if you do have the choice, i think women should be trying to do what feels right for them and one of the things women do a bad job that is not legitimizing other women's choices. one thing you will see, your too young but anyone old enough to have sat on the playground with their kids knows this little scenario that gets played out a million times, do you work? do you stay at home? a lot of judging going on. ..

>> first of all, whether you chose to sort of target a very niche group of women when you were writing this book and how and whether you deal with issues of race and class with all of these issues of perfection. >> yeah. it's a really good question, and i know it's one i'm going to be getting a lot. the book is largely about white women, women of privilege and straight women. and it's that way because that's who i am. and i made the decision early on in writing the book that that was really what, for me, was the only honest route to take. if i had tried to include chapters -- oh, and this is what it's like to be poor and black, i would have had to write a very different book. and so i decided to be what felt honest to me and say, you know, this is the world that i've experienced x it is a very -- and it is a very elite world, you know? i'm not struggling to feed my

family, thank goodness. but i think it's worth at least conveying these problems even from the iewb rah elite if that's what most of us in this room are. because i think what i've heard in the early sort of versions of this which has been very reassuring is that women who aren't struggling more, they feel more validated to realize that even the women who are wealthier and have had more opportunities are struggling too. that we're not any more perfect. we may have higher levels of education, but we ain't perfect either. >> sorry. one more. >> yeah. >> this is just, i'm curious about your personal view of whether you think of the goals of feminism shift depending on what social strata you come from or what -- >> yeah. yeah, and i think, again, i say this as someone who's very much an interloper boo this area -- into this area theoretically. as feminism has evolved, there's been many, many sub-genres, and

some of them agree on overarching things, and some of them don't. and it sort of ties back to the last question. at the end of the day, you don't want to get too personal about it so feminism just becomes me, but we do need to realize people's lives are going to play out in fundamentally different ways. i wrote a related article many "newsweek" about a year ago, and i received a ton of mail. and the one, the letter that stuck with me the most was from a young woman -- much closer to your age than my age -- she's a coast guard officer off the coast of alaska. so she lives a fundamentally different life than i do, and yet she wrote your article described my be life perfectly. i'm like, how is that possible? you're on a boat. [laughter] but the issue about equality in a marriage, struggling to decide whether or not to have children, those issues do transcrend to some extent.

shoot over there. >> thank you so much for doing this, this is incredible. you talked a lot about the choice of having children and what it is to be a mother, and i was wondering what do you think about those women for whom having a children is not a choice and the way that inherently affects the perception of your femininity and value as a woman, and do you think we're past the place of a woman being only as valuable as her ability to reproduce? >> it's a really good -- they're all great questions. i have a chapter or a subchapter in the book that i call pregnancy porn which i like as a title, but it's also, i think, quite important. we fetishize pregnancy in a way that i think is quite detrimental. and i think it's worth, you know, all of you just giving some thought to before too much longer. we really do still value women as producers of children. you know, despite everything

else women do and that we're assessing them for, again, pick any magazine off the schells. how many -- shelves. how many times has jennifer aniston been pregnant? she's been pregnant for 15 years, as far as i can tell. there seems to be a stigma unless she produces a child, her life will not be complete. i don't think it's what defines me. and i think once again i've had a number of women in response to sort of the last question say, you know, what's the book, this kind of book for single women? single, childless women? that wasn't the book i could write, but i think somebody should write that book, because i think that's yet again another kind of choice that we need to validate. and i know, you know, it's one of the sort of, you know, ugly bits of truth out there. if you look at women who really have achieved the highest levels of power, particularly women who are a little bit younger, many of them if not most of them don't have children. so they made that choice. and i think we need to, we need

to validate that and say it doesn't reflect on your sense of worth to not have been a a mother. >> i think, i mean, maybe i'll just clarify a moment. sorry to keep taking up time. >> yes. >> i'm asking for women who can't have children. >> oh, okay, thank you. >> and the level of, like, pity when you say that to another woman, oh, your life is so incomplete, you poor, barren soul. [laughter] >> yeah. i wrote my last book on reproductive medicine, it's called the baby business, so this is something i've given a lot of taught to. we absolutely -- this is, again, another expectation that we've lobbed on to women. if you go back 40 or 50 years ago, 15% of women are infer tile. that's just a natural rate of infertility. so 50 years ago, if you were infertile, you just moved on.

sometimes you adopted, most times you didn't, and it was not that much of a stigma in american society. again, tragically now because we have assisted reproductive technologies, we've raised the expectation that of course you'll do ivf. of course you'll get a surrogate. of course you'll use donor eggs. these things can be dangerous, and they actually don't work -- the success rates are not nearly as high as the media would have you believe. so women need to be very careful about not jumping on those particular bandwagons if it's not where they want to be or if it doesn't work. and also as my third daughter -- many people know this -- was adopted. that's still a really, really, really good option that, sadly, has somewhat fallen out of favor because people jump so easily to assisted reproduction. the end of my sermon. all right. [laughter] >> thanks so much for being here. this is super exciting. i guess my question is like all of us sort of head into the workplace, think about having

kids, what are the sorts of things and decisions that we can make with our employers in terms of negotiating and fighting for the things our employers can do to maybe make our lives easier and maybe make us, you know, allow us to work and also take care of our kids? and also sort of this conversation about people not wanting to hire maybe people of our age or people with an engagement ring on our finger because we might be having a baby in two years, so how do we balance that, i guess. >> again, really good set of questions. i mean, the first thing i think just to feel somewhat better about is most sophisticated employers today, hay don't engage in that -- they don't engage in that kind of bad behavior anymore. one of the things i hear constantly in the city is how can i get more women in the pipeline? come to barnard and recruit here. [laughter] but employers are very conscious of not having enough women. so i think in general it actually does still work a little bit to your advantage to be a smart, hard working young

woman because employers are looking for that. and i think they'll, you know, overlook the engagement ring on your finger. after that point, so once you've gotten in the front door, i think, first of all, it's really important to think about as much as you can at point in your life -- at this point in your life what kind of careers are going to give you the kind of flexibility that you want. because it is easier to juggle life and work at some jobs than others. it just is. and, again, it's not always very popular to say, but i think it's really important to say. and if you look -- medicine's an interesting field. there's a lot of women doctors, successful women doctors. over the 30 or 40 years that women have been in medicine in serious numbers, they've shifted in terms of what subfields they're in. turns out it's easier to be a female emergency room physician because you actually have regular hours in emergency practice. somewhat ironically, it's harder to be an ob/gyn because the babies come when the babies come.

so we've actually seen a shift. another really interesting one, if you're going to be a corporate lawyer, it's hard particularly -- well, throughout your career because you're billing hours. look at women judges though. no less prestigious. there's a lot of women judges. because judges actually have regular hours. so even within fields, i think you can't go in and put all of the onus on the employer. think about where in the field it will be easier. one of the reasons i went into academia was because i knew i could control my schedule. which i still do. i work hard, but i know at the end of the day i'm judged on my output rather than hours behind my desk, and that's given me crucial flexibility. the first thing you can do is be good at your job. they're going to want to keep you regardless of what it takes. and then the second thing as you go through your career is make sure that you have the kind of relationship that you can go to your boss and not ask for everything, you know, i want to

take sick years off -- six years off and come back at exactly the same pay, but this is what i need. i need friday afternoons. i need monday mornings. and, again, if the boss wants to keep you because you're valuable, they will, in most cases, do what it takes to accommodate. again, presuming you're in one of those careers where you're not -- billing hours is tough. but most other careers they want to be flexible, you just have to help them think through what works for you. >> great. >> all right, let me take one last one. >> hi. thanks. so i guess can i just wanted to ask i'm really terrified to make the decision of what to pull back on, and i equally want a career and a family, and i'mer the tie toed of -- terrified of making a decision, well, if i have one child and not two, is that pulling back or putting this child in an only child situation and that's awful for her, and what if i pull back in my career and yada, yada.

[laughter] these are the things i think about, and i'm 20. [laughter] i guess i'm asking you how do you know what to pull back on? because i agree that i can't do it all even now, but i just don't know where to even begin with that process. >> yeah. first of all, i don't think there's one right answer, clearly, there's not one right answer for everybody. so what works for you is going to be different than what works for you. i also don't think you can explicitly make these decisions when you're 20. no, i think you can make part of them. i think you can think about -- you know, if you know that at least in an ideal world you would like to have both a work life and a family, then choose a career or subfield within a career that at least opens that possibility. of flexibility. and i'm not talking about necessarily 15-hour week, but, you know, maybe, you know, career a where you'd have to work 90 hours a week is not the right one for you. so, you know, give yourself the possibility of some kind of

flexibility. and it's way too early to think about whether you want one kid or two kids, what whatever. but start even now learning to say no. and learning to say no to things you like. we're all good at saying no to things we don't like, but figure out what are the parts of your life that you're just not willing to give up. and what are the parts of your life that even hoe you like them -- even though you like them, you can cut back a little bit. don't make yourself crazy doing this, but you're all busy. think about i love this club, i can't give this one up, i really like this one, maybe i have to cut back on this one. maybe you'd love to get straight as, but it's going to come at the extent of your social life. b+s are okay. they're going to put that on the front page -- [laughter] but they are. unless you're planning to go to graduate school where you absolutely have to have as.

but there's a certain kind of muscle memory there. learning to say no and, you know, to say no to the things you like is one of the most valuable skills you can, you can develop. and the earlier you develop that, the better. so let me end there, turn it back over to nicki, and thank you all so much for being here and for your great comments. [applause] >> booktv is on facebook. like us to interact with booktv guests and viewers, watch videos and get up-to-date information on events. facebook.com/booktv. >> she was the power broker behind her husband's admission, and after he died and news of corruption began to emerge, she burned his letters and documents in an attempt to preserve his legacy. watch our program on first lady florence harding later today at 7 p.m. eastern on c-span. and live monday our series continues. >> this is the clark school for the death where calvin and grace met for the first time.

she was a teacher living in a dormitory here, and he was a tenant in a boarding house on the property. >> we're now in grace's bedroom in her clark school dormitory building, and this window here is where grace would have looked out and seen calvin across the courtyard at the next building, and she would have put a candle in this window to signify to calvin that the parlor room below them was available for them to meet up in. in this room was where calvin and grace when they were courting would meet up and be able to sit and talk and have some time together. despite him being in his 30s and her her 20s, they still had to abide by the rules of the school and needed to meet somewhere where they were supervised and chaperoned while they were on campus. >> meet first lady grace coolidge monday night, live at 9 eastern on c-span and c-span3, also on c-span radio and c-span.org. >> next on booktv, josh

blackman 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 to an unprecedented book forum. [laughter] my name's ilya shapiro, i'm a senior fellow and editor-in-chief of the cato supreme court review the latest volume of which we're releasing tuesday at our conference that i hope you will all attend as well. today, however, you're in for a different kind of treat. josh blackman be 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's ruling let alone its implications 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, which "the wall street journal" called excellent, offers unrivaled access to the key decision makers based on interviews with more than 100 people who lived the journey; academics, attorneys, activists. now, 14 months have passed since chief justice john roberts made obamacare's individual mandate a tax. i was in the courtroom that fateful june day, and my emotions quickly cycled through shock, denial, anger and later depression before -- [laughter] settling into the bargaining stage of grieving. >> still not over it. >> to be sure, as i'm sure randy will discuss, the decision was a constitutional win -- a constitutional win in at least four ways. it's now clear that the government can't compel activity in order to regulate it, legislation that's necessary may still be improper and,

therefore, unconstitutional, the narrow tax power ruling allowed the government only to levy small taxes on nonpurchases, but congress probably won't ever use this power because it can achieve the same economic goal by offering politically-easier tax credits, and for the first time the court by a 7-2 vote found that the federal government can't can coerce the states by attaching too many strings on federal funding. still, by letting obamacare survive in such a dubious manner -- i call it a unicorn tax, a creature of no known constitutional providence that'll never be seen again -- roberts undermined the trust people have that courts are impartial rather than political actors. i never thoughting i could feel so empty -- thought i could feel so empty after having court majorities offer such ringing endorsements of my theories and not mine alone on the commerce necessary and proper and spending clauses. what bothers me isn't that roberts changed his vote -- judges do that regularly -- but

instead that his action section simply doesn't compute. even justice ruth bader ginsburg who expressed skepticism about the taxing power justification during oral argument was quizzical about roberts' theory when she read a summary of her partialdissent from the bench. roberts decided that he needed to uphold the law while not expanding federal power, and he succeeded in squaring that circle with the ruling hinging on a head-scratching tax on inactivity, a piece of legislation no congress would have passed. >> the sad thing about this code is that the chief didn't have to do what he did to save the court. obamacare has always been unpopular, particularly the individual mandate, which even a number of democrats in a national poll thought was unconstitutional. for another, he damaged his own reputation after warnings from pundits and politicians that striking down the law would be conservative judicial activism.

most importantly, the whole reason we care ant the court's independence 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 accrued respect and gravitas. instead, we have a strategic decision dressed up in legal robes. i'm reminded of the 1966 film "a man for all seasons" in which richard rich purges himself so that the crown can secure sir thomas moore's treason conviction. rich is then promoted to attorney general of wales. upon learning of rich's connive advance, moore plaintively asks, why, richard, it profits a man nothing to give his soul for the whole world, but for wales. well, in refraining from making that hard balls and strikes call he discussed at his confirmation hearing, john roberts sold out the law for less than wales, thereby showing why we don't want our judges playing politics. here to tell us all about this sordid tale is josh blackman,

specializing in tights -- constitutional law. josh is the president of the harlem institute, the founder of fantasy scotus.net and he also blogs at josh blackman.com. josh clerked for judge danny position of the sixth -- boggs of the sixth circuit, and he's a graduate of george mason university law school. as josh said, i'm still not over nfib, but here's josh blackman with at least some therapy. >> thank you. [applause] hi, everyone. we have -- you might not know this, there's an emergency constitution at the podium. you know, in case of emergency, break glass. just in case we need to read from it. it is such an honor for me to be here. it's hard to actually convey.

my time in the auditorium was exactly six years ago. this is actually ilya's first week on the job, and i got to know him shortly thereafter. he's proven a great friend and an advocate of liberty. he has given over 100 talks across the country. what's the number nowsome. >> i've lost count. >> over 200 talks across the country. [laughter] arguing that obamacare must stop. he's still arguing against it. >> well, nobody understands the decision. >> how do you understand it? so ilya's a great friend. i'm also joined by randy who's been a mentor and a guide to me. the work he has done on this case is very hard to characterize. he wasn't just the law professor who had these intellectual ideas, he was the godfather, he was the person who helped move this idea we say from off the wall to on the wall. he gave the idea energy, he dedicated so much of himself. and jeff rosen, we're honored. he's one of the key thinkers on the the court and the

constitution, and i might add insight to the chief justice proved to be exactly right on. in the battle of the jeffs, jeff too bin and jeff rosen -- >> thank you. that means a lot, josh, thanks. >> i get confused. we have one ilya, so actually we're safe. so this case is called unprecedented, and i will use this as a prop. the title actually comes from the law itself. why is this law so unprecedented? well, there are a number of firsts. one first, never before in the 20th century have congress tried to pass a law of such significance on a straight party-line vote. the president made the determination that he does not immediate any republican support to pass this law, just get the votes, we'll be done with it. we saw later that would not be the case, but this was a straight party-line vote. it was also unprecedented, never before had congress forced people to buy a commercial product. there had been some laws about people in the militia get rifles

and stuff like that, but this was a unique law that forced us to do something. and never before has a constitutional argument 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 and also ilya as well, they dedicate their life to spreading this argument. but it's remarkable to look back. and, actually, the title for the book came from, you know, an offhand quip i made. so randy took to using the word unprecedented very often. he said this law's unprecedented, unprecedented, unprecedented; and i made a joke saying we should have a drinking room that every time we say unprecedented, we take a shot. and it stuck -- >> which is ironic, because josh doesn't drink. >> i have water, that's about it. but randy said it, that was one of the moments that crystallized that this had salience. the idea that this law which forces people to do something triggered something in the

american populace because this case just wasn't about the pure constitution, not just this volume, it's also a about the people. the people in various social movements which is the tea party and other groups had an aversion to this law, and it wasn't just on policy grounds. we don't like this because we think it's going to destroy our economy, they said we don't like in this because it violates the constitution. we actually had people protesting not too far from here with signs saying we need to enforce the constitution. this law unintentionally engendered such a strong constitutional response, a backlash even that i don't think anyone anticipated. and this law also served, i think, as a litmus test on where the american people are with respect to the constitution. that's all the high that highfan ideas, but the story of this case is fascinating. and i will run through it abbreviated. the idea of the mandate's quite old. our good friends at heritage

proposed it in the late '80s. ed crane sent a letter to ed feulner saying, hey, this thing's unconstitutional. there was actually an event where stuart butler who invented the mandate doesn't come, and ed crane jokes i guess we couldn't mandate him to come. [laughter] so the history of this goes back quite a long way, and for many years republicans supported the idea of a mandate, we think this is a good free market alternative. but cato said, no, this is coercion. flash forward to 2009 after president obama was elected. he basically co-opted hillary clinton's health care plan, made it his own, and he said we will have obamacare, we will have a mandate. we are going to force people to buy health insurance. why? well, it's not fair that all these young and healthy people can wait to buy health care until they're sick, and they're not going to pay into the system. so they have obamacare. the problem was it was unconstitutional -- i'm sorry, it wasn't unconstitutional, it was unpopular. very unpopular.

so unpopular that not a single republican supported it, not one. so the president made a call and said, you know what? we'll go straight 60 votes. we will just pass it through on party lines, whatever happens later, we don't care. like syria. [laughter] you can sense a pattern, this was early on. something happened. senator ted kennedy died. he was the 60th vote, and who replaced him? a republican in massachusetts, imagine that. scott brown. scott brown replaced ted kennedy, and with that the democrats lost their filibuster-proof majority. okay, so what happens now? they don't have majority. they sent it to the house. nancy pelosi had to effectively pass the bill from the senate. but she wanted to make some changes. and not just some changes, a lot of changes. but if she were to make any changes as our separation of power worked, it would have to go back to the senate, but the democrats were afraid it would be shot down by filibuster.

so they had this reconciliation process where they changed the law, basically rewrote the law and it passed on a straight party line vote. in fact, about 34 republicans -- i'm sorry, 34 democrats voted against obamacare which was remarkable. it was bart stupak and others who got the law through. but the president was so happy. he signed the law, he found this gorgeous signing statement, and he was like, you know, this is the law of the land -- >> biden was the one with the signing statement. >> oh, he made the statement at the signing. actually, biden was grinning. >> the bfd was the joke i was making. >> that's right. anyone know the bfd line? the big f-ing deal? when the law was passed, the president was watching this on tv d probably on cnn -- and the president said we passed it, and biden says this is a big f-ing

deal. a lot of other stuff happened. within nine minutes 26 attorneys general fighting against obamacare. another suit followed in virginia, i think about 10 or 15 minutes later, they had some electronic filing problems led by ken cucinelli. "the wall street journal" reviewed our books at the same time. my book was in front. if we go back to fall of 2009, no one thought much of this argument, and i'm sure randy will talk about ap experience we had at the mayflower hotel. the idea was in the past the supreme court had only upheld

the regulation of classes of activities, growing weed with, growing marijuana, etc. this was something different. congress was not regulating a class of activities, they were regulating inactivity; that is, the decision to not have health insurance. and that had never been done before. so these state attorneys general raised these arguments, and remarkably, they worked. with judge hudson in virginia and judge vip sent in florida -- vincent in florida, the court actually gained victories for the challengers. they said never before had congress done this. it's unconstitutional. remarkable. we have federal judges saying that a law that regulates a multibillion dollar industry does not, does not involve commerce power. this was a stunning blow to the administration. the case went to the courts of appeals, and remarkably, there were splits. some judges ruled in favor of the government, and most importantly, the 11th circuit ruled in favor of the

challengers in a very lengthy opinion that was split. they said congress lacked this power. they can't do this. and then the case went to the supreme court. this is where it gets fun. everyone knew where it was headed, but no one knew how it would be resolved. and at the supreme court there were a lot of issues to consider, and i don't want to get too much into the bogging down, but to make this opinion make sense, i need to talk about the tax anti-injunction act. it's boring. the tax anti-injunction act says you can't sue -- i'm sorry, you can't challenge a tax until you pay it. the reason why this law exists is people would just stop paying taxes and file lawsuits. the proper procedure is if you don't like a tax, you pay it, then you can go to court, and you can sue on it. this has been around for over a hundred years. originally, the government argued that obama care was a tax -- obamacare was a tax, and no one could sue on it yet. that argument was rejected. why? because the actual statute of

the text says it's a penalty, not a tax. a penalty. why does it say that? because who wants to raise taxes? the president ran on a platform of not raising taxes. the platform was no new taxes unless you're really rich. so they framed it as a penalty. that was a very deliberate move. but the unfortunate consequence of passing laws with certain words that you can't pretend in court that it is a tax. so this argument was rejected out of hand. but as they went to the supreme court, there was a different can approach, and this is something i talk about in the book which many of you who followed the case might know much about is how the solicitor general decides to frame the issue of the issue of the tax. in the past they just said, listen, this is a tax. don't worry about the fact that it's not called a tax, just pretend it's a tax. but the solicitor general had a slightly different argument. he was citing a case called new york v. united states which was a federalism case which he studied for other principles, but there was one part of the

opinion which i'd never read before in justice o'connor's opinion where she said if congress passes a law that's framed as a penalty but it could be construed as a tax to save its constitutionality, it should be done. let me say that again. if a law can be viewed as a tax even though it's not, we will save it. and it was the solicitor general's decision to make this argument, among others, that ultimately persuaded the chief justice. the chief justice went along with the four dissenting votes who said, listen, congress can't mandate inactivity. they can't force you to buy a product, okay? but what the court will say is that if there is a law that could be construed as a tax, we will do so. and that is a horrible construction that's kept ilya awake for most nights over the past 14 months. you sleeping now? still having dreams? >> they're nightmares. [laughter] >> i talk about it in the book "dynamics," because when the supreme court's announcing a

decision, you don't know in advance, and if you're in the court, you don't have any media. so there was a distinct period inside the court where the people thought the law was going one way. the first 12 minutes or so it looked like this was going to be struck down. but then the chief justice said, well, but wait a minute. be we can save it, we will. and i think ilya was pumping your fist, and then you went very sad. [laughter] the law was saved. but there are some lingering implications of this law that i think we should discuss which might be of more interest from a policy perspective. one is the politics of this case. the president has made no secret that he likes to go after the court. if you'll recall the 2010 state of the union which was after citizens united, he made statements critical of the court. he said that they've reversed precedent, opened the floodgates of foreign spending. he said this with the justices sitting 5 feet away, and you remember justice alito was shaking his head like, no, not

true. the president has repeated this behavior in, i'm sorry, two days after the oral argument's finish, so basically the following monday, he made off-the-hand comments where he basically said to the comment that you should, quote, exercise your jurisprudence be carefully. he made a very clear message to the court of what he expected them to do. he actually cited the lockerner decision. david bernstein's right here. but he actually cited the lockner opinion, and he made it clear he was not going to be happy if the be court struck this law down, and that might be a good or bad thing. but if you recognize the climate in which this case was decided, this was in a presidential election year, the case was decided before the primary -- i'm sorry, before the general election, and the court was rightfully concerned what would happen to it. now, jeff rosen's going to talk more about this later, but i think there was a definite concern on the court in the

chief justice in particular that for the court to strike this law down in an election year, it would open the door for the president to attack the court. and you might say, oh, what's the dig peel? the president talks about everything. well, it's a significant deal when we're talking about the court's credibility. if he went so hard after the court for the citizens united opinion which, might i add, he's benefited from immensely, by the way? the president's benefited immensely from citizens united, we can imagine what he would have said had they struck down his signature legislation. and this had to have weighed on the chief justice. i'm not giving in to the rumors of did he or did he not switch the opinion. anyway, someone else can talk about that. we do know he was trying to have an influence in the court. i hi this sets a very -- i think this sets a very bad precedent. the chief justice, ilya said he sold out. he did. he rewrote a law, he upheld a law that was never passed. but i will give him some credit

because he has to think perspectively. he has a 30-year term ahead of him if he stays healthy. the president has three years and counting? i'm sure there's a countdown somewhere in this building. [laughter] a fairly short time left in this office. we have a lot of other cases coming up. just this past term voting rights was struck down. affirmative action's coming up, i'm sorry, that might be a better test case. so there are a lot of things the court has to do. randy, i'm sure, will talk about this, but what is the impact of nfib very sebelius on the constitution? well, doctrineally, i don't know how big it is x i'll caveat that. this law definitely said congress can't regulate inactivity. now, if congress had some sort of other purchase mandate, this would probably be there. the medicaid spending's probably more sail credibility. but i think what court recognizes is -- the rehnquist court is not over. the court said we are willing to police the bounds where the

congress can and can't do. we will watch that line, and we are make sure it's enforced. and i think that shifted our constitutional gestalt, the way we look at the constitution, the way we look at federalism, the way we look at the enumerated rights, this notion that the structural contentions of our constitution as bulwarks of freedom was evident. and i think we've seen that in the voting rights case, the idea that the sovereignty of the states actually does matter. going forward, we will see this rhetoric picked up. in the bond case also, this is a case coming up this term about the ability of congress to amend their laws based on foreign treaties and expand their powers. i think we're going to see a nice narrow policing of the federal government's power from the roberts court. now, even though -- i'm sorry, even though obamacare survived and many of the lingering attacks, the court may or may not strike down more, i think we learned a lot about the american people also. for a long time, people assumed

the constitution just didn't matter. nancy pelosi famously said when someone asked her is this law constitutional, what'd she say, ilya? what was her line? >> you serious? >> to you kidding me -- are you kidding me? i'm just having fun now. >> that's so romantic. [laughter] >> it was built on the framers and love. it was quite beautiful. [laughter] >> it's on youtube. >> yes. cato records everything. so the issue is what the american people feel about this. and i think the obamacare law inadvertently awakened a sleeping giant among the american populace. people have this natural yearning for the constitution which we saw. 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 of the tea party now, i would say it's dormant, slumbering perhaps, this can be with reawakened at the right

moment. we know it's lurking within the american people. and this might be the most important lesson going forward that we here at the cato institute and elsewhere should keep fighting and keep talking about the constitution, keep talking about liberty and keep talking about the federalism structure we have and make sure that discussion's ongoing. because when something big comes along like obamacare, we have the foundation, we have the framework, we have the army ready to roll. no accident that randy and others were able to mobilize very quickly, because we have these institutions here for when these things happen. all of you here are members of that movement in one fashion or another. at least you're here. perhaps not the people watching on tv, but everyone here recognizes this, and i think going forward we should keep this in mind. ilya, am i good on time? all right. i will cede the rest of my time to my distinguished copanellists, and i thank you so much for coming to hear about this book, and i will be signing

afterwards. i hope to sign one for every single one of you. thank you so much. [applause] >> thank you, josh. you can tell he's kind of an unconventional law professor. i'm sure his students love him. next we'll have the ideal commentator for josh's book, none other than randy barnett whom the new york times rightly called the intellectual godfather of the obamacare litigation. what's more, he was counsel to the national federation of independent business in the case. more prosaically, he's the car mac waterhouse professor of theory at the center for the constitution as well as senior fellow here at cato. in 2004 he argued the supreme court's medical marijuana case which would play a large role in nfib v. sebelius. he's written more than a hundred academic articles and nine books including books on contract and constitutional law and the magisterial restoring the lost constitution: the presumption of hint.

randy's a regular commentator in print and broadcast media including, and i didn't know this, the ricky lake show. he's also a movie star, he portrayed an assistant prosecutor in the independent film inalienable:, a sci-fi morality tale. randy let me accompany him to all the lower court arguments in this case. [laughter] richmond, cincinnati, atlanta and d.c., we were joking we'd have t-shirts made up of our tour, and we're the only ones in the country who hit all of them. so it's an honor among that to have randy barnett be here. [applause] >> well, thank you very much, ilya, for that introduction, and congratulations, josh. >> thank you. >> mazel tov on this wonderful accomplishment of having a book. i remember when josh was -- did i meet you in your second year or third year? >> second year. >> second year of law school. it's kind of interesting. i met david bernstein when he was a law student as well, but it's interesting to see when

these law students accomplish big things, and this is a really, truly big thing that you've accomplished with this riveting book. you buy this book if you want to hear a great story, because that's what it is, it's a terrific story about what happened. it's the behind-the-scenes story written by somebody who not only interviewed all the principals who were involved including people from the government and got their perspective that had never been shared publicly before, but josh was actually there at the beginning, at the very moment in which the opposition to obamacare, the legal challenge and the political challenge, really got started which was at the mayflower hotel here in town in november of 2009, in the moment that he has dubbed the may flower compact -- [laughter] in which outside in the corridors of federalist society national lawyers' convention, i joined a group of people who were just chitchatting about something or another, and todd -- [inaudible] of the heritage foundation asked me if i wanted to be involved in opposing the senate bill which had not yet been actually

produced by a committee yet. we didn't even know what the text of it was yet. and after, you know, expressing some initial skepticism, i agreed that i would do so but only if he found somebody who could do a first draft of the paper. and it was at that moment that he said i think i can do that, and eventually he found nathaniel stewart who was this, who did a tremendous amount of work in identifying the legal theory that we eventually used to oppose the law. and josh was in that group of people at that moment, at the mayflower hotel and witnessed that event. little did we know what would grow out of that moment. little does anybody know what grows out of individual moments that you might have and you might share in the future. so i urge you to buy this book. it's going to be -- a great read. it is a story. he's able to very skillfully weave together both the narrative as well as the law. and i have to tell you, that's a pretty big challenge to be able to do that, and he meets that

challenge quite well. in my talk today, in my remarks today, want to make a few points, some of which echo ilya and josh about what we accomplished in the case and also why we accomplished, how we accomplished it. so why -- what we accomplished is going to be somewhat of a repeat, how and why might be something you haven't necessarily heard before. first of all, as to what we accomplished in the case, because the rest of it, how, only is premised on the idea that we actually did accomplish something. so, first, i have to make the claim that a we did accomplish something in the case, and i tried to summarize this in my forward to the book. i did write the forward, i was privileged to, and let me read to you at least the bullet points of what i think we accomplished that comes from the forward. i explain it a little more thoroughly in the forward itself. first of all, we prevailed in establishing that the federal government lacks the power to compel people to engage in economic activity. that's the first thing we

established with five votes on the supreme court. secondly, we were vindicated in our claim 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 the do an end run around the limits of its commerce power. fourthly, that congress cannot avoid the limits that the constitution places on its power to govern simply by calling something a tax after a law is enacted. fiftily, to be constitutional we achieved the ruling that any such tax must be low enough to be noncoerce i and preserve the choice to either conform or pay the fine and sixthly, we succeeded in showing that congress' power to compel states to accept federal money can be coercive and also held unconstitutional by the supreme court of the united states. for those of you who are still wondering what we might have accomplished, whether those six accomplishments really are much of anything, i ask you to

imagine that the controlled substances act which makes illegal all the recreational drugs that have a tremendous amount of appeal to a whole lot of consumers in this country, imagining that the controlled substances act was enforced not as a commerce power regulation, which it is, but as a, as a spending power or as a mandate or, i'm sorry, as a tax under the nfib ruling. supposing that was the way that the drug laws in this country were enforced. if that were true, if that was the basis for enforcing drug laws in this country, then ever -- we would have to open up the doors of the federal penitentiaries and release tens of thousands of prisoners who are now there because they would not be able to be incarcerated for failing to -- for using or even selling these recreational controlled substances. all they would have to do in order to conform their conduct to the law would be to pay a small tax on the activity of buying or selling these controls

substances. that would be a libertarian sea change in the direction of the country if that were the reason, if that were the means by which our drug laws were enforced. it would not be a perfectly libertarian outcome because there would still be a tax on this activity and, therefore, that would up the capability of restricting it. but it would certainly be a huge step in a libertarian direction. that is what we accomplished in this case. that is, that is all the government was allowed to do at the end of the day. in order to uphold this law. and in addition to that, as josh makes clear in the book we also managed to hobble obamacare a bit in two ways. first of all, 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 be, but it was of also argued that it was unconstitutional which many people in the united states do care about. so it became an illegitimate law

and was held in 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'm not happy about the way that campaign turned out on the issue of the affordable care act itself, but it was made possible that the campaign even involved the affordable care act was made possible by our lawsuit. and ever since then the law has been consistently unpopular and more susceptible to being repealed or revised significantly than it would other side have been had it not been for our lawsuit. and i would also say that by limiting the penalty that's in, that enforces the individual insurance mandate to a small nonpunitive tax, we render the operation of the bill sufficiently problematic that it may actually be necessary for congress to revisit this law in the future. and when that happens, will will be more opportunities for positive change than there otherwise would be had we not prevailed in this case. and, obviously, on the spending power we gave states the ammunition they needed, the power they needed to resist the expansion of coverage of

individuals under the medicaid program that they otherwise would have lacked. and that was something else we accomplished, that is that state governors across the country are using in order to resist the further implementation of this law. so that is what i think we accomplished. now, how did we accomplish it? obviously; i think individuals matter. i think individual people matter. so it matters who it was that was in the position to oppose this law. this wasn't done by nameless, faceless people, it was done by real people, and they deserve a thanks. i've already mentioned the crucial role that todd at the heritage foundation and the heritage foundation itself played in putting toward the original -- forward the original objection to the affordable care act even before the bill emerged from are committee. josh tells the story in the book about what happened with that report that nathaniel stewart and i and todd wrote and how it was used to shape the republicans' argument in the senate so that the republicans who had not -- the republicans in the senate who were not

previously planning on making a constitutional point of order in the senate because the staff couldn't think of a constitutional objection to make to the bill, once they were exposed to this argument, they then did lodge a constitutional point of order, and there was a debate on the floor of congress the day before the bill passed on christmas eve. that debate was broadcast on c-span, and it brought to the country the issue of the constitutional problems with this bill in a way that was highly salient and otherwise would never have come out had it not been for the heritage foundation. that would not have happened. david rivkin, the first lawyer who represented the states and the nfib in their initial lawsuit was one of the only lawyers, perhaps the only major lawyer in town n this town, in washington who was prepared to take on what seemed at that time to be a sure loser, and yet he stood up for principle having already called out the health care reform as unconstitutional in a series of op-eds in the "wall street journal," and is to be commended for being the first in the fight and to carry the fight to the government in this lawsuit. then, obviously, the legal team

of the jones-day law firm who i worked with representing the nfib, did enormous work on their briefs. their brief had a particular influence on jus discuss alito. paul clement who came into the case and made some brilliant oral arguments. not only was his brief brilliant and i think it was a brief that would have a appealed largely to justice kennedy, but also his -- his performance in oral argument both in the court of appeals and in the supreme court was a thing to behold. it was a sight to behold. i was privileged to witness that. and also i really would be negligence if i didn't mention the role that ilya shapiro and trevor burris played in writing numerous amicus briefs. it's true that ilya and i were the only people in every court of appeals hearing, although i was in pensacola for the district court case. so i got one case -- i mean -- i got one hearing up on him. and, but he was there, and we

wrote these briefs. >> i was too busy debating the case in some other law school at the time. >> and he debated in all these law schools. and what trevor and ilya were able to do with the amicus briefs that i co-authored with them, the three of us worked together, is make a pure, constitutional argument of the kind that not all the lawyers for all the cases being litigated around the country were actually able to make at that point. so i do think that our amicus briefs did galvanize the best constitutional arguments against the case, and they were eventually absorbed by the parties when the case eventually went to the supreme court. so these were the people. these are the people who must be thanked for the effort that, for the effort that was successfully maintained. however, although the existence of these individuals was necessary to the success that we enjoyed, by no means was it sufficient to the success that we enjoyed. and i want to talk about what else was necessary. for the success that we enjoyed. beyond individual people who happened to be at the right place at the right time and

willing to devote themselves to this particular cause. and at this point i want to talk about something that law professors call popular constitutionalism. it's something josh has already alluded to, and that is the idea that it is the people themselves that shape in some sense how the supreme court will interpret the constitution of the united states. the people themselves, i don't believe, changed the meaning of this document. and by the way, i held this up in my constitutional law class this week. i didn't have a copy with me, and somebody provided me with a copy. i wanted a prop. oh, it's the cato constitution. they insert the word "liberty" in the constitution all over the place. [laughter] it's a different version -- no, no, it's the same institution. [laughter] so i don't believe that the people changed the meaning of this text itself, but there's no question whatsoever that the people have a big unnot to answer 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, it does evolve, it is living, and it is influenced.

by the public's perception of what jack baldwin has basically said is off the wall and is on the wall. what arguments are beyond the pale and what arguments are to be respected, are influenced. the question of whether you make an argument that's considered a crazy argument or a serious argument depends in part on the validity of that argument, but only in part. it also depends on how that argument is perceived by the general public. and that's why the involvement of the general public in this case was crucially important to us getting as far as we did as quickly as we did. we can never count on courts themselves to save the constitution. or to save limited government for us. that isn't going to happen. it hasn't happened. the courts have let us down repeatedly, they let us down again 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 them doing. they are highly ma yourtarian

and not a countermajoritarian institution. only slightly. generally speaking, they try to stay within the mainstream of what the people are thinking, and that's the reason why i think it's so important what the american people are thinking. so why is it that 99% of american law professors who considered the possibility of a legal challenge scoffingly dismissed the merits of our challenge as frivolous and in one case, one particular law professor said that anybody, any lawyer who signed a complaint or a 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 miss the boat on this case? well, i think there's a lot of reasons for this. i'm not going to be able to go through all of them, but i think one of the most important reasons is that law professors tend to come from a similar culture, and they tend to assume

that history is on the side of the politics that they all share. there's just a general gut assumption that they are progressive and that history is moving in a progressive way and that everything that they've accomplished can never be, in their words, undone. nothing -- you can never go back. everything that you want is negotiable, but everything they've got can never be given up. [laughter] that's the reason why you can't vote no on one of their progressive policies often enough. they will make you vote no again and again and again and again and again, and then the moment they get a yes vote, at that point that issue can never be returned to again. that's the end of it. it's done, it's settled. that's in the bank, let's move on to the next issue now. and that, i believe, is the culture from which most law professors come. and according to that culture, an argument of the kind that we were making in this case is one that was completely alien to them because they believed it violated this trend of history that was on their side and,

therefore, they were quite confident in their view that judges who tend to follow these political trends and the supreme court in particular who tend to follow these particular trends would never consider these challenges seriously because as a cultural matter, they were simply not -- they were simply off the wall. but i believe what our case shows, what this case shows, the nfib case shows is that 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, in fact, it had to be. and that's the reason why we got as far as we got. so let me just take -- i know -- ilya's just signaled me i was out of time or almost out of time. actually out of time. let me just make one further point about how it was we were able to do this in the court of public opinion because i think it might be helpful to thinking about how to do it in the future. number one is i think you have to make a legal argument that

appeals to the american people generally, to ordinary folks generally not just lawyers in a way that they can understand and appreciate. you can call these things sound bites and in some respects they are sound bites, but they are sound bites that have to have resonance, and they also have to be consistent with a sound and coherent, genuine legal argument. they cannot actually destroy or undercut the reality of your argument. the first and most important one of these concepts is the title of this book, unprecedented. this was a term that came from the congressional research service who wrote a position paper, a study paper prior to the bill being introduced in the senate that argued an individual insurance mandate of this kind would be unprecedented, and what we did in our heritage foundation paper is led with the idea that this was unprecedented, and the idea that it was unprecedented became the first of the major sound bites. the second one was that we called it the individual insurance mandate. it was a mandate. the law refers to the individual

responsibility requirement. substantively, they're the same, but individual mandate is something that could be more easily understood than individual responsibility requirement. the reason why the word unprecedented did so much work for us is because it means that if something really is relevantly unpress tent caned, then it means that all the previous supreme court doctrine that says one thing or another about it are not exactly on point and, therefore, don't directly district tate the -- dictate the outcome of the case. if, in fact, you can establish that it is unprecedented, and many people took issue with our claim that it was, but ultimately, we prevailed such that every court who issued an opinion about this case admitted it was an unprecedented case of first impression. all right. so the last point i'm 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 as smart as lawyers can be, are never going to be enough to restore the lost constitution, and by the lost constitution, i mean the constitution with all of its parking