited provisions. from the state's control of intoxicating liquids to the government's ability to allow private citizens to fight pirates for personal gain. in seeking out the antiquated and just plain odd, wexler sheds new light on the constitution in all its glory, and he's damn funny too. so, please, join me in giving a big brookline welcome to professor jay wexler. [applause]

>> thank you very much. welcome, everybody. thanks for coming out in the rain to this terrific bookstore, and thank you for hosting me here again m. booktv is here filming, so when you heckle me, if you could keep your swearing to a minimum, that would be great. [laughter] i was on booktv one other time before, a connection with my first book. it was an event in new mexico which i thought went pretty well, and then a couple weeks later the event was on tv, soi pz tuned in. i was pretty nervous although i had been on television a couple of times, not in a sustained way. and about five minutes into it i realized that every other sentence i say uh like an idiot, so i'm hiding under the blankets. [laughter]

and 15 minutes into the talk i looked at this e-mail, and i got this e-mail from somebody in hawaii, and it said i wanted very much to hear what you had to say, however, your habit of interjecting uh repeatedly is so distracting that even your humor and pleasant voice did not help. [laughter] thanks a lot. that was a nightmare. what i want to do today, tonight is to explain what my book is about, "the odd clauses," and i want to spend most of my time, i think, explaining why i wrote the book and why i think it's important to know about the odd clauses of the constitution. i'll read a short bit or two, not that much, and we'll have questions and answers if you'd like. i can sign books, if you're interested. "the odd clauses" does make a fantastic stocking stuffer provided that the stocking is on the largest side and that you don't put anything else in at the same time because then it won't fit. so, um, what the book is about,

the book is about ten lesser known clauses of the constitution. i'm going to read the first two paragraphs to give you a sense of what i was up to, okay? the constitution of the united states contains some of the most powerful and well known legal provisions in the history of the world. the first amendment, for example, gives us the right to speak our minds without government interference. the equal protection clause of the 14th amendment stops the state from discriminating against us because of our race and gender. and the fourth amendment as our television crime dramas continually remind us, prevents the police from searching our homes without a warrant. i would bet in the past 20 years, several hundred books have been written about these important clauses and for good reason. this book, however, is not one of them. instead, this book will shine a much-deserved light on some of the constitution'slesser known clauses, its crazynd les. to put it another way, if constitution were a zoo and the first, fourth and 14th amendments were a lion, agiraffe

and a panda bear respectively, then this is about the shrews and bat-eared foxes. you're or in for a treat. so there you go. so i wrote about ten clauses. i had to win know it down from about 20 or 25 that i started with, i had to think about why i wanted to include certain clauses and which clauses i wanted to include, and i decided on ten clauses that promote or illustrate key points about our government or our democratic functions in very specific ways, and in ways that i thought were interesting to write about and to read about. and so i'm going to tell you what those clauses are pretty quickly before turning to why i decided to write the book. so there's the incapability clause that says if you're a member of congress, you can't also be an executive officer and which may very well disqualify scott brown from being in the national guard, but that's a separate issue. second is the weights and measures clause which says the congress has the power to set the weights and measures for the

united states, so if you're ever mad that we don't have the metric system, you should blame congress. the recess appointments clause is the clause that says that president can use a recess of the senate to appoint somebody without senate confirmation. and one of the interesting questions is what counts as a recess? is it just the break in between the two sessions of the congress, or is it like anytime they go out for a cigarette? the original jurisdiction clause provides that when one state sues another state, they go directly to the supreme court of the united states which could, though it never does, hold a trial. it actually has done that a few times. like, for example, when missouri wanted to sue illinois because illinois changed the direction of the chicago river sending tuberculosis to st. louis, it had to sue directly in the supreme court. the natural born citizen clause is the fifth topic in my book. among the very few prerequisites for offers spelled out in the constitution, this is the

proverbial turd in the punch bowl. [laughter] it says you can't be president unless you're a natural born president, and it's a really stupid clause. section two of the 21st amendment you may not know about the 23st amendment, it ended prohiblght, that's section one. section two makes it unconstitutional to bring liquor across state lines, and it's one of the only two places in the constitution where an individual can break the constitution which regulates the direct behavior of individuals. the rest of it's about the government. so there are two things you can do if you want to violate the constitution, you can either engage in slavery, or you can bring a beer across the state line in violation of rhode island law. so that's weird. the letters of mark clause authorizes congress, tells congress that this can authorize private ships to fight pirates, we'll talk more about that later. title. s of nobility clause says that the government of the united states cannot accept a dukeship.

the bill of attainder prohibits legislative punishment l, and the third amendment -- [laughter] says that the soldiers, the army can't porter their soldiers in private houses without consent. a process, rather, that in the 18th century led directly to the tea party. the real tea party, not our tea party. i got the idea for this book, i got the idea for this book about ten years ago. i was working at the office of legal counsel which is a small office in the justice department which gives constitutional advice to the executive branch. it's the office which made the news when long, long, long after i left it wrote the torture memo. and even though in law school i learned a lot about the constitution, you study a lot about the constitution in law school, you only study certain parts of it. you study the first amendment,

the fourth amendment, the panda bears, the lions, etc. but at the office of legal counsel i studied, i had to deal with lots of these little odd clauses that nobody really knows anything about, i certainly didn't. one day my friend ruby -- hi, ruby -- my friend ruby was running around wondering whether president clinton could accept some sort of bauble or something from an african village or whether that violetted the titles -- violated the titles of nobility clause. and i said, ah, interesting, what's the titles of nobility clause? i don't know what happened in that case, but i decided that very day that i would write a book about these odd clauses which is something i wanted to do and waited until after i got tenure to do. [laughter] now, let me talk a little bit about why i think it's important to write, rather, to read -- why i wanted to write and why i think it's important for people to read about the odd clauses.

i was originally, i have to admit, motivated by the kind of zany, mad cap trivia aspect of these odd classes like, wow, a state sues another state in the supreme court, isn't that wacky? but my editors, my publishing house, beacon press which is a fabulous press, lovely people, they're very earnest, and they said, jay, we're not publishing a tribute book, okay? so think about why it's important to study these trivia, these odd clauses. and so i thought a lot about that issue, and i gave workshops at law schools and such, and professors came up with theories of oddness and said, well, you know, we suggest blah, blah, blah. they didn't actually say that, but in any event, i came up with some thoughts about why we ought to study these odd clauses through these discussions with people who had some great ideas about what's important about

these weird things and why people ought to study them. so here's one. i think you get a much better understanding of what the framers are up to in writing the constitution by reading the whole thing instead of just little pieces. you get a lot of insight into what the framer's purpose was. my brilliant colleague, gary lawson, made me realize this a while ago. if you read the constitution, you get a real sense for how paranoid the framers were about concentrations of power, how worried they were that people would be corrupt and all the checks and bhanses that they put -- balances that they put into the constitution in order to stop that kind of thing. for example, there's article i, section six says that members of congress can't be arrested going to and from the congress, going to and from their work. what a weird thing to put in a constitution, righting? this is your fundamental law of the government, and your choice

is to put something in about how the president, for example, can't arrest a member of congress going to and from work? how paranoid must they have been in order to think that they had to specifically prohibit that. and so i think if you read the whole constitution, you get a sense of that as well as a lot of other things. second point is that a lot of clauses do very important work, even if average person or lawyer has never heard of them or the media never talks about them, or the clauses never make it to any court. the third amendment is one example. when's the last time the army asked to quarter some soldiers in your condo? i want to give you another case that's more important, and it's a little complicated, but i think the payoff is worth it. there's something called the ineligibility clause, and for this i brought a prop. because television is a visual media. and so i brought this, this is

the ineligibility clause. i wish i had a mirror. but anyway, so i'm going to hold it up here, and i'm going to keep talking. this, by the way, is the bat-eared fox -- [laughter] the odd clauses' mascot. i'm the odd clauses. i'll bite you! sorry. so the ineligibility clause basically says -- maybe i'll put it here, huh? i don't know if you'll be able to see it. anyways, it says that if you're a member of congress and an executive position office is created while you're in congress or if salary for that position is increased while you're in congress, then you can't take that position. you can't be appoint today that position. it's in order to stop self-keeling, right, you remember of congress, and you know you're going to be appoint today a particular position, so you vote to raise a salary by $100,000, the framers thought that was a very bad idea, so they put this ineligibility clause in the constitution.

now, it's come up several times over history, and, um, there's a little move that the government had used to sort of get around this. it was called the sax by fix which is because it was in connection with an attorney general named william saxby. and if person takes the office of the salary raised, but before he or she takes that office, congress passes a bill reducing the salary back to the originalment a, then there's no violation. the idea is they didn't get an increase in salary, o there's no problem. 1987, okay? louis powell retired from the supreme court, and the question that ronald reagan had to face was who to appoint, robert bork or orrin hatch? orrin hatch, of course, was in the senate. and while he was in the senate, the supreme court salaries went up. and so that was, arguably, a violation of the ineligibility

clause. i didn't, like, discover any of this. other people have discovered this. they wondered, can we use the saxby fix and put hatch in anyway, and they asked the justice department, and they said, no. that if you read this clause, the plain text of this clause means that anytime somebody, the salary is raised, it means you can't be put in that office. no way. so what happened? reagan appointed bork, bork was defeated, doug lis ginsburg was almost appointed and then withdrew for various reasons, and anthony kennedy was appointed. and anthony kennedy, of course, makes the law for the whole country by himself now. including in 1992 when he was the deciding vote in planned parenthood v. casey which upheld roe v. wade.

it changed history in a way that i don't think anybody really knows about except for the person who actually discovered it who i took it from. and now you. [laughter] there's a imissue, by the way, with hillary clinton. if you want to find out why it's okay for her to be there in that office, you will have to read the book. okay. next, all right, next reason why you might want to learn about the odd clauses is this: because the clauses are not political hot potatoes. if they were, you would know about them. so they're usually not hot potatoes, if ever, and because there's no long line of cases that go along with them, they are easier to understand. it's easier to understand about issues about how to interpret the constitution than if you were thinking about the first amendment or the 14th amendment or some other more complicated clause. and this is an example. i mean, i think the you look at this -- and i really don't know how well this is working, but there's a, i think there's a

very strong argument that the text of this provision pretty much means that the reagan justice department was right and that you can't take a position if salary was raised while you were in office even if congress passes a law reducing the salary back to what it originally is. there's arguments on the other side, but it says no senator or representative shall be appoint today a civil office if e moll youments have been raised. on the other hand, the purpose of the provision is to prevent self-dealing, and this saxby with fix that i'm talking about solves the self-dealing problem, arguably. so if you believe we should have a purpose for this interpretation of the constitution, you might think it's okay for somebody to take the executive position if salary's rolled back to the original amount. we can think about whether we think textual interpretation is

better, strict constructionists or pragmatic, and it's a lot easier to do it with these little clauses than it is with the first and 14th amendments. finally, sometimes these clauses do make front page news. or if not the front page news, you know, page 7 news. we're done with it, so i'm just going to put the mascot up. hi. never mind. [laughter] i run a blog called the odd clauses watch blog which i, you know, made in connection with this book in order to keep tabs on the odd clause activity out there, and it turns out that in the few months i've been running that blog, a lot of questions have come up in the news about weird clauses. not necessarily ones i've written about. but, for example, a while back president obama signed the

extension to the patriot act with an auto pen. he was in france. the law had to be signed, he wasn't around, so he directed somebody to sign it with an auto pen, you know, a computer. does that count an signing under article i, section seven's presentment clause? some people thought no. there are reasons to think that might be right. the debt ceiling? remember the debt ceiling debate? there was a question that was debated, i think the secretary of treasury and also bill clinton raised the possibility that president obama, were congress not to raids the debt limit itself, president obama could unilaterally raise the debt ceiling using section four of the 14th amendment, i believe, which says the public debt of the united states shall not be questioned. [laughter] you know, advice to constitution writers, the passive voice is not really a good tool for constitutional drafting, i don't

think. [laughter] i looked into that some, and i think that there's no way that president obama could have used that provision to raise the debt limit unilaterally, but it was out there as a possibility. recently, there's been talk in the blogosphere about whether the occupy wall street movement has a sort of constitutional base in the guarantee clause of, um, i think now article iv which says guarantees the states a republican form of government. so you see these clauses come up a lot in the news if you're looking for them. and as to clauses in the book, of course, some of them have also made the news lately. the bill of attainder clause about legislative punishment came up when congress thought about defunding planned parenthood, and the thought was that be legislative punishment or not? there's the natural born citizen clause which, of course, has given rise to the argument that president obama, of course, is

not a natural born citizen. i don't really want to talk about that, but it's out there. [laughter] there's a much more interesting question which is whether john mccain is a natural born citizen. that's actually a hard question because he was born in the panama canal zone, and it's not clear whether somebody born in the pa -- panama canal zone born to american parents, it's not crystal clear. and then finally there's the pirates and the letters of mark, so i'm going to close with two pages from the book, and then i'll take questions. the letters of mark and reprisal clause. the congress shall have power to grant letters of mark and reprisal, article i, section 8. americans adore pirates. we dress up like pirates on halloween and bellow arr, matey,

at our friends and feed imaginary treats to the invisible parrots perched on our shoulders. we celebrate international talk like a pirate day and occasionally change our tastebook settings to -- facebook set position pirate mode. pirates actually suck. they sucked back in the 17th and 18th centuries when they lawlessly plundered innocent ships with cannons and swords, and they continue to suck today. as they use their high-tech gps equipment and automatic weapons to wreak havoc along the horn of africa and elsewhere. in april of 2009, a cargo ship carrying food for relief organization was on its way to kenya when four somali pirates attacked it, seized richard phillips, the cap take, and demanded millions in ransom. naval officers on a destroyer that had been patrolling the indian ocean at the time of the attack negotiated for days with the terrorists but to no avail.

when the life both the pirates were in ran out of fuel, they accepted the offer to tow them a short way. in the meantime, a crack team of navy feel? snipers had been flown to the area. tensions had been high for days with the pirates repeatedly threatening to kill the captain, but when a bullet was fired sometime near dusk on april 12th, president obama gave the go ahead for the snipers to start sniping. the navy marksman waited for exactly the right moment. when two of the pirates stuck their heads out and a third remaining pirate became visible through a window, the three seals fired. all the pirates were dead. captain phillips was rescued, basically unharmed. amazingly, the seals had fired only three bullets to end the crisis. in the wake of the affair there was, of course, much celebrating the heroism of both captain phillips and the navy seals.

the naval operation that ended the alabama crisis had allegedly cost ten of millions of dollars. might there be some better and cheaper way to fight these pesky pirates? among the recommendations came a curious one from the always-controversial republican congressman from texas, rob paul. ron paul. representative paul suggested that perhaps the government could authorize private vessels to fight pirates in the return for bounty money, that way the government could use the market to solve the problem. as one sporter observed, if we have 100 american wannabe rambos patrolling the seas, it's probably a good way of getting the job done. but wait, would this solution be constitutional? can the u.s. government actually contract out key naval functions? representative paul certainly thought so. following his proposal, the government would use its power to grant letters of mark and reprisal, authorizing the ships

to fight pirates on the government's behalf. if this seems like kind of an antiquated solution to you, well, it is. the united states has not issued a letter of mark or reprisal in almost 200 years. sorry, that's it. so that's all i have. i'm happy to take questions if people have them. the floor is open for questions now. and, remember, this is, you know, this is on national tv, so this could be your chance to have your voice on national tv, and, you know, actually reality shows, the producers of reality shows monitor closely booktv to see, you know, get future contestants. [laughter] i mean, that's how snooki got on, a reading at the tattered cover. [laughter] yes. >> a couple months ago scott brown just being ineligible -- >> oh, right. [laughter] >> i'm wondering, do you think

it's unconstitutional for him to both be in the national guard and serve in the senate, and secondly, do you have any thoughts on why it's only unconstitutional to be in the executive branch and the legislative branch at the same time? because john marshall was secretary of state and chief justice at the same time. >> um, well, okay. so i think -- so, first of all, thank you for that blog post. it was a great post. for those -- you should go -- what's the blog? oh, okay. well, all right. um, so, apparently, you actually asked him, right? face to face, aren't you in violation of the incompatibility clause, right? >> [inaudible] the national guard or if he got elected. >> and he immediately did that, right? >> he blew me off. >> he lieu you off. blew you off. so i haven't done the independent research on the national guard question, i've, you know, been doing other things. my feeling is probably it is up constitutional, but i haven't done the work so that i feel

confident saying that on my own behalf. i did as in the blog, i asked this guy -- his name is seth tillman who knows just about everything about every clause of the constitution, and i said what do you think? he said he thinks it's probably unconstitutional, and he think it's unconstitutional under or various theories. so my guess is that it is unconstitutional for him to do that, and think about the reason why we don't want thing like that, right? um, i don't know anything about what scott brown's thinking or anything, but the reason why we don't want to have somebody who's in the army, the military at the same time -- or an officer in the military at the same time they're in congress is because, you know, say the person in the military doesn't want to go to war personally, so they might -- that might alter their vote to not go to war. or maybe they want to go to war because it'll make them a hero, or they vote for the war, they push for the war. those are the kinds of conflicts of interest that the framers

were worried about. now, the judicial branch was not powerful, i think, might be the answer in the 18th century. and i don't really know the answer as to why there's no incapability between congress and the judicial branch. the specific thing the framers were thinking about was the practice of the king offering, um, members of parliament key executive offices. that's the corruption that they saw and that they knew about and that they were really worried about. i don't think they are really thinking about the judicial branch or that people even wanted a position in the judicial branch which i think is the case, right? some people rejected them. they didn't even want to be chief justice. no thanks. so that might be the answer. other questions? yes. >> okay. we're all going to read the book, so -- if we haven't already, so we're going to know the ten clauses that you've selected? >> yes. >> could you give us a little

sampling of the 10 or 15 that you deselected? [laughter] >> settle in. well, let's see, which ones did i reject? there's one clause called the property clause which i think is very interesting. it says, it's the clause that give withs congress the power to -- gives congress the power to regulate the property of the united states, and it gives rise, it's why the government can regulate national parks and national forests and stuff like that. i worked on that issue, that clause quite a bit when i was at the justice department. the question came up about whether the president could set up a national monument in the middle of the ocean, and this turned on issues about the property clause. so i'm interested in that clause. that's something i thought about, but i was disabuseed of the fact that it was odd. there are lots of really weird, interesting, odd issues about the partisan clause, like, for

example, can the president pardon himself? but that's an odd issue about a not odd clause, so i rejected that. i thought about the ex post facto clause for a while which is the clause that prohibits retroactive punishment so you can't punish somebody for something that wasn't illegal at the time they did it. and i remember at the workshop there was somebody in the audience who said i can't imagine odd clauses that would have both the third amendment and the ex post facto clause, and i thought that was right. so i took that out. those are the three that come to mind. but we can go over this for a couple hours later, you know, go through it. [laughter] yes. >> one thing that surprised me while i was going through the book and reading it was that quite often these do actually seem to come up in relatively pressing issues. for example, president bush did make an appointment while

congress was out of session and just sort of claimed one of the clauses you cite. so do you think that these types of clauses should be expunged, or do you think they serve an important role that -- do you think it's important for him to be able to do something -- >> oh, well, so it's hard to answer -- that's a great question. of it's hard to answer in general. um, most of the clauses that i talk about in the book are, i think, very important. and i think they play, most of them play a very important role, usually quietly like the original jurisdiction clause is a great clause because if one state wants to sue another state, where are they going to do that, right? they're not going to sue them in their own court. that's not going to go over well with the other states. o -- so go to the supreme court, that makes complete sense. and that's true for a number of clauses. a natural born suicide clause which i think should be

expunged, but that's unique in the book, i think. the recess appointment clause is an interesting case because that was a clause that was originally made a lot of sense, um, back in the day where you couldn't just zip over back to the capitol, and there wasn't e-mail. it could take a very long time for somebody to get the senate back together to do a confirmation. so it was very important in those those days for the president to be able to appoint somebody during a recess. now i'm not so sure how important it is. and now, of course, we see when recess appointments are made, they're made not because we can't get the senate back home, but because this is the only way to appoint somebody without getting confirmation. and it's a problem that both parties do, right? and so that's another thing that's interesting about the recess appointments clauses, one of these issues that you can look at and think about how can this be interpreted? because whatever you think rule should be for the democrats, is

it going to be the same for the republicans, right? and so there's no political, you know, gain either way. you've just got to decide what do you think it really means, what do you think the point is and how should we interpret it irrespective of politics? other queries? snooki? yes. >> thank you, first of all, for having a sense of humor about all of this. i think sometimes it gets lost that these things are dynamic, and they get talked about in very dry ways, and then we think they're dead when, in fact, they're kind of there underneath everything we do every day. and so i like the way you bring it to life, and i'm hoping sometime you'll write a children's book where you actually take these animals and bring everything to life -- >> i thought writing a children's book about dinosaurs and food, like the -- [laughter] the t-rex and a pat-of-butter

saurus. [laughter] >> there you go. >> my son's idea. he couldn't be here tonight because he's at a hockey game. >> more importantly, how do you bring the constitution to life in a way that people are talking about in context? because here people cherry pick different parts of the constitution. they go, well, because of that, we should do this. and it seems hike a lot of time -- like a lot of times the conversations start off on the wrong foot, maybe on the wrong zone, maybe not even on this planet. and that's not saying, it's not partisan, it just seems like we're not good at going back to original intent and context. >> okay. well, there's a lot of stuff in there. >> something. >> i would not, you know, you lost me a little bit when you said original intent or context because that's a controversial view. do we want to interpret the constitution according to its original view, and if we did, what does that mean? is that's a hard issue. but i think the question you ask about, you know, why do we go off the rails and what can we do

about it, i think the answer is because people want to justify whatever policy positions they have by using the constitution as like a sword for them or for whatever they believe. so if you start with a policy conclusion and then you argue the constitution supports you, that's not a very good, fruitful way to go about constitutional interpretation, i think. much better to kind of understand the constitution before you start thinking about the specific political problems which is hard, of course, and which is one reason why i think thinking about these odd clauses makes sense. in other words, it's very hard to think about, um, the the equal protection clause and affirmative action, you know, without thinking about your policy preferences or the due process clause in abortion, right? it's just hard to abstract those really difficult issues away. so i think it's worth talking about the constitution as it's, by itself and fostering a conversation which is one thing i'd like to do about the constitution before we start thinking about how it applies to

the very difficult, divisive issues that cause these problems every day. so i guess that's my attempt at an answer. >> thank you. >> you're welcome. yes, hi. >> i know your book is on the odd clauses, and the odd clauses are not the same thing as the stupid clauses. but if you were to have a chapter on the stupidest clause, what would it be? [laughter] >> okay, right. and so the professor is referring to a book that was published a few years ago by it was kind of a collection of essays about the stupidest clauses of the constitution which is not what i'm doing, of course, right? but if i had -- i don't know, well, i do think, agree with some of the people who think the natural born citizen clause is a stupid clause. whether it's the stupidest, i don't know. i mean, i think the people who say that the, you know, the apportionment of two senators to every state regardless of whether they're california or, you know, rhode island seems kind of stupid, although i

understand its origin and why we had it, you know? go to -- people in rhode island should feel powerful, right? i mean, they really, they have a lot of say both in the senate and, like, in beauty pageants, national beauty pageants. but that's kind of a stupid clause if you look at it these days. so i don't know, those are two good candidates for stupid clauses. i, you know, i'm not -- the reason why i wrote this book is not the stupid clauses book other than the fact it was already written was is that i'm more interested in the odd clauses that are both stupid and not stupid. then i add stupid clauses. but thank you for the question. yes. >> i read in some article that there's a possibility of making a trillion dollar coin, so as paper money is limited to how you can do that, and the coinses are not -- coins are not. do you know anything about that? >> i know not a single thing about that. [laughter] >> i think it was a yale law

professor that was writing -- >> oh, yeah, well then -- [laughter] i'm sure it'll happen right away. [laughter] >> it said it never would happen, but i had read something about it -- >> that would be cool, but you wouldn't want to lose it. [laughter] >> it would go right into the treasury. >> yes. i think one of the more sensible remarks i've heard about the workings of washington, d.c. is that all the cabinet positions that have to be con firmed, you have the chief of staff isn't and his staff. would you like to comment on that? >> yeah, it's interesting, there are some people who are very important members of the executive branch who are close advicers to the president. the white house counsel is one of them, the head of the council of environmental quality who's mainly the environmental policymaker for the government is, lots of people in the office of management and budget, i think. so there are a lot of people who are very close to the president who don't have to be confirmed, and the idea is that the president really should be able when we're talking about not about the cabinet, but the people who he's sitting down

with day-to-day planning the strategy should be people, you know, he feels very, very, very comfortable with. so i think there's something, i think that that's, you know, without having thought about it much before, um, off the top of my head i think that's a fair, a fair arrangement. personally. >> [inaudible] >> yeah, absolutely. absolutely. and it's worth knowing about, right? so that, i mean, these are people who are very, very important in the government as close political advisers, but they don't have to be confirmed -- >> well, the chief of staff controls, he's the stoplight for the president, and he doesn't get confirmed. >> imagine, though, if it was somebody who the president didn't like? [laughter] that could be a real, you know -- yes. >> i've lost track in all the details whether the natural born citizen clause was one that you'd covered. >> it is. it was. [laughter] >> terrific. could you elaborate on why you feel that is a ridiculous clause? >> well, i feel it's a

ridiculous clause because i don't think that one necessarily has to be a natural born citizen to be, say, loyal to the united states and to be a superb, excellent president in all respects. you know, the fact that somebody is born, i mean, schwarzenegger's now -- i don't know if that's a good example anymore, but, you know, that was a classic example that people use. why should arnold schwarzenegger not be able to be the president of the united states? you know, there's some reasons -- [laughter] but one of them isn't that he was born in austria, right? [laughter] so that's why, i mean, there wasn't -- the original constitution says that, in fact, i can't remember exactly what it says, but basically, this was an exception to all the people who ended up being president the first however many presidents were not natural born citizens, they were all born in england, you know? and i think the first natural born citizen we had was martin van buren in 1836 or something like that. does that mean those people were

not loyal to the united states because they were born abroad? i don't think there's a connection between being a natural born citizen whatever that might mean and loyalty to your country. the fear, it seems, was there would be a foreign prince who would be brought in from france, napoleon's nephew or something like that. that's not quite right. but almost right. and rigor's not really my forte. [laughter] so, um, and i don't think we need to worry about that that much. we have the elections, for example, that could handle that problem. so i think it's really stupid, and i think it also sends a message. it says, you know, if you're not a natural born citizen, you're bourne overseas, even if you've been in the u.s. military, you're still not good enough to be our president. and like if i was not a natural born citizen, that would be offensive to me. shall we close up?

thank you very much for -- oh, oh. whoa. in -- in under the wire. this better be good. >> when well, i have a question about your next week. week -- book. >> oh, good. >> what about odd pieces of legislation? maybe the field's too broad, there are too many odd kinds of statutes running around. wouldn't that make a great book? there's some really crazy things written -- >> is this a co-authorship offer? [laughter] because if you read the book, you'll find out that i asked craig l over here if -- >> i said it's an odd idea. >> no, you looked at me like i was crazy, and you walked away. [laughter] the state v. state, the ten greatest original jurisdiction, and i've gotten some comments that say it would be. what's your question? [laughter] i don't know. i'm not interested in that book. odd legislation, that sounds like something you see in the back of a taxi that says in

kansas it's illegal to drink malted shakes without a cover, you know? or whatever. it doesn't say that exactly, but -- >> maybe you're right. >> right. [laughter] >> and now i'm on television. >> yes. i should expect a call from "big brother" anytime. [laughter] okay, thank you very much for coming, i appreciate it. [applause] >> for more information about jay wexler, visit his web site, jaywex.com. >> so let's move now to the mcintosh era. so much is going on at apple at that point, there's so much growth, and his personal courtship of john scully begins. talk a little bit about that, that -- >> it was a, it was a bad

mistake. and it was almost like he saw john scully as a father figure or a mentor. scully really wanted to be cool and hip and wanted steve's approval, and it was, for a while, you know, the famous line i think it's at the zahn' mow -- san remo apartment that steve is thinking of buying, and he brings john scully up. they're looking over central park, and scully's demurring. and steve says do you want to spend the rest of your life -- because scully was in pepsi -- selling sugar water, or do you want to change the world? so scully comes, and scully is a man of prep school sensibilities, great manners, very kind, but he's hard, it's hard for him to deal with conflict. steve felt the price, i mean, i say why were you so tough, he says, well, the price of

admission to being with me is that i've got to be able to tell you you're full of it -- actually, use a word with two more letters. >> yeah. [laughter] >> and you've got to be able to tell me i'm full of it, and we're going to really duke it out. and scully was not that way. secondly, scully was basically a marketer. you know, and having run pepsi u.s., he didn't sit there worrying about the product. he was not fiddling with the formula for do' toes and saying i can make this insanely great, this dorito. it was of shelf space marketing. and i think steve after a while felt that scully just didn't get into how awesome the mac was. and then it didn't help that the mac even though it was insanely great, scully priced it at almost $2500. it did not sell very well. microsoft started licensing out its copied version of the graphical user interface and started dominating the computer

business. and so i think their relationship was doing fine as long as apple was doing fine. and the apple ii was a workhorse. it was making the money for the company, but the mac didn't. and so there was a horrible falling out that culminates on memorial day of 1985. >> before we talk a little bit more about the falling out and the post-'85 period, let's talk about the invention to have mcintosh itself, the design itself. and this is a point in the book where you insert the great, famous quote from jobs, good artists copy; great artists steal -- which he took from picasso -- and then he would add, and we have always been shameless about stealing great ideas. that quote is often associated with the genesis of the mcintosh because of xerox park and the tropical interface. >> yeah. so they take two visits to xerox park, and as you know, xerox had come up with the concept of the

desktop metaphor, the graphical interface, more importantly each pixel on that screen could be mapped to, you know, bits in the microprocessor. and so you can make a beautiful machine. you and i are old enough to remember and certainly if you're not, you can go into this museum here to remember what you have to do, you know, those green fossil letters, you know, c prompt with c:/whatever command, you know, it was god awful. and suddenly at time magazine we get the mac, and you can click, you know, you can drag and drop. well, so i to a whole big section -- i do a whole big section on both the visits to xerox park and i think the misconceptions that they just took it from xerox park. because it takes two years of the most amazing designers including andy and others on the team to take what the metaphor that xerox used and to really make it great. you have to remember xerox came out with the star two years

before the mac came out. i think it sold, like, seven copies in all of america. i mean, it was a bad machine. what they did when they took that metaphor was say, oh, we'll take the mouse with three buttons and be totally simplify it, and you'll be able to click and drag and drop and double click and open things up. we'll invent pull-down menus, and bill atkinson invents clipping where you can have documents sort of looking like they're on top of other documents. so none of that was in the xerox original graphical interface. so i think, first of all, they take the xerox metaphor and actually make it insanely great. secondly, t.s. eliot's line, you know, there falls the shadow between the conception and the reality, well, they were able to execute on it which xerox and others want. but it is true that part of steve's genius was looking at a

thousand ideas at any given point and saying that one's great, this one sucks, and this we're going to ignore. but pulling together ideas including ideas from xerox park. >> you can watch this and be other programs online at booktv.org. here are the ten best-selling hardcover nonfiction books as of january 19th according to "publishers weekly."

>> for more on these best zell ors, go to publickers -- publishers weekly.com. >> could you give us kind of an epidemiology for people who may not sort of know the blow by blow of conficker? just the first half about how, you know, you did talk about it showing up in, i guess it was john who talked about it showing up in a honey pot, but just sort of describe the beast here. >> well, the worm itself, it popped up at sri's honey pot,

and what happens when there's a new piece of malware, it drifts into his space, and a line will pop up on his monitor, and there's all these readouts sort of defining what it is. one of which is a column which indicates how well recognized this virus is to the major antivirus industry in the vendors. and this one was recognized by none. that's the first thing that got his attention. and then the next thing that happened was replicating so rapidly that within 24 hours it was shoving every other piece of mall wear out of this honey pot. the only readouts were conficker, conficker, conficker. he said, i literally had nothing else to work on at that point. what they discovered at sri when they began to dissect it was that when was television a very sophisticated piece of malware. one of the things id did was check to see if computer it was about to infect had a ukrainian

keyboard, and it would self-destruct if computer did. but basically, of course, what a worm like this says, it penetrates to the core of your operating system and replicate it, send out and infect every other computer on your network. it also begins calling home to a remote controller. the remote controller, the way that you would ordinarily kill a bot net is you would chop off its head, if you can intercept that communication, you can effectively kill the bot net. so to prevent that the worm had an algorithm that generated randomly 250 new domains every day so that the bot master had to be by hind only one of those 250 doors on a given day whereas if you wanted to cut this thing off, you would have to shut down all 250 domains every single day forever. and so that was, you know, one example of the cunning nature of this thing.

and rick who i think may be even here tonight, t.j. mentioned him, actually began buying up those domains and putting them on his credit card which gives you a sense of how ad hoc this effort was to try to stop it. >> before we go farther down the path of the worm's evolution, i just wanted to get back to that question of, you know, what kind of -- a question for t.j.. i have a very old e-mail address, and i have a filter in front of it -- >> [inaudible] [laughter] >> i think most of the people here know. and since most malware, i take it, is distributed by bot nets and in the form of -- well, the level of spam is some rough correlation out there in the world with the level of malware infection. my -- so i remember about a year

ago a large bot net was taken down, and for a while spam fell off. but i have to say if i look historically at the number of spam messages every day, it look like it's probably 10-20% worse than it was before that happened. am i a good indicator of the state of -- >> it's a perspective situation, right? so the operation you're referring to is operation b107, the the bot net takedown. so we kind of sit back, and we laugh at some of the reports that were coming in. one of them was zero impact on spam. one of them was 5%, one of them was 10%, one of them was 30%. so we looked and said, well, what's the real number? and it was a perspective thing. we called our friends at hotmail, and we said did we do anything for you guyses? .07 percent. i was hoping for a bigger

number. [laughter] the problem is that they have a lot of the web mail providers have systems in place that prevent sending of script from nonknown mtas. so they had been blocking a lot of the spam that was hitting already, so we had a small impact with hotmail. with some other organizations, marley private companies -- particularly private companies, they saw a huge dropoff because the big spammers wouldn't be sending e-mail to hotmail, i'm assuming g mail and yahoo! are the same. we talked to the hotmail folks, they said they've largely managed the spam issue, but the thing we saw when we were watching our honey pot, it was sending them out to a whole bunch of different domains. we definitely saw hotmail spam leave, but that spam would never make it into an inbox because of the filtering. so i don't know what the real number is, i know when we start to look at these things and going back to the original

question, how many millions of my customers are being impacted by the malware? it's running something else just based on our testing. so we look at it a little differently. spam gives us cause to say, hey, they're harming us. when i look at it, i'm also looking at how many of my customers are being impacted. so when we started to look at that in particular, the analysis showed it would actually reach out to a piece of our infrastructure that we could track in a very specific way. o we were able to fingerprint that, so we knew how many of the machines we were dealing with. so one of the criteria we look at in the conficker case, it was a big bot net. how many of my customers are being negatively impacted by this piece of malware? so i think the state is not great on the internet, but i really -- the past couple years have really seen a surge in internet service providers and technology companies taking more of an interest knowing that private companies can do more to protect folks.

so i think, i think, i think the dark days are behind us. [laughter] >> i need some type of wood. i think we're getting that awareness. i think as we really start to understand that there's more things that we can do, we're kind of coming out of that. so at our last conference we had about two weeks ago, we've been doing conferences for ten years now. >> this is your digital crime -- >> on the heels of the international bot net task force. we're starting to see more people talk about how can my company help, how can my company take down -- i would love to see spam go away as a distribution mechanism, but i think there a perspective, there's a certain perspective that shows that that might be the case, that there might not be any change. but we're still in the infancy, so we don't know. >> so this book is a who dun it except i still feel that we don't know who dun it.