legitimate. >> the only national television network devoted exclusively to nonfiction books every weekend. we are marking 15 years of book tv on c-span2. >> next on book tv, josh blackmun takes a behind-the-scenes look at the legal challenge to obamacare that ended with the supreme court ruling it constitutional in june 2012. this is about an hour-and-a-half. >> welcome to the cato institute , an unprecedented book form. my name is allium shapiro. the latest volume will be released this coming tuesday on our annual constitution day conference. today you are in for a different

kind of treat. my good friend and sometime ago author has written what will surely be considered the definitive account of a once-in-a-lifetime case, the constitutional challenge to obamacare. not the definitive academic treatment on the supreme court ruling, let alone its indications for health care policy, but the inside story of a legal and political tug-of-war that embroiled all three branches of government. the book was the wall street journal calls excellent offers unrivaled access to the key decision makers based on interviews with more than 100 people lived the journey. academics to my attorneys and activists. now, 14 months have passed since chief justice john roberts made obamacare individual mandate attacks. i was in the courtroom that fateful day in day and my emotions could recycle through shock, denial, anger, and a depression. [laughter] before settling into the bargaining stage of grieving.

still not over. to be sure, as i am sure randy will discuss, the decision was a constitutional wind in at least four ways. it is now clear that the government cannot compel activity in order to regulate it. legislation that is necessary may still be improper. the government can only levees small taxes. congress probably won't ever use this power because he can achieve the same economic role by offering politically easier tax credits. for the first time the court by a 7-2 vote found that the federal government cannot force the states by attaching too many strings on federal funding. so, by letting obamacare survive in such a dubious manner, i call it a unicorn tax, a creature of no known constitutional province that will never be seen again, roberts undermined the trust that people have that courts are impartial rather than political actors.

i never thought i could feel so anti and still do after having court majority's offers such ringing endorsements of my theories. not mine alone on the commerce necessary and spending causes. what bothers me is not that robbers chances vote. justices do that regularly. instead, his tax section simply does not compute. even justice ruth pater ginsberg has expressed tac skepticism, quizzical about his theory when she read a summary of for a partial dissent from the bench. the regrettable inference to draw is that rarest decided he needed to uphold the law while not expanding federal power and succeeded in squaring that circle with a ruling hinging on a head scratching tax on an activity, a piece of legislation know congress will have passed. the sad thing about this episode is that he did not have to do what he did to save the court. for one thing, obamacare has

always been unpopular, particularly the individual mandate which even a majority of democrats in a national poll on the eve of the ruling that was unconstitutional. for another he only damage his own reputation by making this move after warnings from pundits and politicians this tracking down the law would be conservative judicial activism. most importantly, the whole reason that we care of the court's independence is so it can make the tough calls while letting the political chips fall where they may. had the court struck down obamacare it would have been just the sort of thing for which the court needs all that. instead we have a strategic decision dressed up in legal rose. i am reminded of the 1966 film, a man for all seasons in which an ambitious young lawyer perjures himself so that the town can secure sir thomas more's treason conviction. then promoted to attorney general of wales. upon learning of his connivance more pointedly asks, it profits

a man nothing to give his sole for the whole world but for wales. well, in refraining from making that hard strikes call you discussed at his confirmation hearing, john roberts sold out the law for less. it thereby showing why we don't want our judges by politics. here to tell us all about this sordid tale is josh blackman, an assistant professor of law at the south college texas of law who specializes in constitutional law, the supreme court international law and technology, president of the home institute, he also blocks. he clerked for judge danny boggs on the sixth circuit, gibson on the u.s. district court for the western district of pennsylvania and is a graduate of george mason university law school. i'm still not over the economy and health care system may never recover, but here is josh blackmun.

>> thank you. [applause] >> hi, everyone. you might not know this. in case of emergency brake. it is such an honor for me to be here. it is hard to convey. my first time was six years ago. constitution day 2007. his first week on the job. i got to know shortly thereafter . great friend and advocate of liberty. he has given over 100 talks across the country. what is the number now? >> i have lost count. >> over 200 talks across the can't she arguing that obamacare must stop. >> no one understands the decision. how do you understand it. and so he is a great friend, joined by two wonderful friends. the work he has done on this case is very hard to characterize. he was not just the law

professor who had the intellectual ideas. he was the godfather. he was the person who helped move this idea from off the lot on the wall. he gave the idea energy. and he is one of the key for the constitution. in the battle. >> that means so much. >> actually this case is unprecedented, and no use this. the title actually comes from the law itself. why is this lasso unprecedented? there are a number of firsts. one, never before the 20th-century has congress tried to pass a law of such significance and as straight party-line vote. president made the determination that he did not need any

republican support. just get the votes and be done with it. he was told later that would not be the case. this was a straight party-line vote. also unprecedented, never before has congress forced people to buy a commercial product. there have been laws about making people get rifles for the militia, but this is a unique law. and never before has the constitutional arguments developed so quickly, so rapidly with so much significance and spread all the way to the supreme court in less than two years. my good friend randy is one of the key progenitors. they have dedicated a lot of time to this argument, but is there a marble. and the title for the book came from an offhand equip i made. randy took to using unprecedented very often. and i made a joke saying we should have a drinking game where every time we say unprecedented we take a shot.

and it stuck. >> which is ironic because just as a drink. >> i don't even drink. i have water. that's about it. that was one of the moments where it crystallized in his mind that this has salience. the idea that this law which forced him to do something trigger something in the american populace. this case was not just that your constitution. it was about the people. the people in various social movements, the tea party and other groups had a divergence, and it was not just on policy grounds. there were not say we don't like this. they said we don't like this because it violates the constitution. people protesting st. overturned we need to enforce the constitution. this law potentially engendered such a strong constitutional response, backlash even that i don't think anyone anticipated. and also the litmus test for where the american people are

with respect to the constitution that is the highfalutin ideas, but the actual story of this case is fascinating, and i will run through it to make sure we have enough time for our distinguished panel to speak. the mandate is actually quite old. our good friends at heritage, some of you might recall in 1993 a former president of cabo sent a letter saying, hey, this is unconstitutional. it was actually an advantage, stuart butler invented the mandate and did not comment. so the history of this goes back quite a long way. for many years republicans supported the idea of a mandate. i good free-market alternative. kao has said for many years that this is not free-market but coercion. fast-forward to 2009 after president obama was elected he coopted hillary clinton's health care plan, made his own, and said we will have obamacare, mandate. we're going to force people to

buy health insurance. why? well, not fair to all these young and healthy people to free ride on the system, way to buy health care until they're sick and not pay into the system. so they had the thought, obamacare. the problem was it was not constitutional or popular. very unpopular. so unpopular that not a single republican supported, not one. the president made a call and said, we will go 60 votes, pass it. whatever happens later, we don't care, like syria. this happens. this was early on. you can sense a pattern. senator ted kennedy dice. he was the 60 votes in the senate. after ted kennedy died who replaced him? a republican in massachusetts, imagine that, scott brown. he replaced ted kennedy, and with that the democrats lost their filibuster-proof majority. what happens now? they don't have a majority. they send it to the house.

nancy pelosi has effectively passed the bill in the senate. but she wants to make some changes, and not just some, lot. if she were to make any changes we have to go back to the senate. we have the reconciliation process. it was remarkable. he was so happy. he signed the law. he was grinning.

the line, when the law was passed the president was watching this on tv, probably cnn. of get back to that later. the president said he passed it. this is a big deal. this was caught on a live microphone. anyway, the law is signed. that is the end of the story. no. otherwise my book would be one chapter. a lot of other stuff happened. within nine minutes of the ink drawing on the president's signature lawsuits were filed across the country. the first one was in florida. twenty-six attorney general sir. another and virginia. ten are 15 minutes later. electronic filing problems led by attorney general, was street journal put mind and his book in the same bird. my book was in front. whenever that counts for a

series of these lawsuits were filed. back then if you go back to the fall of 2009 no one thought much of this argument, and i am sure randy we will talk about an experience where a simple conversation about what is wrong with this argument developed these constitutional ideals. the idea was in the past the supreme court has only upheld the regulation of glasses of activities, growing marijuana, except representative. this was something different. congress was not regulating a class activities. they are regulating in activity, a decision not to have health insurance which had never been done before. the state attorneys general raise these arguments. remarkably they worked. judge hudson in virginia and judge vincent in florida, the court actually gained victories for the challengers. they said never before had congress done this, unconstitutional. remarkable. u.s. federal judge is saying that a law that regulates a

multibillion-dollar industry does not involve commerce power. this was a stunning blow to the administration. the court of appeals, and remarkably it was split. some judges ruled in favor of the government. one rule in favor of the challengers and allied the opinion. congress lax this power. they cannot do this. and then the supreme court. this is where it's fine. everyone knew where it was headed, but no one knew how it would be resolved. there were a lot of issues to consider. i don't want to get too much, but i need to talk about something called the tax anti junction act. the need to go to the bass for now is the right time because it's boring. you cannot sue -- i'm sorry, you cannot challenge the tax until you paid. people would stop paying taxes and file lawsuits.

the proper procedure is if you don't like a tax you pay it and go to court and sue. this has been around for over 100 years. originally the government argued that obamacare was a tax. because it was a tax that would not be in force until january 2014, no one could see one again. that argument is rejected. why? because the actual statute of the test says it is a penalty, not a tax. a penalty. what is to say that? because he wants to raise taxes? the president ran on a platform of not raising taxes. so they find it as a penalty. that was a very deliberate move. unfortunate consequence of passing a law with certain words, you can't enforce it as a tax. so this argument was rejected. as it went to the supreme court, there's a different approach which is something i talk about and the book. hal the solicitor general decides to frame the issue.

listen. this is a tax. don't worry about the fact that it is not call the tax. just pretend it is a tax. but there was a slightly different argument. he was cited in the case, a federal case which he studied for other principals. there was one party opinion which i had never read before. justice o'connor's opinion where she said that if congress passes a law that is framed as a penalty but can be construed as a tax to save its constitutionality it can be done and going to say that again. if the law can be viewed as attacks even though it is not, we will save it. the solicitor general's decision to make this argument among other is that ultimately persuaded the chief justice. the chief justice went along with the four dissenting votes to said, congress cannot mandate in activity. they cannot foresee to buy product. but what the court would say is that if they're is a law that

could be construed as a tax we will do so. that is something that has kept me awake for most nights. >> the nightmare. >> the nightmare. i mean, i talk about it in the book, the dynamics. when the supreme court announced the opinion, you don't know in advance what you're going to say and if you are in accord there is no media. there was a distinct time with the people thought the law was going one way because the first 12 minutes a so it looks like this low was going down and this was going to be struck down. but then he says, well, wait a minute. if we can save it, we will. and i think you were pumping your face to invent you went very sad. the law was saved. but there is lingering implications that should be discussed which might be more interest from a policy perspective. one is the politics. the president has made no secret that he likes to go after the

court. if you recall that 2010 state of the union which was after citizens united, he made statements critical of the court. they reversed precedents, opened the floodgates of foreign spending and all these. he said this with the justices sitting 5 feet away. justice alito was sticking his head like, no, not true. the president has repeated his behavior today's after the oral argument was finished. basically the following monday. he made an offhand comment very basically says to the court that you should exercise your jurisprudence carefully. he made it very clear what he expected them to do. he cited an opinion which might be a presidential first. this crowd, probably a good thing. but he actually cited the opinion and made it clear that he was not going to be happy if the court struck this lot down which might be a good or bad thing, but if you recognize the climate under which this case

was decided, presidential election year. decided three months before the general election. and the court was rightfully concerned what would happen. jeff rosen will talk more about this letter, but there was a definite concern that for the court to strike this law down in an election year would open the door. and you might say, what is the big deal? were talking about the court's credibility. if he went so hard after the court for the citizens united opinion which he benefited from immensely. he benefited immensely. if he had right there, we can imagine what he would have said. and this had to had weighed on the chief justice.

well we do know is that he was trying to have have the influence of the court. the chief justice sold out. he did. he wrote a lot. i will give him some credit. he has a 30-year term ahead of him if he stays healthy. the president has three years and counting. i'm sure their is a count noun summer in this building. a fairly short time left in office. we have a lot of other cases coming up. just this past term voting rights to step down. affirmative-action is coming of san. the affirmative-action, better test case. so a lot of things that the court has to do. randy am sure we will talk about this. what is the impact on the constitution? well, i don't know how big it is. i will caveat that.

this law definitely says congress cannot regulate inactivity. if congress has other purchase mandate this would probably be there. medicaid spending. at think with this court recognizes is that the federal revolution of the rehnquist court is not over. we're willing to police the balance. we will watch that line. we will make sure it is enforced. i think that shifted our constitution gestalt. this notion that the structural protection of our constitution are important bulwarks of freedom, evidence in the court's opinion for roberts in the joint dissent. the see this rhetoric picked up. the ability of congress to amend the law, extend there power.

we will see a nice narrow policing of the federal government's power. and there may not strike down more. we learned a lot about the american people also. for a long time people us in the constitution just did not matter . woody's a? , you kidding? you could check i have some questions in the same fashion. >> that so romantic. >> cater records everything. with the american people feel. and i think the obamacare law inadvertently awakened a sleeping giant.

people have this natural yearning for the constitution. thousands of people turn up from nowhere spontaneously on capitol hill to march against the federal law. this was remarkable. and although we don't really see much now, i would say it is dormant, slumbering, perhaps, this could be reawakened. we know it is looking. and this might be the most important lesson going forward that we year and elsewhere should keep fighting and keep talking about the constitution, keep talking about liberty. make sure that discussion is ongoing. when something becomes a long we have the foundation, the framework, the army ready to roll. it is no accident that randy and others are able to mobilize quickly because we have these institutions year when these things happen. and all of you here are members of that movement in one fashion or another. perhaps not the people watching

on tv, but everyone here recognizes this. and i get on time? i will cede to my distinguished panelists and thank you so much. thank you so much. [applause] >> thank you, josh. you can tell he is kind of an unprofessional law professor. next we will have the ideal commentator. the new york times read because the intellectual godfather of the obamacare litigation. once more, he was counsel to the national federation of independent business in the case he is the waterhouse professor of legal theory at the georgetown university of law center redirects georgetown center for the constitution.

he argued the supreme court medical marijuana case which would play large role. he has written more than 100 academic articles and nine bucks including leading casebooks on contracts, constitutional law, the magisterial, restoring the law of the constitution, the presumption of the liberty. a regular commentator including the regulation of. he is also a movie star, surprising, he portrayed an assistant prosecutor in the independent film inalienable, a sci-fi morality tale. he led the company him to all of the arguments in this case. richmond, cincinnati, atlanta, deasy. we were arguing that we would have t-shirts made up and were the only ones in the country that hit all of them. it is an honor for that to have him here. [applause] >> thank you very much for that

introduction. congratulations, josh. molotov on this wonderful accomplishment. the second year or third year? second year of law school. i met him when he was a law student as well, but it is interesting to see. they accomplish big things. this is a truly big thing you have accomplished. by this book if you want to hear a great story because that is what it is pretty terrific story the behind-the-scenes story. by someone who not only interviewed all the principals who were involved, including people from the government and got their perspective that have never been publicly share before, but josh was actually there at the beginning, at the very moment in which the opposition to obamacare, the legal and political challenge really got started which was at the mayflower hotel here in town in november of 2009.

the mayflower compact in which outside in the corridors of federal society national lawyers convention i joined a group of people who were just chatting about something or another. and the heritage foundation asks me if i wanted to be involved in opposing this senate bill which had not yet been actually produced by a committee at. we did not even know what the text of it was yet. after some initial skepticism i agree that i would do so, but only if you found someone who could do a first draft of the paper. bennett was at that moment that he said, i think i can do that. eventually found daniel stuart who was -- to get a tremendous amount of work in identifying the legal theories that we eventually used to oppose the law. josh was in that group of people at that moment at the mayflower hotel. little did we know what would grow out of that moment. little did anyone know what grows out of individual moments

that you might have and do my share in the future. it is a great read. it is a story. he is able to skillfully weave together both the narrative as well as a lot. that is a pretty big challenge to be able to do that. in my talk today, in my remarks today i want to make a few points, some of which really director what you have already heard about what we accomplished in the case and why we accomplished and how we accomplished. what we accomplished will be how . first of all, as to what we accomplished. the rest of it is only premised on the idea that we did accomplish something. you try to summarize this. i did write the foreword. i was very privileged.

let me read to you the bullet points. it comes from the forward. i explain it. first of all, we prevailed in establishing that the federal government lacks the power to compel people to engage in economic activity. secondly, we were vindicated in our plan that the government's authority to solve problems that affect the national economy is not a blank check for the expansion of federal power to do so. thirdly, we established that congress may not simply invoke the necessary and proper clause to do an end run around the limits of commerce power. fourthly, we showed that congress cannot avoid the limits of the constitution places on its power to govern simply by calling something a tax after a law is enacted. simply to be constitutional litchi the ruling that any such tax must be low enough to be non course of and preserve the choice to conform more pay held

unconstitutional. whether those six accounts business really are much of anything. i ask you to imagine that the controlled substances act which makes illegal all of the recreational drugs that have a tremendous amount of appeal to a lot of consumers in this country , i imagine they controlled substances act was in force not as a commerce power of legislation, which it is, but as a spending power or as a mandate -- i'm sorry, as a tax under the in sib ruling. supposing that was the way that the drug laws in this country were enforced. if that were true and was the basis, then we would have to open up the doors of the federal penitentiaries and release tens

of thousands of prisoners who are now there because there would not be able to be incarcerated for failing -- for using or even selling these recreational controlled substances. all there would have to do in order to conform there conduct would be to make -- pay a small tax on the activity of buying or selling these controlled substances. that would be a libertarian see a change in the direction of the country if that were the means by which our laws were enforced. it would not be a perfect outcome because there would still be a tax on this activity and therefore it would have the capability of restricting it, but it would be a huge step. that is what we accomplished in this case. that is all the government was allowed to do at the end of the day. and in addition to that, as josh makes clear in the book, we also managed to have it in two ways.

we certainly undercut its legitimacy in the minds of the public. for two years not only was it argued that the affordable care act was bad policy, but also unconstitutional which many people in the united states to care about. it became an illegitimate law and was held and legitimacy limbo long enough to become the subject of a presidential campaign which would not have been possible had it not been for the lawsuit. unfortunately i am not happy about the way that turned out on the issue. but it was made possible. the campaign even involve the affordable care act was made possible by a lawsuit, and ever since then the law has been consistently unpopular and more susceptible to being repealed or revised significantly than it would otherwise have been added not been for lawsuit. i would also say that by limiting the penalty and forces the individual insurance mandate to raise small non punitive tax

free render the operation of the bills officially problematic that it may actually be necessary for congress to revisit this in the future. when that happens there will be more opportunities for positive change than their otherwise would be having not prevailed in this case. obviously on the spending power we give states the ammunition that they needed to resist the extension of coverage of individuals under the medicaid program that they otherwise would have lacked which was something else we accomplished. state governors are using it in order to resist a further implementation of this law. that is what i think we accomplished. how? well, obviously individuals manner. individual people matter. it matters to it was that was in the position to oppose this law. this was not done by nameless, faceless people. i have already mentioned to you the role that taught at the heritage foundation and the heritage foundation itself played in putting forward the original objection to the

affordable care act, even before the bill emerged from committee. just tells the story in the book about what happened with that report, nathaniel steward and nine taught route and how it was used to shape the republicans' argument in this and so the republicans as senate who were not previously counting on making a constitutional point of order in the said because the staff cannot think of a constitutional objection to make once they were exposed they then did logic constitutional point of order and there was debate on the floor of congress the day before the bill passed on christmas eve. that was broadcast on c-span and brought to the country the issue of the constitutional problems with this bill in no way that was highly salient and otherwise would never end, about had it not been for taught at the heritage foundation, that would not have happened. the first lawyer representing the state's in their initial loss it was one of the only lawyers and the only major lawyer who was prepared to take

on what was seen at that time to be a sure loser. yet he stood up having already called up the health care reform . carry the fight to the government. obviously the legal team who i worked with did enormous work. they're brief had a particular influence. paul made some brilliant oral arguments. not only was his brief brilliant and it would have appealed largely, but it was also his performance in oral argument in the court of appeals in the supreme court, a sight to behold. of the curve was to witness that. also, i really would be negligent if i did not mention

the role that they played in writing numerous amicus briefs. it is true that we're ready only people in every court of appeals hearing, although i was in pensacola for the district court case. i got one case. i got one hearing upon him. he was there. but we broke these briefs. >> i was too busy debating the case somewhere else. >> and he debated. and what they were able to do, the three of us worked together, make a pure constitutional argument of the kind that not all the lawyers for all the cases being navigated around the country were able to make. i do think that our amicus briefs did galvanize the best constitutional arguments against the case and were eventually of store by the parties. these were the people. these are the people must be thanked for the effort that was

successfully maintained. however, although the existence of these individuals was necessary to the success that we enjoy it, by no means was a sufficient to the success that we enjoyed. i want to talk about what else was necessary for the sec's -- success that we endured beyond individual people who happens to be at the right place at the right time and when to devote themselves to this cause. at this point of want to talk about something that law professors call popular constitutionalism. that is, the idea that it is the people themselves that shapen some sense out the supreme court will interpret the constitution of the united states. people themselves i don't believe change the meaning of the documents, and i held this up in my constitutional law class this week. and did not have a copy with me. it's the cato constitution. they insert the word liberty all over the place. a different version. no, it's the same. but i don't believe that the

people change the meaning of this text itself. there is no question whatsoever the people have a big influence on what we would call constitutional law which is the doctrines that come from the supreme court of the united states. that constitutional law does change, evolve, is living, and is influenced by the public perception of what jack basically said is off low wall and on the wall. what arguments are beyond the pale and what arguments are to be respected and influence. the question of whether you make an argument considered crazier crackpot or serious depends in part on the validity of that argument, but only in part. also depends on how that argument is perceived by the general public which is why the involvement of the general public in this case was crucially important to us getting as far as we did as fast as we did. we can never count on the courts themselves to save the

constitution for us or to save limited government for us. that is not going to happen. it has not happened. the courts have led us down repeatedly, in this case to a large degree. they are not going to do anything that a critical mass of the american people do not support. they are a highly majoritarian institutions. only slightly counter majoritarian, but generally speaking they try to stay within the mainstream of what the people are thinking which is the reason why, i think, it is so important what the american people thinking. why is it that 99 percent of american law professors to consider the possibility of a legal challenge scoffing week dismissed the merits of our challenge as frivolous and in one particular case, any lawyer who signed a complaint or brief in the case might be subject to sanctions for having made a completely frivolous argument and have to pay a fine for

having done so. a law professor who i respect said that. why is it? how is it that so many law professors missed the boat on this case? there are a lot of reasons that i will be able to go through, but one of the most important is that they tend to come from a similar culture and assume that history is on this side of the politics that they all share. there is a general got assumption that they are progressive and that history is moving in a progressive way and that everything they have accomplished can never be undone you can never go back. everything that you want is negotiable. that is the end of it. it is done, settled.

let's move on to the next issue now. that is the culture from which most law professors come. according to that culture an argument of the kind that there were making in this case is one that was completely alien to them. they believed it violated this trend of history that was on their side and therefore there were quite confident that judges tend to follow this political trends and the supreme court in particular would never consider these challenges seriously. there were simply off the wall. the tide of history is not invariably moving in a progressive direction. our case was fought in the realm of public opinion as well as in the realm of the courts, and it had to be which is the reason why we got as far as we did i

know i just got that out of time or almost at a time, actually out of time signal. let me make one further point about how it was we were able to do this. it think it might be helpful to thinking about how to do it in the future. number one, i think you have to make a legal argument that appeals to the american people generally, ordinary folks generally in a way that they can understand and appreciate. you can call these things sound bites. in some respects they are, but they are sound bites that have to have residents and also have to be consistent with a sound and, and genuine legal argument. the title of this book, unprecedented. a term that came from the congressional research service who wrote a position paper, a study paper prior to the bill being introduced that argued that an individual insurance

mandate of this kind would be unprecedented. what we did is we moved that and lead with the idea that this was unprecedented. the idea that it was unprecedented became the first of the major sound bites. the second was the recall that the individual insurance mandate the law refers to the individual responsibility of requirement. substantively they're the same, but individual mandate is something that could be more easily understood and individual responsibility requirement. the reason why the word gives some much work for us is because it means that if something is relatively unprecedented, it means that all of the previous supreme court doctrines are not exactly on point and therefore did not directly dictate the outcome of the case. now you have room to run in court. if you can establish that it is unprecedented, and many people took issue, but ultimately prevails us that every court who issued an opinion in this case admitted it was an unprecedented case.

so the last point of going to make is that what this tells us is that think tanks alone, as clever as they may be, and clever lawyering alone, as clever and smart as lawyers can be, are never going to be enough to restore the constitution, and i'm in the constitution with all of its parts, not just some, being enforced. and that is the reason why the social movement like the tea party is so important, whether it is called the tea party are not, none of this would have happened if a political movement had not formed around this issue, and i was out in front of the capitol during a rally against the bill the weekend in which the bill was first passed by the house, the bill was up to a vote in the house. i saw what that really was like. had that not been the case, and had talk-radio not pick this up and run with it in the public domain using these concepts that were able to be translated to the american people, this would not have happened in the supreme

court. it is what made our otherwise valid arguments sellable. they had to be valid arguments. .. [applause] >> it's not unprecedented for speakers to go over their time. [laughter] i will excuse it in this case.

finally it is my pleasure to welcome jeffrey will the rosen of the center which if you haven't been in philadelphia and you should go. it's a wonderful exhibit, rotating exhibits. it builds itself -- i got this awful website -- the first and only if nonprofit non-partisan institution devoted to the individual freedom the u.s. constitution with the cato come bachelet lubber? he's also with the george washington university law school, a fellow at the brookings institution and legal affairs editor of the new republic. he's a highly regarded journalist whose workers appeared in the magazine, the monthly and either atlantic people he writes for both. "the chicago tribune" named him one of the ten best magazine editors and the nation calls him the most widely read commentator. since 2002 and a moderator at

the aspen institute where he hosts panels on technology, privacy, free speech and democracy. he's the author of several books including the supreme court, personalities and rivalries that define america. he's a graduate of harvard college, oxford university where he was a marshall scholar. please welcome jeff rosen. [applause] >> thank you so much. it's a great pleasure always to be here at jeff cato. you are one of the great defenders of liberty in this country. we have so enjoyed our partnerships with you in the debate series the we started and i will take a brief epilogue to say in addition to say we the people, the national constitution center is also america's town hall and the center for civic education and increasingly on the web and on radio and television we are going to be sponsoring the debates that bring together the best minds on all sides of the issue and let citizens make up their own mind. we are the only institution in the world chartered by congress

to disseminate information about the united states constitution on a non-partisan pieces that means we bring together the libertarians and social conservatives and we are the host of the platform for these debates. it's also a special honor to be here on behalf of my friend, josh blackman and i agree this is the best book that has been published on the health care case. in interviewing everyone on all sides of the case including randy and me and many others and giving a fair minded or of getting a - of the most important and compelling constitutional cases in history. so buy it and read it. congratulations. it's also a pleasure to be with my good friend randy barnett who is the godfather of the challenge to obamacare but he is also to give him his due the intellectual architect of one of

the most important challenges to the constitutional conventional wisdom of the past generation. and i agree with everything that he said in a stock. he's correct that ideas matter and that it was his condition that the zeitgeist about the popular scope of congress that power could be changed and it was important to change not only in the courts, but also in the court of the public opinion the popular constitutionalism matters of winning the hearts and mind of the american people those are sentiments that i embrace and i congratulate him for coming within a hairsbreadth of achieving his goal. you won't be surprised to note that i am going to talk about one part of this book that somehow you and the josh didn't mention and that is what surprised me when i read the introduction namely how is it possible that this compelling intellectual challenge that persuaded the majority of americans that the mandate should be struck down failed on the conservative court?

the answer comes in the ball forward on page 11 of the book and that is the ground swing of the pa debate popular constitutionalism afforded by the conspiracy led by none other than me. on the one who denied him his victory in the health care case. here is what randy said. after the case was submitted to the court i became distressed by an extraordinary and unprecedented effort to influence the court's private deliberations. after the case was submitted many of the left to patrick leahy to the journalists such as jeffrey rosen waited while like called a campaign of the stain against the conservative justices in general and chief justice roberts in the effort to influence and even to intimidate one or more of the justices to capitulate these efforts in light of the report at that time they were at their peak when the

justice began to pull back the initial conference vote although we may never learn whether the chief justice change the vote and if so why on the court's legitimacy should it in from the the president's signature and of legislation left a stain on the entire case. strong words. he further reports and his very fair minded and forgoing account that the conspiracy went further and that essentially jay harvey wilkinson and i attended a dinner at the house right after i had written an article noting that one of the chief justice's two obamacare he would violate the pledge that he had given to me and other journalists when he was nominated but he cared about the institutional legitimacy. the justice said that he brought it to make a signature in an effort to persuade his colleagues to the institutional concerns of their own ideological agendas and he said he thought it was bad for the court and bad for the country

when the court struck down the signature of legislation on the votes. he said he would try to persuade his colleagues that in each of their decisions they should make institutional legitimacy a goal and that he really wasn't sure that he would succeed. i was very impressed by the chief justice and so my wife decided that i developed a man crashed on roberts but the truth is i took it very seriously as i lost my man crash. [laughter] >> i got it back because i always assumed he would do what he said he did and although we had a mixed success in avoiding the five touraco for decisions in the first year of the chief justiceship with notable failures like the case i always thought in the end he would do what he said and that's why towards the beginning i wrote a piece saying chief justice roberts said he cared and he wanted to avoid the votes if he were to and from what it health care act and provide the

institutional legitimacy that he wouldn't have achieved what he said. now i thought i was merely pointing out the obvious that the man had articulated and earnest vision and that this was a big test of that vision but i learned in fact i was the end of the nefarious conspiracy theory but this was a dinner that i thought was just a book party for henry wilkinson in fact as randy puts it after the discussion of the judicial restraint galvanized george will and other conservative commentators to resist am i efforts to intimidate the chief justice and it was around this time i went again chief justice roberts was beginning to go wobbly and there were reports that he had shifted his votes from the initial vote to strike on the mandate to one to uphold them cook there for the world articles calling to have a spineless steel and to resist the administration's journalists

like me and he expressed he would reveal them. in the account of that very vividly embraced his remarks the chief justice faced the test and he failed. on the one hand the opposition of the majority of the american public to obamacare and the possibility of disapproval from jeff rosen. [laughter] he was so afraid of the disapproval that in the political act he shifted his boat and he guaranteed the legacy would be viewed of one as politics rather than principle and he deserves nothing but sustained. i am here to point out that this is a complete fantasy. the entire conspiracy theory was from the motion the going slowly and on the effort in the committee. i didn't know it. the first time i learned about it was after the case came down.

and had information about the chief justice going wildly it was in fact george will. that dinner party that i stumbled into was one where george will have rumblings from the court where the conservative clerks or so of assessed the chief justice would change the vote that they were complaining to colleagues who complained somehow to george will it and he wrote these columns to shore up the chief. it was basically will who was using this inside information to try to bully and scare and persuade them to change the vote this is how we knew he meant what he said and far from the conspiratorial theory to

persuade you why you really want to take a moment to say how much respect the chief justice deserves. now you may not agree and most people do not agree to trump the ideological purity but he believes it. obviously he wouldn't have talked about for an hour or two if he didn't believe that and i happen to believe it to. i think the chief justice is correct that when the american public perceives the supreme court striking down signature legislation by the polarized political votes their fate in the metro the of the court is something that transcends politics is undermined. i also believe this is a hard vote for the chief justice of not having spoken by the way since that interview came down. i think that he was facing tremendous pressure from people like george will and the conservative colleagues was we also learned from the book like justice anthony kennedy were lobbying him repeatedly to change his vote.

it was kennedy that was so eager to get him to have a spine of steel but roberts i don't think would have cast this vote if he were a regular associate justice. he felt the chief as a special role and he thinks the great chief justice throughout history like his hero chief justice marshall have always recognized that institutional legitimacy is the key to shoring up their legacy in the long run. far from being political because as you pointed out it was counter majoritarian. they wanted the court to strike a mandate he didn't do it because he taught institutional legitimacy was even more than the public opinion or embracing the doctrinal purity is of randy barnett. far from that being an principal i believe that there are strong arguments on all sides of all constitutional questions that one of the great contributions to the constitutional debate is the idea that something that had been off the wall can go on the wall fast. and i think that is too bad that

my colleagues in the legal academy were so quick to dismiss his challenge because he did something important and he deserved huge credit for this. he changed the constitutional debate that there are strong arguments on the other side and the overwhelming weight of the president to use a word that comes out of what in this book was against you said the chief justice is confronted with a situation where the precedents and the conventional legal opinion .1 way and randy barnett is pointing another way and he could choose between these arguments. but was this pure? of course not. it was the kind of twisted to use john marshall's wonderful epithet the one that thomas jefferson applied to tom marshall -- john marshall. he was choosing among the competing arguments and justice ginsberg wasn't persuaded by the decision to strike it down under the commerce clause. but it was a decision of which john marshall would have been

proud and was well within the scope of the existing legal materials and you don't disagree with that on the substantive grounds but to accuse him of being political or even giving him a weapon for any journalist or even president obamacare. i was surprised to hear in your introduction your notion that he cast the vote because he was afraid of the attacks on the court. i don't think he cared at all about that. i think that he was pursuing their vision he articulated when he took office and he did it very well. now how does he come down on this question? here i have to confess to another surprise i left my copy of this book in philadelphia when i was preparing for this panel. this is what i agree that the conclusion of that earlier copy of the manuscript. in the and however the chief justice of the united states like john marshall before him

john roberts of the special responsibility falling on his shoulders. he ably and unselfish lead this charge the student. now why can't the final version of the book. they hope to the decision will help preserve the unique role in the american democracy only history can decide how we discharge this. he really toned it down. i have to ask what is the decision to change the characterization of the chief justice it is a conspiracy by randy barnett. they worked and invited him to a dinner onawa. i want to hear more about why you did that. but i felt at least in the

earlier draft, you seemed to be praising him for the same things i did for essentially doing what he said he would do for beating out of his own sense of institutional legitimacy and to deserving praise for that. this talk of conspiracy is unfortunate. there is as we know right on the left the stand on american politics that richard called the paranoid style in american politics and talked about the history as a distinctly personal. the enemy is to possess a source of power that he controls the press. he has a new secret and special techniques. i think the stock of intimidation and conspiracy is unfortunate. now it's not unique to the libertarian right although hostetter was talking about the goldwater right and also the fees' this applied to the

patriot movement and the tea party then we see it on the left but historically as described in the popular movement that demonized the banks and also i would say in some of my own riding i have written about a libertarian movement to transform the constitutional notions of the calls and it is led by powerful figures of secret techniques for influencing the press like randy barnett, and especially in the hands of the photo editors i think that thesis that twisted in a way that mirrored the conspiratorial talk. so i think here is what i want to say about how this comes down. i think that randy barn off format is not the head of the conspiracy is the head of the intellectual movement and i think what he's doing is trying to persuade the hearts and mind of america is important and his influence is great and many

judges embraced his vision who struck on the health care all the other judges have not embraced the vision and those include more traditional restraints like judge jeffrey sutphen and larry silverman for whom i have the greatest respect and i was interested to learn in your account that that panel on the federalist society that i moderated where i talked about the tradition of the restraint and he said maybe the shoe is on the ever fought. shouldn't we conservatives be attentive to these claims and are we the activists now and then he notes that he later upheld the health care law suggesting he was influenced by those challenges. again that wasn't an attempt to intimidate him it was an attempt to call him and other conservatives to their own principles and continuing to embrace the restraint side. so all i would say is i hope this important debate goes forward in the country. let's abandon efforts to personalize it to imagine their

insight and deal with secret meetings. it's a battle of the constitutional ideals which is a wonderful thing that's why we exist to host the center and i'm so glad to have participated in this debate in the health care case. i don't know the future will bring. randy is optimistic that the opinion will have legs and restrict the scope of the federal government. i interviewed justice ginsburg of the center on friday and asked about the case and she disagreed although she is a strong dissenter from the opinion she believes it will not have the staying power and thinks that in the end of the new deal understanding of the commerce will survive the title on the president is misapplied to the health care law committee cannot be unprecedented.

as justice ginsburg said on friday they arrive to respond to the unique situations of the moment. time now works many changes as my hero justice brandeis it has to rise to the challenge. a judicial decisions can be unprecedented. it would have been unprecedented for the court to strike on the centerpiece of president obama's economic legislation. thank goodness it is a tribute not to the political instincts, but to the constitutional principles of chief justice john roberts. thank you. [applause] my version of the conspiracy is not that the president or senator leahy little on the journalists caused john roberts to change his vote that is the perception of the american

people and the perception often is important and certainly contributed to the loss of the legitimacy or the popular respect for the court which is again i ron ackley as i pointed out one of the reasons presumably that john robbins acted as he did. what i'm arguing is that he was persuaded in one way or another but by taking these extra legal considerations he misfired and that, he miscalculated. we don't with the reputation is but at least it has been a year and a half and the court was damaged by his decision. comments him? >> they were terrific. i can't say that i agree with all of them the way he said he agreed with mine.

calling out of the conspiracy theory after writing that "new york times" piece on the constitution exiled movement which was a very conspiratorial sounding not just the pictures that the story itself had made it a movement there is an irony objecting. let's talk a little bit about this particular issue and this particular case. i don't know what was in his mind. i don't know if he was influenced by jeff, and it wasn't just jeff but it was a cacophony of abuse heaped upon the court from the very moment that it was revealed but it was four or five votes for validating the affordable care act. for the historical record by, called the degree and expansiveness of this vociferous

objection for the conservative justices the attempt to demean and sustain them in a piece i did for the harvard law forum on line called the d'aspin campaign and which i document this outpouring of rhetoric aimed at the justices while they are being deliberated. as i noted i was a prosecutor and county of away trying the trials which you know cook county has kind of a reputation for some judicial on savory mess even once the case went to the jury i could go back to my office and work on other cases thinking that the jury wasn't going to be tampered with. and yet at the moment the case was submitted so to speak literally in the court an outpouring of objections from the president of the chairman of the house senate judiciary

committee pat leahy all the way down and two jeff rosen objecting to what they anticipate it might be a ruling that would stand, about what support the ties of history and call the legitimacy of the court into question. but i don't know what actually affected john roberts, but i do know this. jeff argues there were arguments on both sides. the supporters of bill will make another reasonable argument and i spent all my time there was a reasonable argument on our side, too that they were dismissing as for the west. i never denied that this was a close case that could go either way given the existing legal materials and insistent upon it as a matter of fact. however, whatever the consensus was, this was a choice between vision of the constitution and unseated by the liberal justices and justice ginsburg and stephen

of opinion which argued that this was clearly constitutional under the commerce and also under the tax but also as a fallback pherae. but never -- or it was unconstitutional under the theory that we articulate which ended up being very ably made by the joint defending opinion in the case. but this was in the other version of the constitution no one, nobody, no judge ever made the position publicly pitted nobody said that this law was unconstitutional under the commerce and proper clause but was constitution under the seating construction of the individual mandate which would make it not a mandate at all but an option to buy insurance or pay the tax and that had to be a non-punitive tax and therefore it could be said that could be saved by deceiving construction

of that. nobody said that. there were law professors that argued a judge could do that if they wanted to someone saw the position was available to nobody advocated that position given only john roberts unique if every judge that ever consider this case democrat appointed or republican appointed salles this is the legally compelled come well it does suggest a given the fact that on one hand he joined with of the justices to accept all of our constitutional argument is invalid on the other hand he found a way to uphold the affordable care act. this is what suggested that this was a political decision and not a judicial decision. this was the ground that your colleagues urge the decision be made on political grounds, not maybe the partisan political ground although he said again today that it would have been unprecedented for the president to invalidate the would be the centerpiece legislation for the supreme court to invalidate what was the centerpiece of a

president's platform. that is a political argument to the that is a political consideration that should absolutely nothing to do with this case. but you made that front and center. as did your colleagues. and that is what made this decision seem like it was political and it was reinforced by the chief justice roberts own reasoning which was political in the sense that wasn't legally compelled or if it was he is the only justice to have seen that as the legal rationale for the case and apparently reporting this he only saw that is the legally compelled come sometime after the friday conference following the three days of the argument it occurred to him that this was the right justified outcome and i just think that that is the reason why this case is tainted. it isn't a conspiracy theory. it isn't about somehow you communicating with the justice. it is what i said which is publicly known the confrontation of the court and the way john roberts responded by ruling the way that he did in public which everybody can read and draw

their own entrances from. [applause] >> on the campaign of d'aspin it wasn't a campaign of disdain it was a campaign of respect. it was a campaign of respect. if you read that piece it was completely mild-mannered. it sets out what his vision is and so if he strikes down gulf and he wouldn't be fulfilling the vision so there is no distain. i also think that you can't argue that it's important to change the heart and mind of the american public when it comes to the constitutional arguments and then criticize commentators after the supreme court argument for making strong constitutional arguments and saying the court would be violating their vision of a constitution that it will certainly. that is the constitutional debate is about and it is appropriate for the present and the senate judiciary committee and any boulder or journalist like me to make an argument. that's what we did and i think there was a good thing.

now, john roberts there is one phrase that i regret. thank you for pointing it out. the problem is in that it would have been unprecedented for president obama's economic legislation. that is in the right way of putting it. it would have been unprecedented to and probably an act of congress off today for the social and economic legislation that was deliberate extensively and then passed by congress. you know that i am an opponent of judicial activism on the left and on the right to buy it expressed questions about roe v wade in the the court needs to strict on affirmative action and abortion law so why don't share your constitutional vision that the court should be in the fitness of invalidating the act of congress and i do embrace justice ginsberg's act of activism which he repeated at the national constitution center on friday as the accord is on the most tenuous ground where it strikes down the act of congress

because those generally represent the national consensus and i think chief justice roberts was moved by that in his health care opinion and said the court should be cautious when it strikes down. so that's what i think he was getting out and finally and i think that this is an important point of disagreement, too, and you are equating roberts concern with legitimacy with been political. ..

the democrats to had opposed the mandate before the health care came down switched that position and actually supported the oppose of the mandate after the decision came out. there was illegitimizing effect of the court decision that made them canceled out by republican positions but broadly it does not seem to be affected by the health care decision. numbers have been slipping since the robbers took office, but the truth is the public does not pay attention to the post. they don't even robber that he switched his vote. when you make claims about the effectiveness it is important to look at the empirical evidence. >> let's open the floor to questions. and i am going to a -- normally i would rate for the microphone, give your identification and actually ask a question. i will relax that rule. in response to some of the activism discussions year. >> the first question. >> wait for the microphone over

here. >> great book. a really tremendous job on that. so congratulations. wonderful event. you guys should maybe think about pitching this. get a little sitcom going. let me ask you a question about the institutional legitimacy. i am a litigator out there working with real people every day, and i have to tell you, the average person in the street fights much of what the professoriate excepts as sort of bread and butter constitutional law appalling. the backlash against that decision where people basically found out for the first time that the supreme court has drawn property rights of the back of the constitutional shelf and

does not think it's anybody else's business. this was a real shock to a lot of people, and i think the extent of the disdain for the supreme court's federally jurisprudence, the idea that a growing a plan in your backyard and giving it to a neighbor is interstate commerce or at least can be regulated under the court's -- i'm sorry, the congress's adjusted commerce power is not just appalling to americans but frankly for many of them they ridicule that. it's not believe it has any integrity, and i do not either, but it seems to me at the professoriate should pay some attention to what people think cannot dismiss opinions as easily uninformed. so further questions, maybe was also the professoriate that mixtec clean up its house. >> i agree 100 percent. it's made among the people, not among the professoriate,

although it can help persuade the people by putting new ideas on the horizon. i was at a conference before the health care decision came down where i heard a professor express just contempt for randy's decisions and say, they do not even deserve to be written about. the argument was that the new york times did not even describe them. it was at yale law school. i thought that was unfortunate. when it goes against everything that it stands for and is also as strategically for the professoriate to bind itself to the whims of constitutional change. correct. you're focusing on the constitutional change, and i hope as a democrat that the

liberals learn the lessons that you have learned. i am a libertarian. realize that they have got to persuade people rather than just smugly assuming that is his constitutional law is going to be tomorrows. >> i'm a professional academic. my bread and butter as a law professor which is what i think of myself as first and foremost. i will state the obvious. my line of work is 99-1, and that is generous. georgetown, we have over 110 year to a tenure-track law professors and three are identifiably right of center which makes us one of the more diverse law schools in the country, to have three. [laughter] and so what this does is it breeds a corrupt culture of majoritarianism amongst it. it would be true if it were 99

to one the other way. nobody then of things these things. those of us who are within the academia @booktv i am treated very respectively. i have a very good life. and speaking elsewhere, but i can be dismissed as marginal, just in their own minds because they only -- there are many, many more of them. it is a cultural thing. they're taking control. the control of a conspiracy and not, but i've been on the pawn bins committee. been on the inside watching the discrimination to replace against folks like myself. and of this is an actual, factual thing, and they have taken control of the institutions and therefore, we have had to rely on counter cultural institutions like the cato and certain other places that are now within academia in

order to strike back. and then what happens, the progressives have institutional in the of people like the cato institute. they write articles about how the institute for justice and the cato institute have combined forces in this great constitution exile movement conspiracy when, in fact, the institutions of power are being controlled by the left in a truly remarkable fashion. now, your comment, i was not there, which i think is interesting. no one like me was. i just heard about it, but i want to say something positive now, something extremely positive about the press and the press coverage of this case. that is something. i can't remember if just put my statement about this in the book. the press coverage of this lawsuit was fair from beginning to end. it was fair. it was knowledgeable they have

members of the press on the panel. the fairness of the coverage. there were inappropriately elevating the credibility of folks like me. in the press should have been reporting that the judge's were stupid. the press was not even handed. in fact, to add to the criticism, the reality is the press was remarkably even-handed. cover the case fairly. was never quoted out of context or in accurately. of the stories that i read about the case were fair and balanced in the sense that they fairly reported our side and fairly reported the other side, and they also fairly reported the fact that the consensus of opinion among legal experts was that we had a chance. that was the fact that was fair to report, but i want to commend the reporters who worked on this case. the reporters who worked on this case were better at

understanding the dynamics of this case than a law professor supposedly were paying attention to it. and i think that -- and the reason -- i'm trying to think why there were some much better, and i don't really have a complete answer to that. i think part of it was as they covered the case from the very beginning to the end, they were at the court rooms, like we were. they were all the arguments. the interview the other side and the india, and over time i think what we told them was proven to be reliable and credible. they listened to us more as time went by. we proved ourselves by being more accurate or at least fair and balanced. they did not dismiss us as crazy, the left west that they had. >> one point. this case underscores how important thing tanks are. the arguments against obamacare, they went into law reviews and came from heritage white paper. and the validity of the think

tank, very much a copy of conversation and the ability to be relied upon and their ideas subcritical the cato institute is in these challenges arise in the remarks i am pleased to respond appropriately. >> them as our advice on the procedural and substantive, right at the beginning. i was debating once with the other. it was at amherst. and one of his arguments, ours was a crazy position because nobody had a top-10 law school saved richard epstein's support of randy barnetts position. of course, georgetown is, i guess, not in the top ten. they are 12. purposefully, but anyway, only

that there. i was expecting you, the reason i gave you the sensation, that you're going to go into this activism restraint thing, how do you acquit clause. he has a new book out on judicial engagement which will have a forum on in december. october, next month. it's basically where you stand is where you said. if someone is talking criticizing somebody for being an activist, it means they did not agree with it. ginsberg talked about activism in striking down voting rights. she wants to strike down lots of cases. the debate should be about are you getting the decision is correct in not. but some days that. not this other appointed term, legalistic. over there. >> hi, i appreciate the panel.

looking for doreen joshes but. taught at george mason -- george mason law school years back. anyway, i would like to ask the panel about future challenges to this law and the court's decision that said even if the taxing power enables congress to impose a tax on impending tax her health insurance the most comply with other requirements and the constitution. a big one is the origination cause this is all bills for raising revenue must originate in the house of representatives. besides the mandate tax, there are 15 other revenue-raising provisions in the bill that are raising hundreds of billions of dollars, and currently before the d.c. circuit is an appeal raising that very issue. i will be representing congressman franks and others who co-sponsored. he is chairman of the subcommittee of the constitution are during this very point. they have a house resolution

that said that obamacare is unconstitutional because it did not originate in the house. i want to know what the panel's view is on the viability of that argument. buses leave it that. you can respond. >> i'll take that. thanks. it is a very interesting theory. you already stated it accurately. i will restate it. my view, first of all, i refuse during the two, two and a half years during which i have challenges to ever make a prediction on how the case would come out. i might have had a pretty knowledgeable opinion about how i thought it might come out, although it changes over time. i never make predictions. i reject and object to the attitude of most of my colleagues who base all of their views of constitutionality on their predictions of our core will or will not rule the future as opposed to the validity or merits of the argument itself. i will not state opinion about how likely i think that

challenge is to succeed, as i have never stated that opinion of my own challenge. i will simply say that it has the virtue of validity. it has the virtue of being a very strong argument. like jeff says, pretty much every constitutional argument, there is one on the other side. and there is for this case as well. it is not an open and shut case, but no argument is. it is a very powerful argument that i think making a valid argument is a necessary but unfortunately not sufficient basis for actually getting the correct outcome in the case. >> this will be the last question. >> trevor from the cato institute. my question is for jeff rosen. two parts. do you think that roberts taxing decision legally speaking which has not been raised, strategically, is it compelling enough to do the work that it did, or should it have been

reprieved if you wanted to ask about taxing power? secondly, how did your opinion of arguments change overtime as there are raised and discussed. randy's arguments in particular before. >> good question. thank you for asking. it is a very legally plausible argument. solicitor general parolee's greatest contribution was making it as strongly as he did. he teed it up very well. yet even on the other side, the legislative history, of course, it was comedy of the fact of the democrats originally said, it's not a tax. it's not a tax. then they said that it was. and then they switched. now the democrats say that it is a tax and therefore is authorized by the constitution. the republicans say it is not. for an original list is not care about legislative history, think that should be less important than the function that the tax service, and roberts did a fine job in embracing an argument that was strong from the

beginning. added my opinion change? i always took brandies challenge seriously. i don't know. like randy, i try not to predict. for what it's worth, maybe it was the man crash, but i was reading for roberts. i thought he would pull something of a south. i did text a friend before it came down, i think it's not going to be 5-4 against. i was delighted. >> josh, before we adjourn, i want to ask you, what was the most surprising part of this for you as you wrote the book? you follow the arguments, follow the case, are a law professor and the clerk throughout most of the, but then you got to actually writing the book, interviewing people. what was, kind of, the most surprising nor interesting thing that you learn through this process? >> thank you very much, jeff, randy, everyone. it has been a pleasure.

what surprised me the most about this case was how significant it was. there are lots of laws passed by government that people might not like, but there is something particular about this law that triggered a reaction in the american populace that had never been seen before. something that made academics work overtime, around the country something that made jeff rosen cling to his man crash that john roberts of pulled it, something about this law in a manner which it passed. i don't know exactly what it is, but this case was so important to everyone, the constitution does matter, competing visions of what the constitution says to my charter of limited government research with the federal government can do, or does the constitution in power the federal government to enable people to pursue happiness there social security? the two competing issues were on display in this case so vividly, and it was really this and not so much taxing and commerce doctrine that people were worried about, but what the

relationship was between the person in the state. healthy for let me do my own thing? and that will be the class which world must contend with. places like kale and brookings canal the constitution comes down. this is just another step in the journey, the process. >> well, with that, let's thank our panel. [applause] you will be able to buy and have signed joshes buck outside. we will now adjourn to launch up the stairs on the second floor in the conference center. bathrooms on the first floor beside the elevators and dancers along the way launch. we are adjourned. thank you. [inaudible conversations] >> you're watching 48 hours of nonfiction authors and books on c-span2 book tv. >> a little bit about -- it

tells about his father was a prominent freedom fighter has been many, many years in jail. a cousin tell me when i was in calcutta interviewing, 2011, in jail was like a house to him. so i'm going to start with that. ever since he was born, he was likened to his father. he was as handsome as his father with the same striking jaw line that they both men a distinguished chair, a sense that they belonged to a secret world of privilege that led beyond wells, intellect, bloodline. in a society where skin color was a defining force, they were both fair skinned, a clear advantage that afforded them a natural superiority. both were known for their generosity and obliging way that over the course of their lives with wind and steadfast friends and loyal followers. but beneath the surface the

similarities ended. unlike his son he came of age in an occupied country, living in difference under an imperial power as a descendant of one of india's oldest bloodlines he was also ironically one of the chosen ones. he would be tapped and trained to perform like and englishmen all in the service of the england -- the english empire. while he received a proper british education, he rejected intellectual servitude. on the morning of thursday, november the fifth, 1964, his eldest son, 15-year-old dressed himself, carefully dripping his body. growing up in a close-knit indian family, the youngest boy

moved to new delhi in the 1950's it was the custom to shouldering responsibility. he and his older sister were always looking after their younger system -- sisters. by economic necessity they had two careers long before it was in vogue. upon his release he took up journalism as a means to support himself and his family. his own revolutionary ties to the leaders of the newly free india helped him rise. after india's independence he was dispatched to start the daily edition of the hindu standard, a frequent visitor of the official residence of the president of india and well known among the daily press corps that the country's first prime minister called him by his first name. said trusted, he would often seek his counsel and added to the press. born as a british subject, through hard work and sacrifice he became an insider and modern

india. he walked into the room of his uncle's calcutta home to say farewell. shrouded with roses, marigolds, fragrant jasmine, his father lay in a coffin. as is customary, the body was washed in purified water and dressed in a loose fitting shirt and no white goatee. when he arrived at the hospital the previous day he was told that his father was dead, but as he stood at the entrance to his father's room, he saw plastic bag still attached bubbling with hair from his father's last gasp. for a moment he thought the doctor said mistake, but the years of struggle and incarceration had taken there toll. at 56 years old he was dead of kidney failure. in the months leading up to his father's death -- death he spent a lot of time with his father, accompanying him on long walks and listening to stories of his

time in the freedom movement. he learned that his father had been intentionally exposed to tv in prison which ultimately cost him something. his skin was split open over and over again during one particularly brutal interrogation. yet in spite of it all, the father he knew was kind and obliging to everyone. he would later recall that he never spoke ill of anybody, and i would have thought he would have had a lot of resentment built in to him, but it was not true. this attitude was true of most of my father's generation. they were quite extraordinary in terms of simple living and high thinking and not thinking about the people. this morning in front of this house a crowd gathered, neighbors, friends, and admirers descended like pilgrims on a journey. adobe men and their donkeys watched as the coffin was placed

into a glass top hearse parked in front of the red desperate towns with green shutters. in tribute they brought their donkeys away from the mourners and solemnly cleared a path for the procession. at 9:00 a.m. the hearst closely followed by cars carrying the immediate family departed. as they approached the top of this tree they could make a shine from the hindu goddess of destruction. the crowd was led to a white town. on the other side of town his former jailer raced to catch one final glimpse of the man. he ran to a crematorium and then itself to the funeral parlor to no avail. he found the right destination with his last guess. he elbowed through a crowd of hundreds of friends, family and

made his way down the row of bodies stacked in a line to be cremated. at last after pushing his way, the former prison guard made it to the coffin. his teenage son was just completing the final death rates in the silence that followed he was able to place what was left of the lotus flowers on the seat of his fallen friend. he then helped roll the stretcher holding his beloved father's body into the orange flames of calcutta's electric crematorium. overcome with grief then muttered a prayer. i try to atone for my son. if he had not been unwashed and his own sadness that the premature death of one of india's unsung heroes he might have heard another voice choir of the besieging a higher power. who will show me the way in the world?

>> you know, this is an incredible amount of rich detail. >> you can watch this and other programs online at booktv.org. here are some of the books that were published in 2000. the third year of book tv on c-span2. >> the people's camp that was being set up. they had caught a member and he was put in prison, but the people rioted in demanded his release. he was given over to the people, and they have a public execution i was nine years old when i

witnessed my first public execution. >> and you also write, the soldier's head hangs bobbing up and down like a chicken's, blood gushing out, flowing down his forehead, years, and dripping from his chin. the woman raises then hammer again. i almost feel pity that it is too late to let him go. too late to go back, too late for my parents and my country. as you hear those words commander obviously wrote them, do you feel that moment? >> guest: yes. i wish i didn't see it. i have spent so many years wishing and never saw it, but i saw it. it is an imprinted upon my brain. i have tried for years to get it out. it was too late for them and it is too late for me. >> political commentator bill o'reilly spoke. the orally factor was published in 2000 as well as matt dredges dredge manifesto.

>> where did you get the idea for this book? >> i did not want to write a book. wanted to find my father. he died at the age of 70 in 1994, and he had never talked about it. i found my mom after he died and said come on, there must have been some pillow talk. tell me what he said. she said, that won't take long. he only talked about it once on our first date for seven or eight disinterested minutes and never again did i hear the word from your father. well, what was going on here? my brother mark is surging in my father's office and opens a secret cause a door in that closet are two cardboard boxes, plain, ordinary, like john bradley, but in those boxes

we were surprised to learn my father had saved 50 years of memories. at the bottom of one of the boxes with the letters that he had written home to his parents three days after the flag raising. in that letter he wrote, i had something to do with raising an american flag, and it was the happiest moment of my life. ..