information that they could gi give. it's about 9 million people this week have gone on-line to find out about this obamacare. mr. president, this has been very, very successful. mr. president, i ask unanimous consent that at a time to be determined by me with the concurrence of senator mcconnell, the senate proceed to executive session to consider calendar numbers 206, 207, that there be 30 minutes for debate equally divided in the usual form, that upon the use or yielding back of that time, the senate proceed to vote with no intervening action or debate on the nominations in the order listed. the motion to reconsider be considered made and laid on the table with no intervening action or debate and no further motion be in order, that any related statements be printed in the record, and that president obama be immediately notified of the senate's action and the senate then resume legislative session. the presiding officer: without objection. mr. reid: there are two bills at the desk due for a second reading. the presiding officer: the clerk will readed titles. the clerk: an act making continuing appropriations for a

government shutdown and so forth and for other purposes. house joint resolution 72, making continuing appropriations for veterans benefits for fiscal year 2014 rand for other purposes. mr. reid: in order to place these bills on the calendar under rule 14, i would like to do that, but i object to any further proceedings to both of these measures. the presiding officer: the objection having been heard, the bills will be placed on the calendar. mr. reid: mr. president, i understand that there are three more measures on the the desk due for their first reading. the presiding officer: the clerk will receipt the titles for the first time. the clerk: h.r. 3223, an act to provide four the compensation of furloughed federal employees. house joint resolution 75, making continuing resolutions -- preelingses for the special supplemental nutrition program for women, infants, and children for fiscal year 2014 and for other purposes. house joint resolution 85,

making continuing appropriations for the fema for fiscal year 2014 and for other purposes. mr. reid: i now ask for a second reading but to be my own request to all three of these measures. the presiding officer: objection having been heard en bloc, the bills will receive their second reading on the next legislative legislative day. mr. reid: i ask unanimous consent that when the senate completes its business it adjourn until monday, october 7. the journal of proceedings be approved to date, fowling leader remarks the senate will be in a period of morning business until 5:00 p.m. with senators permitted to peek for ten minutes each. 59:00 p.m., the senate proceed to executive session to consider calendar numbers 204 and 205.

the presiding officer: without objection. mr. reid: if there is no further business to come before the senate, i ask that it ajump under the previous order. the presiding officer: the the presiding officer: the >> when with the senate session for the day complete, we return now to booktv programmings. >> garrett epps reads lu the u.s. constitution -- through the u.s. constitution and details what he considers the

ambiguities and incongruities that mark the text. this is about two hours. >> please join me in welcoming garrett epps to the national around -- archives. [applause] >> thank you for that generous introduction, and thank you to the archives for inviting me here to be so near the actual constitution. and thanks to everybody for taking their lunch hour to come out and listen to me talk. as doug noted, this is the 226th anniversary of the u.s. constitution, and i am reminded of an occasion on the 200th anniversary when "the nation" magazine asked a novelist to read the constitution from start

to finish and write up his reactions. the writer didn't enjoy the assignment. it is 5,000 words long but reads like 50,000, he said. it lacks high rhetoric and shows not a trace of wit. it uses none of the tropes of literature to create empathetic states in the mind of the reader. now, those of you who have read his work, know that he is one of our finest writers and understands american history very well, but on occasion i think -- on this occasion i think he missed the story. for one thing, just the pendant in me has to say he missed a third of the constitution which is 7500 words long. apparently, he quit when he got to the end of the original part. under the common american misperception that the amendments don't count. even reading the 1787 document,

he, i think, missed some truly high rhetoric, some literary tropes and maybe not wit, but a certain amount of irony. like him, americans love the constitution. we know it is important, and we enjoy arguing about it. but for a lot of us, actually, reading it is boring. we know it's important, but we aren't sure that the importance really lies in what's written down on the page. there's a meaning somehow other than that. and that is an american intellectual trait, because our country -- which has given many wonderful gifts to the world -- has never produced a painting of the caliber of leonardo's "last

supper." we have, however, produced the da vinci code. [laughter] and the meaning there is that for americans if the "last supper" is simply an immortal, deeply human work of art depicting a central moment of the story of jesus, boring. but, but if it has a secret message and if that message is about a relatively obscure dynasty of frankish kings that vanished from the earth 1200 years ago, now you're talking. now we have something really interesting. never mind what the last supper is. a lot of americans are more interested in what it means. similarly, the meaning of the constitution often seems to trump the constitution itself. and that meaning we express in

terms such as what the framers intended. that original intent is our national da vinci code. or to put it another way, i'm drawing on the 16 years i lived in the pacific northwest, origin intent is to the constitution what sasquatch is to the cascade mountains; igerly believed in -- eagerly believed in, obsessively sought, relatively seldom actually seen. i teach constitutional law for a living, and a lot of people ask me, they come to me with concerns about one clause or another, and they ask what did the framers intend. and they don't can like my answer -- they don't like my answer because my answer is they intended to write the words in that clause and have us interpret them. that just doesn't seem right. it doesn't sit well. to a lot of americans, the words on the parchment seem less

important than what the framers were thinking when they wrote hem. if we -- them. if we knew those thoughts, then our present day constitutional difficulties would vanish. the best-selling novelist william martin wrote a dan brown-style thriller, in fact, entitled "the last -- the lost constitution." "the lost constitution" is about a draft of the constitution in philadelphia that in a break, you know, washington says take five, and the delegates are up and stretching, and they start saying, hey, let's make some notes on this constitution. so the publisher says that this draft is annotated by the founding fathers, the draft's marginal notes spell out in shocking detail the founders' unequivocal intentions, the unmistakeable meaning of the bill of rights, peddled and purloined, trafficked and concealed for over two centuries. this lost constitution could

forever change americans' history and its future. so the idea is that the words on the, that are uptears in the -- upstairs in the parchment, those aren't clear. but if we could get hold of some other words that those same people wrote, that would make everything clear; freedom of religion, state sovereignty, the right to bear arms. these other words are so powerful in the lost constitution that people are willing to kill for them. and if we could just get our hands on these words, we would finally be able to read the words we do have. original intent, original meaning, original understanding, whatever you call this idea, it's worth asking why it's so important in our national dialogue. there is a history here, it is particularly american.

we, the people, for the past 200 or 300 years have had a more intense relationship with the christian bible than probably any other people in history. that biblical tradition is where the idea of original intent as something that can be discerned and known originated itself. christians have been reading the bible for nearly 2,000 years, but there have been many ways of reading it. throughout christian history some have read it as annal gory of divine love -- annal gory of divine love. some said it was a set of parables, that they were to teach us how to live by reading these stories. others said it was what's called an an goingy which meant a key,

hidden key to events in another world that could be understood only by those who had gained mystical access to god through meldation or divine -- meditation or divine grace. the idea that the bible has a single, huttal, intended meaning and by which i mean a meaning available to, discernible by any literate believer without the need for priestly interpretation or mystical revelation, that, in christian terms, is a relatively new idea. it gained primacy only during the protestant reformation. jaroslav pelican, the great religious historian who taught at yale for many years, wrote in 2004 that liewpter and the other -- liewpter and the other reformers believe that, quote, scripture had to be not interpreted, but delivered from interpretation to speak for itself. pelican continued that what

mattered to luther was, quote, the original intent and census literalis, meaning literal meaning of the words. and pelican saw, as i think perhaps you may, in luther's bibly schism a direct are forebearer of the way americans interpret the constitution. the general protestant notion of original intent became even stronger in this country over the past century. it's almost exactly 100 years ago between 1910 and 1915 a group of american evangelical theologians and scholars published a set of theological essays called "the fundamentals of christian belief." these very influential essays gave rise to the christian movement we call fundamentalism in honor of this series of pamphlets. in large part, fundamentalism

was a result against a certain style of bible reading against the 19th century scholarly movement we call the higher criticism. higher critics were scholars of a kind we would all, i think, recognize today. they applied recognized secular techniques of analysis to the texts of the bible. they viewed some books of the bible as blends of other books, including some that came from outside the hebrew tradition. some of the parts of genesis, they thought, actually just began by describing other near-eastern deities. they refused, they did not take stories like the deliverance of egypt or the age of the earth or the raising of lazarus. they didn't regard these as historical fact. they interrogated the text like historians, like linguists looking for contrasting and confirming evidence, and they were very skeptical about the

idea of miracles such as making the sun stand still. fundamentalists reacted very violently to the higher criticism. they felt that this method of reading the bible threatened the entire enterprise of the christian religion. they wrote that the bible is not to be studied like ordinary historical writings, it is the word of god. and that means that all parts of it are inspired, created directly by the breath of god into the human soul. and that inspiration is not general, it's not a set of ideas, it's verbal. god has fixed for all time not just the ideas in the bible, but the words themselves. and these words are inerrant and infallible. there are no mistakes in the bible, nothing it says is false. the bible is true, we know it is true because it says it is true. we know it is true because the

prophesies of the old testament have been fulfilled in the new. and to read the bible without accepting beforehand its divine nature is not to read it at all. every word has a meaning. that meaning is fixed. that meaning is not affected by historical context. that meaning is never subject to re-examination in light of moral and social change. and those meanings fit together into one divine hole. divine whole. how does that sensibility play out in contemporary christian thought? well, to begin with, when americans talk about the constitution, they often mean something more than the document itself. there is a kind of biblical canon of constitutional materials. we have the book of genesis which is the declaration of independence. we have the law, and that's the constitution itself.

but we also have the prophets or the founding fathers, a wonderful mythological term that the his term that was recently pointed out that term was coined in 1920 by the profound be constitutional thinker warren g. harding. [laughter] the words of the prophets are collected in madison's notes on the philadelphia debates. madison never thought of these notes as having any sort of official status. they're now a key part of the american bible. we have our ten commandments, as we call them, the bill of rights. that sacred number ten, by the way, is a coincidence. madison originally proposed 13 amendments. two of them got lost, and one took 200 some years to be, to be ratified. the 13 articles of the bill of rights sounds different, and i always recall the scene in mel brooks' "history of the world

part i" where moses comes down from sinai with three tablets and says the lord has given us these 11, one falls over and breaks, 10, 10 commandments. [laughter] so there's a certain accidental qualitity to the nature of the bill of rights. the christian bible has the epistles of st. paul, and americans have our own epistles, the federalists or what we like to call the federalist papers. and their status in the canon is also accidental. the late pauline maier wrote a wonderful book called "ratification: the people debate the constitution 1787-88," the first book-length account of ratification. and she explains that the federalists circulated almost nowhere except new york. the essays were written to

procuratification by the new york -- procuratification by the new york legislature. it was by no means a passionate analysis. it is written by hamilton, madison and jay. madison had attended every day of the philadelphia convention, hamilton got there when he could, he was a busy guy. jay was not a delegate at all. maier says the authors of the federalists had no time to show each other their essays beforehanding them to the printer, in fact, sometimes they couldn't even reread their own work before it was put into type. not only that, there's every reason to believe that the authors didn't themselves believe some of the things that they wrote. jefferson wrote madison a letter consoling him for having to write the federalists, and he said with regard to the federalists in some parts it's discoverable that the author means only to say what may be best said in defense of opinions

in which he does not concur. but by our time, the federalist has become divine, inerrant and timeless. in 2010 the scholar anthony peacock in the introduction of a pamphlet entitled "how to read the federalist papers," wrote, quote: use of a single pseudonym suggests that the federalists possessed a uniformity of intelligent. the federalist was to be read as the work of one mind, not three, and was coherent throughout. and he adds, the federalist is intended to be true for all times and all places. martin luther couldn't have described the bible better. so when even scholars are under the sway of the this semi-religious mystique, how can we expect citizens to be immune? the literal view, i think, may keep us from seeing everything that is in the constitution because the constitution is not

coherent. to the, in fact, confusing and ambiguous in places. and it may also keep us from noticing what is not there. because the constitution is incomplete. there's a second problem with original intent as a source of law if by that we mean the thoughts of the framers. it is this: the constitutional convention doesn't sit. its members are dead. so are the members of the ratifying conventionings that approved it -- conventions that approved it, and so, in fact, are all but a few of those who took part many writing and ratifying the 27 amendments that have been added to it since it was originally drafted. we can't revise what they wrote without great effort. why should their long ago intelligent or understanding -- intent or understanding bind us, the living, today? well, if their intent was to write the words they wrote, fair enough.

our job is to interpret them. but if their intent was that we should not apply the constitution for ourselves, that we should stand on tiptoe in the dark hoping to hear their voice, then their intent was undemocratic, immoral and just plain silly. the final advantage -- disadvantage of the quest for original intent or original meaning or original public understanding is that it is a highly technical search involving etymology of words, the evolution of language, the intellectual history of anglo american law and society. if we accept that as determining the meaning of the constitution, then the people don't govern themselves anymore, we are handed over to those like historians who have special knowledge of these things. or even worse, judges who usually have virtually no knowledge of these things but

believe they do and remember their eighth grade civics class quite vividly. ordinary citizens, however, have no standing to engage in constitutional interpretation. if the constitution is binding not because of its pedigree but because we, the living pledge our allegiance to it, maybe what should matter is what the words say to us, the living, today. our intentions, our understanding matter far more than those of the dead. now, i developed this view over a number of years concentrating on the text of the constitution itself. as a legal scholar, you start out by reading marbury v. madison, that's very exciting. you read a bunch of cases, then you read articles about the cases, then you read articles about the theory of law in the articles about the cases. but sometimes you skip the text altogether. but what happened to me was this.

you know, like every professor walter -- [inaudible] for those who recognize the reference, i dream of writing a best-selling book, right? retiring to the bahamas, drinking rum through a straw, forgetting the whole thing. and not long ago i spent a year and a half trying to do this. i was writing proposals for real blockbuster books. i thought some of them were pretty wood good. the founding fathers' quick weight loss guide, i thought, had money in it. but none of them ever got past the agent's desk, much less to the editor's. and then one day i had a thought, and it was this, you know? i remembered my days as a starving novelist and freelancer, and i thought, dude, you have every writer's dream. you have an indoor, reasonably well-paid job that you can't be fired from where it's okay to write on office time. and you even get to take the bic pens and take them home.

[laughter] i had a moment like the one experienced by william faulkner years ago, he wrote later. one day, one day i seemed to shut the door between me and all publishers' addresses and book lists. i said to myself, now i can write. so i decided to write as if what i wrote would never be published anywhere. for nearly two years, i read the constitution's text every day and wrote for my own satisfaction alone an analysis of what it really says article by article, clause by clause, amendment by amendment, section by section. it was the most satisfying work i've done since i got into law teaching more than 20 years ago. and that it ended up being published by oxford as american epic still astonishes me because really, no one should get paid for having that much fun.

i tried to read the bible all the ways i knew how rather than, you know, i was freed from the need of trying to tease out the answers to modern legal problems. i wasn't doing that. i was just reading the constitution. it didn't matter. who cared what i thought? and i used all the ways of reading that i knew. bible reading was a very strong part of my childhood. i grew up in the south and went to christian school. i'm trained as lawyer. i have learned specific techniques for interpreting statutes and wills and contracts. i also was a folklore major many years ago in college, studied epic poems like the odyssey and the iliad. and finally, i read the constitution as lyric poetry. whether anyone else ever saw it, i did. one of my first career

aspirations was to be a poet. i've actually published a couple of poems over the years, and i began to find my poetic interest reflected in the text. i learned something from each way of reading. some parts of the constitution are homerric, some are biblical, some are as dry as the statue of frauds, and others are as elusive as a poem by emily dickenson; delicate, suggestive, offering empty spaces that we are invited to fill with meaning. just as one example, consider a poem written by emily dickenson in 1865. now, today people think of emily dickenson as a kind of private poet of the kitchen and the garden and the drawing room, but the truth is she was like all great poets, a very powerful instrument for detecting what was happening around her.

and expressing it in ways different from those that others do. 1865 was the turning point in what james mcpherson and others call the second american revolution. the surrender at ap mat tax, the assassination of lincoln, the final approval of the 13th amendment, the beginning of the reconstruction congress. and dickenson detected what was going on. consider one poem -- 1865, by the way, was her most productive year as a poet. whether there's any synchronicity in that or not, i don't know, but it is a moment when all of american society was changing, becoming something radically different, and she felt a burst of energy during that year. consider one poem she wrote that begins like this: revolution is the pod systems rattle from.

when the winds of will are stirred, excellent is bloom. in this stanza she uses natural image to illuminate a complicated social con isn't. concept. she takes social revolution and juxtaposes it with the image of a seed pod in winter. we've all seen dried-up, waiting for spring rains and winds to break it open can and spread new seeds to bloom in the following summer. those 17 words do a lot of work. now consider a text that holds a prominent place in the american imagination, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

this is ten words longer, 27 words. like the dickenson poem, it doesn't explain; it suggests by using images. it evokes the image of a militia , then wedge that image to two important but ambiguous concepts. on one hand, a free state; on the other, the people and their rights. what is the free state? is it the state of maryland or the commonwealth of virginia, which by maintaining a militia can resist federal tyranny, or is it a state in the international law sense, is it the united states which must have a strong militia as part of its national defense? who are the people? are they the villagers gathered on the town green to use town-issued muskets during training day? or are they solitary frontiersman toting home forged

rifles for protection against bears and cougars? even if you put a gun to my head, i'm not stupid enough to tell you that i know what the second amendment means. i do know that as i read it, i respond on many levels. as a bible reader, i respond to the negative commandment language, the thou shalt not which suggests to me that i'm in the presence of something sacred. ..

and each one has a voice because, and only because, he's able to bear arms during the constant warfare of bronze age greece. finally as a reader of poetry, i hear some fairly complicated verbal relationships. security is as important as rights, for example. regulation is as important as arms. even the words themselves contain their own contradiction. take regulated: now, in our time that seems to have a pretty established meaning. it means governed, run, put in order. we are in washington, we're all familiar are regulators. saving the presence of any who are here, we frequently flee them because we regard them as

powerful being who are to be prescribe rules. it meant that in 19 of 1790 but it meant something else. it echoed with a long forgotten meaning of the word regulator. which meant, to those people, a member of a self-formed vigilant gang that was fighting the government. in the constitution itself, the militia is tightly hemmed -- held under federal court. in the amendment right guaranteeing the right to bear arms. the words may echo with revolt against the established authority. what does the second amendment really say? you've heard the words what does mean is a lifetime's quest. if the second amendment reads like a lyric poem.

other parts of the constitution read like epic. article i, which creates and empowers congress is the heart of the constitution. section viii, the cat log of congress' powers is the article i. article i section viii remiebdz me of the most powerful poem in western literature. book 18 of homer's ill -- in book 18 the god smelt a new shield that the greek hero, akil lees, will carry in to beat over the trojan hero hector. homer describes the shield as containing, quote, a world of gorgeous immortal work. it depicts the entire civilization of bronze age greece. in the image of two cities.

one, the city of peace contains weddings, wedding feasts, athletic competitions, law courts, farmers tilling broad, rich plow lang, young girls crowned with a bloom of fresh garlands. the other city, the city of war, is filled with combat, devastation, and debt. a divided army glistening in battle gear and strug -- struggle where strife and havoc plunge in the fight and violent death. as that shining shield reflected the greek's idea of their world, section viii reflects the framers foreseeing ideal commonwealth. like akil lee's shield we might call it the city of trade and the city of war. but first half article section

viii is taken up with matters of trade. congress has the pour to -- power to borrow money, regulate commerce, grant monopoly to authors and investors, establish rules for bankruptcy, coin and regulate money. the second half of section viii is governed by war. congress has the power to declare war, commission private ears, capture and punish pirates. establish and maintain and army and navy and call forth and regulate the militia even employing it, if need be, against the states themselves. in these two cities together, congress is given a wide tapestry of powers. section viii suggests a legislative body with comprehensive authority in these two areas. interestingly enough; however, section viii is not like the

shield, it does not comprise all of human life. conspicuously missing is any reference to what the 18th or 19th century mind would have called the separate sphere. the private realm of family. child rearing and sexuality. there's no reference to education, to health, morality, to what today we would call the quality of life or the tone of society. that presents us with an interesting question to ponder: what does this silence mean? the way we read this constitution may matter quite a bit here. statutory readers may invoke thed adage -- the only latin in the whole talk. to affirm one thing is to exclude all others. fundamentalists, i think, often find prohibition in biblical -- silence other forms of reading

might consider the entire text and context the general welfare and necessary and proper clauses, and note that other sections of the document occupy themselves with setting out limits on congress' power explicitly, perhaps this section is not to be read as a set of limitations. the answer a reader reaches depends on the reader's idea of america. on what the reader sees in the shield. even though the constitution contains many parts, i think it's our duty to tread as a whole. our job is to read the entire text with our entire selfs. vladmir once suggest that a good reader doesn't need specialized training but does need an

dictionary, imagination, a good memory, and some artistic sense. when i read the constitution as this kind of reader, it says some interesting and surprising things to me. some of them it says in the words it choose. some it says in the way it places those words in ideas and conjunction or separates them. some it says in the words it doesn't say in the places it doesn't say them. i'm going throw out the end a few things i find that the constitution says: if any of these readings are surprises, perhaps i can explain when we come to questionses in a minute. to me, the constitution says its purpose is to create a powerful national government. not to restrain it. to me, it says that its aim is to restrain state governments and not to empower them. it says to me that congress remains the most important political institution in

american life. not the president, not the state governments, and certainly not the supreme court. it says to me that the constitution exists within a context of international law than we are to use and apply international legal forms and -- norms and concept in our courts, our legislature, in our states, and in our executive branch. it says to me that the right to vote has become central to our form of government. that right is mentioned five times in the constitution. more than any other right. at no point does the constitution's text suggest there is a power in the supreme court to decide that congress has protected that right too much. or that access to the ballot has become too easy. i could go on, but my reading is my own. i'm not moses, i'm not even mel

brooks. i'm not here to hand down words. you may read the constitution differently, and if you do, you have my respect as long as you are reading this constitution. not the articles of confederation, not the decoration of independence, not madison's notes, not the federalists, not second treaties on government. not magna magna carta. this constitution not common law. this constitution not natural law. this constitution not define law. if you are a reader of this constitution, then to quote walt whitman, the greatest constitutional poet. every at tom belonging to me is good belongs to you. so thank you for your patience. i'll now take your questions. [applause] [applause]

>> go the microphones, folks if you want to ask questions. we're being taped for c-span. i think you are first. [inaudible] >> the next supreme court opinion justice scheel ya or justice thomas were to write that madison has risen from the dead and appeared to them personally and that was behind their -- or any of the seven justices and that was behind their opinion. what would your reaction be? >> well, you know, i don't want to pick on justice scalia -- that's a lie, i really do. he basically has said in his opinion in his concurrence in citizens' united. justice stephens writes a long dissent in citizens united using originalist materials to say he believed that the framers of the constitution would not have wanted corporations to have the

free speech rights given to them or found for them in that opinion. and justice scheel ya takes it on and said, well, you know, that may be true. the things you found may be true. that's but a in 1787 people thought of corporations as involving monopoly and our corporations don't. our framers -- the framers, if they knew that, would really like them, which i translate as, you know, i knew the framers, i worked with the framers, the framers were friends of mine. trust me, the framers would have thought that. and i think the answer, of course, would be -- first of all, if madison came back to life and said can we have a individual man state -- mandate for health insurance? his answer would have been health insurance? what is that? wouldn't have known what to say. beyond that, i think he would have refused to say his intention. madison was very red sent. he didn't believe the intechnologieses of the framers

should coverage. beyond that, if he did say it we would say shut up grandpa, we have problems to solve now. his opinion is very important. i'm a great madison fan, but our opinions are important too. that's what living in a democratic country with a constitution means. >> my question may be more difficult to frame. that is; what your saying -- you're saying is music to my ears. everything you said about the bible, et. cetera. and i live in california, i live in los angeles, i where i have a bubble of people who also agree with me. but it seems as though the country overall does not agree with you. and my question to you is; how -- given today's congress, given today's supreme court, i don't have have to be tactful. my question to you is, you have written a book, you're hoping people listen to you. we're here. what is your overall sense of

-- are you dispressed? are you disheartened by what is going on? do you have hopes that things will change? >> that's a wonderful question, i think well framed. ly say a couple of thins -- things since 1992 or so, that's 20 years, particularly gaining force in the second -- clinton's second term, bush v gore coming through george w. bush's term and the current one. it's been a great time to be a constitutional law professor. most of the time you say, you know, i'm a legal scholar and i read the original materials and people run away. but in the past 15 or so years they're like gosh, i want to to you what about bush v. gore. in periods of time where constitution nam they are resists are promise nant, they are not necessarily the best times for the republic.

you know, i once framed a mock article i published on the web, you know, in which it said; increasing numbers of constitutional scholars are alarmed by the nation's prosperity and peace. the founding fathers did not intend the country to thrive. they say we need a crisis. and we are in a crisis. people are talking about the constitution, they're thinking about the constitution, that is exciting. there is, unfortunately, a lot of, what i regard, as fairly toxic nonsense being put out, in many ways by some fairly self-interested people. i have -- actually attended tea party constitutional school. i thought why not? and i went? and i learned i was in a church basement in northern virginia an event sponsored by the local republican party. they told me that the constitution was written by god. literally -- i don't mean in a metaphor it

was handed down to moses on mount sinai that moses used to govern the israelis. they migrated to britain where they bang the anglo which strikes me as trading down. [laughter] but i don't want to make a big dream about that. they became the anglo saxons and brought the constitution across to america. the result being anything that wasn't done in fifth sex i -- century saxon england is unconstitutional. it's being put out by people with a lot of money. in a time of constitutional crisis, the only thing you can do is take part in the debate. it if you think what you think and see people saying things you think are wrong. jump in. i think letters to the editor are tremendously important. i think communicating with your

members of congress and your state legislatures are tremendously important. there are anemia missouri who, i think, you know, i think wrote to the governor and said no! whatever you may have read, we can't really repeal federal law in missouri and make it legal shoot atf agents and the governor, from what i heard, has vetoed that nullification law. these things are out there. one of the nice things about the constitution is that people are really interested in it. you know, they may have been ideas, but they're really interested in it. i think it's very important to understand that popular constitutionalism is an importantly powerful force in american history. constitutional law and constitutionalism, is not and should not be the property of trained people like myself and judges. everybody needs to get involved

and educate themselves and say what they think. so that -- , you know, the answer is we're never going to probably get to a place where it's all okay. basically what the constitution is a set of rules by which we can fight each other without killing each other. let's do it; right? >> i live in district of columbia, which also known as the last colony in north america. we have no congressional voting right -- [inaudible] i wonder how much you thought about the issue whim exam -- compile exafming the document including dread scott decisions and so. the underlying spirit for who is real. even when my skin is white i'm invisible. do you see in a -- [inaudible] should give us -- makes real people? and if so, what can we do about it? especially can you tell your senators and governor and governors campaign? >> i hate to break this to you. but i live in the direct.

>> yeah. so you know it in your heart every day. >> yeah. >> what can we do? to me, e all lose when everybody is -- [inaudible] with the lack of citizenship and inability to talk about it and make the connections. >> this became an issue most recently at the beginning of the obama administration because the congress had before it a bill that would by statute have given a congressional representative in the house to the district. and i hate to say this, but having read the constitution other and over and thought about it. it was pretty clear to me it was unconstitutional. the house does not get to give representation to anyone but the people of the several states. that's the language in the constitution. attorney general holder tried to make -- which offered that opinion by asking the solicitor general if he could defend the other statute. the solicitor general being a defender said yes.

i think it's pretty clear the constitution excludes congressional representation for the district. in order to get electorial votes we to amend the constitution. if you read that amendment carefully, i tread a bunch of times and suddenly i was like -- [inaudible] you notice that even in giving the district its elector really a votes, it insists that the district is still not equal to any other state in the union because the district can never have more member -- more -- no matter if we move the entire population of the country in to the district so there are 300 million people living here, under the constitution we could still only have three elector because the district can never have more elector than the least populous state. wyoming has three, the district has three. there was a time, in fact, when the amendment was passed the

distract clearly would have been entitled to four. they had to make sure they would get some representation but not as much as everybody else. the inequality -- the mind set of the thinking of the district unequal is pretty powerful. it would take a constitutional amendment or congress could -- there's nothing in the constitution to forbid this. by statute admit the district as state. that doesn't take a constitutional amendment just a statute. it's not going to happen but it could. this gentleman. >> i want to ask you about something very much on the minds of the country the last several weeks. that the war make powers of the president. i want to ask you specifically what you see in the constitution that answers the question that we've been pondering. does the president have to go to congress for authorization if he wants to say, attack syria.

is that, as the president's language, suggests something he chose to do but wasn't required do? >> you know, i think this is a wonderful question, and we have been arguing about it. it's an illustration of my prince. -- principle when things are going well no one has a question for the con law professor. we are faced in this situation by the assertion bay president of an authority that no president has ever actually used before. let me explain what i mean. we know the president uses military force under a number of circumstance without going congress. the fact is that most of the time the president uses military force in the case in to defend

american troops and personnel abroad. to defend american civilians abroad, and i think there's a pretty general agreement that no matter what interpreted mained you use, the president is to have that authority. as commander in chief. the president has asserted in the years since world war ii the authority to use military force under statutes of the united states. statutes that have been ratted fied by the senate -- ratified by the senate. such as the united states charter which was used as the justification for entering the korean war without con -- congressional authorization. even in closet -- kosovo, the administration was able to claim the authorization of a bilateral -- multilateral treaty organization, which we were

members, in order to carry out the resolutions, and some in tune with the u.n. security counsel resolutions. a lot the security counsel didn't authorize or participation. in syria we don't have any of that. we don't have american troops or personnel or civil -- civilians at risk. i'm not disparaging -- i'm not deep candidating -- deep are a candidating the or -- horror of chemical weapons. they're not being used on americans at present. we don't have a treaty or a multilateral alliance, even, that is asking us to join in. we certainly don't have the authorization of the united nations. under that situation, it seems to me, that the president is beginning hostilities from what i call standing start. we're not being pulled in to it. i think that is the circumstance under which the phoenix, if you want to go to the history, we can do that also.

suggests in that circumstance the president has to seek authorization from congress. it doesn't have to be a, quote, deck declaration of war. it's now obsolete. but the president does not have the authority, and i can't find anyone who has asserted it until recently, until the second bush administration. the president does not have the authority to simply decide we ought to be in an armed conflict with another country and start it. that is the kind of decision that the president needs to go to congress for. i was extremely hardened when the president decided to do that. your second part he's said, i don't need to ask for this, but i'm going to. and to some extend, that's a kind of part of the -- i would just asoon he hasn't said that, to be frank. it's a part of the duck and perry game that goes on.

the two branches are a little bit like world wrestling entertainment. they are talking smack about each other outside the ring. i'm going bring you down! i'm going to hurt you! and this is what the president -- the president is doing this in part,ic -- i think, to enhance his bargaining position with congress saying i don't really need this. if you vote against it, i may do it anyway. if i'm a great success, you will look like an identity -- idiot. i'm not sure in a, you know, i'm not sure in things you hear about what is going on inside the administration suggests that really wouldn't happen if congress actually held a vote. and voted this down it's hard for me to imagine they would then say we still have the authority. we don't know; however, because as far as i can tell. i've asked a lot of historians about this in the last two weeks. we've never had a situation in american history where the president has asked for authorization to use military force and congress has refused.

so i don't know. we're writing a new chapter here. future constitutional groups will be discussing this precedent. it's a good time to be a con law professor. what can i say? we have time for another? one more. >> one more. >> okay. thank you is inspect is more the historical line. i guess you mentioned there were 13 proposed amendments to the constitution of which eventually 10 -- >> yes. >> have come in to affect. one is recently, i believe, is the early '90s. >> there's 11 if you count the one in the early' out. >> first ten and the one that came in the early' 90s. you said there were two that got lost. could you mention the two that got lost? >> yes. value one was to able to the preamble that the sovereign sincerity and the power rest in all people. that was something madison believed and a lot of people believed. he wanted to spell it out. it wouldn't have been particularly operative.

there was also -- as a kind of -- to the antifederalist. they were very critical of how small congress was going to be. a very elite organization and far from the people. madison put in a provision that said it can't be -- can't be fewer than a certain number of people per representative. representative or more than -- i can't remember. but exactly governed how many people could be in a district. it turns out that it's good that we didn't put that in. and as i recall, that didn't actually make it through either house. there was also an amendment that was proposed that the time that would have made the bill of rights binding on the state. we know it didn't pass. it took a civil war to do that. that answer is extremely

confused. i thank you for asking the question. [laughter] so we're done? thank you for coming. [applause] [applause] also, from sellers everywhere. thank you. [applause] [inaudible] [inaudible conversations] ..