this is a big concern and i think we see increasingly from environmentalists, superior department of performance will require more redevelopment as opposed to sprawl development mr. gosar metro-area is. >> and it's going to be tough. >> when i was a young lad i was chair of a zoning board in midtown manhattan at the chaired -- it was all development. i chaired public meetings every month. people recommended say this will

be, this project will be blocked because it interferes with my view, or things like that. sometimes people would show up and they would say this is destructive of the culture of the neighborhood, for a variety of reasons. and you have to, i believe, review the input but also believe it's not necessarily last source of wisdom. so you need it and that's one of the reasons the environmental review is a great because it's so destructive because it gets facts on the table, allows the debate to happen. but the community shouldn't make the final decision because then the common good gets killed. someone has to be looking at both the views of interest and, good to make the final decision. >> you're talking about someone who represents the community would still have the guts, is that what you're talking about? >> in the case of new york city, let's say the mayor, so not just the community. if you have team unity-based decision-making solely, many of

the articles of confederation and nothing ever happens. >> i think from a business perspective we often say that there's got to be a room between yes and no. those can't be the only two options, that yes, this has to be an option. in essence we become benefit of verse as opposed to risk-averse. attitude is everything an aptitude is, too. we have a situation now where we have sometimes where these layers of regulation and we expect officials who come in having been elected or appointed to automatically become experts on these things, and it is virtually impossible to expect them to do that. so i think we have to think about the regulatory framework where we come if we are going to allow people to have an educated discussion about these things and to be able to have some

authority and transparency i think we got to come back again to have we created a sense of where the regulatory environment is preventing us from being able to sit down and have that conversation, and to be almost afraid of moving so paralyzed that moving forward, that we are forgoing the benefits that we could get out of projects is only we could find somewhere between yes and no. >> and although this is the end of our panel, it is certainly not the end of this conversation. please join me in thanking all of our panelists today, and thank you for joining us. [applause] >> booktv is on facebook. like us to interact with booktv guest interviewers. watch it is and get up-to-date information on events. facebook.com/booktv.

>> this week, booktv takes a look at "the weekly standard"'s online bookshelf to see what that publication is recommended. on the shelf this week --

>> to see the full list visit weekly standard.com/a bookshelf. >> in the past education was limited to the opportunity down the street at the local school but now, particularly for high school students better learning is this bundle of digital learning services, some other formal and paid for by the state and some that are informal. the resources for students and parents find online. so it is becoming important that states make sure that every family have access to a variety of full and part-time online learning and that bishops will remain open to those possibilities. >> digital learning and the future of this education system with transix tonight at eight eastern on "the communicators" on c-span2.

spent in light of the recent supreme court decisions announced by the court at the end of its 2013-2014 session on june 30, booktv presents portions of author talks on the supreme court and the cases the court has handled. during the next hour you hear from former supreme court justice john paul stevens, harvard law professor laurence tribe, and georgetown law professor randy barnett. you can watch all of the programs featured here in their entirety on our website, booktv.org. we begin with harvard law professor laurence tribe, author of "uncertain justice: the roberts court and the constitution." professor tribe argues while the roberts court is widely portrayed as being ideologically split, producing one, 5-4 decision after another, there are other cases which the liberals and conservatives on the court find common ground. >> one of the researc researches working with medicine, to the

kid named matt went home to new hampshire in late spring and spent some time talking with his high school music teacher. she knew that he went to harvard law school but did know that he was working with me, and she kind of unloaded on him about our great disillusionment with the supreme court. she'd been looking at the headlines about how partisan the divisions seem to be, a lot of people whose journalism she respects, people like linda greenhouse, were saying really this is a very partisan, very polarized court. why aren't they just a bunch of politicians in robes? why should i trust these guys? and my student tried to reassure her that it's not really as bad as all that. she wasn't convinced. she told him she listened to the confirmation hearing when john

roberts who was going to be, chief justice made an analogy to umpires. no, she was a baseball fan and she didn't find the analogies are persuasive. she said that the new chief justice says he's only going to be an umpire, calling balls and strikes. it's all neutral, it's all objective, people don't go to a ballgame to see the umpire. they go to see the batters, they go to see the catcher. they see the picture. he was only going to be neutral. she didn't find it very convincing. she realized that there is judgment involved, even in the work of an umpire. judgment about the strike zone. one umpire famously described as a living, breathing document, the way some people like to describe the supreme court constitution. she was a lot more convinced by what elena kagan said during her

confirmation hearing, when she said that it's nowhere near that robotic or mechanical, especially in tough and close cases which are the only ones that reach the court. judgment is involved. we bring a lot of ourselves to the process of decided cases. and that's as it should be, max told her, and she responded. she was very bright. she did know a lot of law but she said look, if it's not what roberts claims he could make it, not just an umpire calling balls and strikes, why isn't it just a matter of unelected judges serving for life, imposing their political preferences on the rest of us? max is a very loyal research assistant. his reply was, well, read larry tribe's book last night good for you, max. the umpire analogy he told it

was great pr and it actually did contain a germ of truth, namely good judges like good umpires should apply their philosophies consistently. they shouldn't bend them to cut slack for their favorite players or teams, to help those that do like bring home the pennant. or to hurt their political adversaries. that much is true. but, of course, the umpire analogy is a vast oversimplification. it suggests that personal judgment, personal understanding of what the constitutional -- constitution is about, what is ambiguous terms mean, what our national history commits us to, have nothing to do with it all. ambiguous language, like liberty, equality, ambiguous principles like what the role of the court should be, how active

a role he should let in american life. all of those things don't come down from on high. they are not written in stone. they are not objectively decipherable, and we shouldn't expect justices not to bring their personal philosophies to bear, nor should they always expect to find their philosophies striking us as right, or even as neutral when we might he coming from different worldview. elections, of course have consequences. and the selection of justices by a series of increasingly conservative republican presidents with a certain perspective on the world and on the constitution is among those consequences. the umpire analogy is off base, unintended homage to the extent that it pretends that the system

expects judges to be blank slates, to bring nothing of the views of the world and of the law to the table. so max did urge his music teacher to read the book. he said they would teach even legal experts some important lessons, but it would also be fun, he said, for her and other nonlawyers. it's filled with great stories about everything from really fascinating cases to the justices personal obsessions with things like baseball. one story that he mentioned to her that features in the book was about justice potter stewart's devotion to the cincinnati reds, which extended to making sure that his law clerks were watching this small tv that he set up in his chambers while he sat on the bench during the 1973 playoffs between the mets and the reds. the clerk knew his bosses priorities, and in mid-argument

on some technical preemption case, he sent stewart i know. this is what the note said. he slides to right, agnew resigns. [laughter] in that order. my research assistant went on to explain that reading "uncertain justice," which he hadn't read. he helping with a couple footnotes, like he touched the tale of an elephant from someone else touches the trunk, so else touches the underbelly. but nobody has seen the elephant full. so he finally saw the elephant, and here read it and he said that reading it to him that the standard story about the increasing number of five for splits along political and -- 5-4 splits along political lines make good press but it shouldn't disillusion her because is a lot more misleading and informative. it turns out that only about one-fifth of the cases since roberts became chief justice in

2005 have been divided 5-4. and at least a third of the 5-4 splits involve unlikely bedfellows. like alignment where one of the liberals, like breyer or sotomayor or kagan, joins with roberts, kennedy, thomas and alito to create a 5-4 a limit at which the four dissenters are the other three liberals plus scalia, who is invariably more protective of privacy rights from the government, and in that sense, more liberal than breyer are pretty much any other justice. you wouldn't know that from the reputation that scalia has nurtured as a radical, uncompromising conservative. just yesterday, for example, i'll andy kay can lead a 5-4 decision that ruled against immigrant children who had the bad luck to turn 21 e4 their

parents for green cards got to the head of the slow-moving waiting line for an immigrant visa. cadence opinion was joined by anthony kennedy, a republican, ruth ginsburg, a democrat, and kagan's conclusion was supported in a separate opinion written by roberts and joined by scalia. the dissenting justices who ruled in favor of the boy who had turned one after his mom who it emigrated from el salvador in 1998 had waited in line for eight years, but it was his misfortune, he turned 21, he had to go to the end of the line. a were also unlikely bedfellows, clarence thomas, samuel alito, stephen breyer and sonia sotomayor. that was not that a typical. in lots of difficult and divisive cases, you get these unusual alignment.

there was a decision the book deals with in some detail where he attended the lead a 5-3 majority, kagan was recused, striking down most of arizona's show me your papers and the immigrant law. scalia wrote a dissent that called the court's decision mind-boggling. he went out of his way and outside the record of the case to attack obama for something unrelated to the case. his use of executive power to favor the immigrant children known as the dreamers. the "washington post," which usually selects the president or a senator or a cabinet member for the honor bestowed on scilly its worst week in washington price. partly because his also outvoted in the obama characterization that came down three days later. those are just some examples in the book deals with film, swenson, gives you a way to understand them.

it's not just the unusual alignments in cases decided by sort of a bare majority that expose the fallacy of the increasingly common description of the roberts court of the gang of right wing political hacks in robes. there are plenty of nine do nothing rose which are a california have to decisions in 2012-13 in which the nine justices are divided among themselves just looks unanimous but, in fact, they're pointing in lots of different directions. and if you study the directions, and to don't have to be sort of illegal maven to understand them, you just have to speak plain english and decipher what the court is doing. they divide among themselves in ways that tell us a lot more about what is really going on and what the court is likely to go next than the numbers alone suggest. among the most intriguing and eliminating divisions within the

ranks -- eliminating divisions within the ranks are those between scalia and alito. when alito was nominated for the court, people called him scalito. they battled one another furiously about free speech, about privacy, about the need to stick to the original meaning of various parts of the constitution. for instance, in the oral argument about selling violent interactive video games to kids without the consent of their parents, it looked like alito was prodding the lawyers about, well, you know, hansel and gretel, that's pretty violent. the original constitution didn't treat a violent speech differently. and alito, losing patience, told one of the lawyers, i think what justice fully wants to know is what james madison thought about video games. did he enjoy them?

and what if they were violent? or what about the opinions involving the government's use of a gps to track somebody's car for a month without a warrant? in that case there was an even more fascinating active with in the opinions between alito and scalia. scalia said the art analogies from the 1790s to this, and alito basically said, yeah, like what? and scalia said, well, a constable could hide in a coach for weeks to monitor the owners movements. and alito in his concurring opinion, and this is one where all nine justices thought that following somebody with a gps for a month without a word was impermissible, alito wrote, something like this might have occurred in 1791, that it would have required either a gigantic coach, a very tiny constable, or both. not to mention a constable with incredible fortitude and

patience. and it's just the tip of the iceberg. over and over again, justices who come from the same wing of the ideological spectrum have a different take on the constitution. they will sometimes agree on the bottom line, but their disagreements tell you about about things like the pending case about cell phone privacy and about lots of other cases where if you just count noses and do arithmetic, you going to be completely misled. after exploring similar patterns and contradictions on topics like the quality, gun rights, states' rights, the book which people across the spectrum, putting ted olson, the guy that beat me and david boys in the bush v. gore case, described it superbly evenhanded. makes me feel good when people across the spectrum say this is

a fair treatment of deeply divisive issues. well, after exploring those patterns and contradictions, the book shows that the court is in the business of undertaking not only some scary, but also some promising and innovative inquiries into how government's powers to coerce and to bribe with offers short of coercion might be limited by the constitution in areas ranging from obamacare's individual purchase mandate and its medicaid mandate to the states, to plea bargaining in criminal cases, the loss of that condition of federal subsidies on the recipients to sing the government's tune even when doing so means undermining the recipients integrity and its ability to pursue its social mission. let me just say another word about that example.

in a decision that i think is overwhelmingly important but that got very little attention last year, roberts, writing for the court, said that the government had no authority to tell nongovernmental organizations that are fighting hiv/aids around the world that it could get government money to supplement its private resources only if it promised to join the governments anti-prostitution and anti-sex trade campaign. now, a lot of these characters said, well, if we do that we won't get the trust of the sex workers. scalia and thomas, dissenting from the roberts opinion striking down that condition, said, too bad, they can just say no, turn down the money. and roberts says freedom to turn down the government's offer is always a sufficient answer when the offer uses government leverage over private resources

to get people to sing the government's tune. so the court is moving in lots of interesting directions that the book deals with. the book identified powerful trends in various justices views of coercion and the marginalization that connect important aspects of decisions discussed in the book. like, for example, the 5-4 ruling upholding the core of obamacare. the seven-2 ruling striking down the medicaid part of obamacare. the 5-4 ruling striking down one campaign finance regulation after another. those may not seem like a lot to do with each other, but i show in the book that, in fact, they are born of similar views and they are subject to similar contradictions. and there are decisions that, of course, i don't discuss in the

book that were handed down since it was finished, like the decision in town of greece versus galloway, upholding sectarian town meeting prayers. terrible decision, in my view. over for powerful dissents, the most brilliant of which was probably that of elena kagan. maybe i'm biased. she was a student of mine but that's balanced by the fact that she was chief justice of a student of my. i see a few of my students in the room, so i've had a great time teaching, and they give me a kind of look into the approaches that various people are likely to take. one of the things about the case that distressed me most was that all nine justices, including the supposed liberals, when out of the way to say that the supreme court had been right 31 years ago when it upheld legislative prayers in march versus chambers.

now, that's the beginning of difficulty for the separation of church and state. so they were counting angels on the head of a pin when he should've been saying that the pin was rusty to begin with. anyway, the more i read from the book or give away its insights in advance, the less we'll be tempted to read it yourself. that let me just, this is advertised as a reading from the book, let me read a little bit, a couple of paragraphs from the chapter called freedom of speech, sex, lies and video games. and area by the way are almost all the press about the court is wrong. there are lots of people, distinguished people like floyd abrams is that it's the most speech protective court ever. there are other people like adam liptak of the new times who say what's really going on is justices vote for the speakers they agree with and not the other way around. i think the book shows that both

of those positions are absolutely untenable. anyway, let me begin and end with these two paragraphs from the freedom of speech chapter and then take your questions. throughout the late 1960s, the justices of the supreme court spent at least a day each year in the basement watching together. by all accounts it was fantastically awkward. unable to define obscenity but convinced that the first amendment couldn't possibly protect unduly dangerous and morally corrupting expression, the court was forced great constitutional law one sex scene at a time. the films range from scientific documentaries to the improbable excavates of lesbian nymphomaniacs. justice thurgood marshall thomas overrides hero, took merciless pleasure in their readiness the clips for the special benefit of justice john marshall harlan the

second, an elegant former wall street lawyer who was by then losing his eyesight, so marshall would basically say okay, john, look what's happening now. look what he's doing, look what she is doing. [laughter] mocking justice potter stewart's i know it when i see it, folks would call out in the dark, icy it, i see it. [laughter] in 1968, but 20 years after serving in the u.s. navy, a still youthful stewart reflected a more adventurous times and confided in a particularly curious clerk. you might wonder who that was, but i think you'll all guess, that he had indeed seen it, when i said mr. justice, have you seen it? and he said, just once off the coast of algiers. [laughter] and that's all i was ever able to learn about what it was that he saw.

>> we continue our look at the supreme court with former supreme court justice john paul stevens, author of "six amendments: how and why we should change the constitution." justice stevens appeared on booktv's "after words" program to discuss his book with jeffrey rosen, president and ceo of the national constitution center. during that discussion justice stevens talked about the citizens united case and the need for campaign finance reform. you can watch the full discussion on our website, booktv.org. >> justice stevens going on especially passionate about the subject of campaign finance reform. and you propose a constitutional amendment that says the following, neither the first amendment or any other provision of this consultation shall be construed to prohibit the congress or any state for imposing reasonable limits on the amount of money that candidates for public office or their supporters may spend in election campaigns. and in the chapter you say this

is consistent with the history of the first amendment, and to note that president teddy roosevelt proposed a bill that was passed that said that corporations should be treated differently than individuals when it comes to campaign spending. tell me first about the history of the first amendment and campaign spending and what you think it's appropriate to treat corporations and other nonvoters differently than voters in elections. >> guest: well, because the framers decided that the voters should elect their representatives. and i think that in the history has emphasized the fact that corporations don't vote, and they have business purposes that motivate most of their actions. and i think a lot of the debate in the citizens united case, and in other cases, has been whether or not corporations should be allowed to spend their general funds or even a special

organizations that their shareholders support should spend as much money as they do. but actually as i've reflected on it i don't think it's just a corporate problem. although that's gotten most of the attention. i think that individuals also get involved in election contests in jurisdictions where they do not have the right to vote. and it does seem to me that one of the key cases that the court overruled in citizens united was michigan against the chamber of commerce, or austin against the chamber of commerce, in which michigan voted prohibition against corporate contribution. but actually it seems to me that what they were really concerned about is money coming from non-michigan sources. and, of course, corporations

generally represent interests, out of state interest frequently. and it does seem to me that there is an important difference between the right to participate and support candidates that show the right to vote for, and candidates from other jurisdictions. and the holding that i, it's critical in my chapter on this issue, is part of the decision in buckley versus valeo that decided the year i came on the court, but before it was decided when i came on the court that i was not eligible to vote because it'd been argued before. and in that case the court said that it violated the first amendment to try to limit, even limit, reasonable limits on campaign expenditures.

justice white dissented from that holding and he was the only justice who did. the holding has been followed consistently in the -- excuse me. in the years following that decision, the court has been consistent in holding that the limitations on campaign expenditures are impermissible and interfere with the total quantity of speech that is used in campaigns. and i think in order to correct the error in the citizens united case itself, you basically have to correct the prohibition on the use of -- which does require in my judgment a constitutional amendment because the court, it has been almost unanimous in the prior year's end its prohibition

against, limitations on expenditures house of representatives great power in this chapter, the insight you just shared but there's a difference between voters contributing in noncollection and nonvoters including both corporations and foreigners contributing to other people's elections. that was central to your criticism of the mccutcheon case which the supreme court decided recently. the court began by saying this is about the right of individuals to support their own candidates but you told congress recently that's not right, but they're out to try to contribute money for other people's elections. tell us more about your criticism in the mccutcheon case. >> that's exactly to true. and, of course, the mccutcheon case is decided after i had written the chapter your butt i think i've included the word reasonable in my proposed amendment because i think that the actual limits that were imposed at the time of the

buckley decision may well have been designed to protect incumbents. and i don't think they discussed the possibility in his dissent, i think if limits are placed too low it could be a valid argument that they're favoring incumbents. but that's why i said that there should be the reasonableness requirement. which i think would solve the problem. i do think that if congress focus on regional limits, and i don't think there's any danger that my former colleagues would actually conclude that any limits whatsoever unreasonable, after a name that was adopted to correct the heart of the problem. >> host: now, the objection of course is that reasonableness is not self defining and judges have to decide what was reasonable. adam liptak from the new york times asked you a good question.

he said with the reasonableness requirement allow restriction on the new york times ability to write an editorial on behalf of any candidate. what was your response? >> guest: my response actually is twofold. first of all i don't think such a restriction would be reasonable. but it isn't necessary the courts would be defining reasonableness. the court would be repealing a congressional decision as to what is -- it thought was reasonable. and, of course, there would be a perception that the choice congress made was permissible, because you would just defer to the legislative judgment, at least in the first instance, and if it was so obviously, if they alloweallow different limits for different candidates, for example, they will surely be unreasonable. but i really think the amount of discretion that that word would permit the congress to exercise would be far different than the present rule which says any

limit, any contribution whatsoever is impermissible. >> host: what would be an example? >> guest: well, as i said, one that sets, welcome to other examples. one, one that prohibited newspapers from endorsing candidates. one that provided a greater latitude for incumbents than non-incumbents. one that provided a different amount for wealthy candidates, different financial circumstances for the soon-to-be justification for allowing different limits. it would not be a reasonable action. >> host: and i and in your citis united case in the also gave the example of how the press is different and the first amendment suggest that newspapers should be treated differently than other for-profit corporations. >> guest: and it seems to me

for the existence of the press wants my provide an adequate justification for treating the press differently from the candidates themselves. >> host: is that also your answer to the question that was asked of them solicitor kagan, could you restrict circulation of a book? >> guest: i would think so. as bush might have trouble defining whether it's long enough to be a book, but i think a lot of these, theoretically, you can't come up with an answer to every hypothetical. but when you actually have concrete proposals in front of you, you can really identify what is unreasonable about what's difficult. >> host: one of the interesting things i learned from this chapter is your discussion of president obama's statement at the state of union, citizens unit would open the floodgatefloodgate s of foreign money and u.s. elections. justice alito famously shook his head and said not true, which

went all over youtube. but you said the president obama was actually correct in his possible extension of citizens not to strike down the restrictions on foreign donations in u.s. elections. the supreme court refused that you are concerned that the logic could actually strike down those limits. >> guest: i think at the time immediately after the decision, that was a reasonable interpretation of the decision. and i certainly, in my dissent suggested it was a possible interpretation. as it developed later in the case i cited some length, discussed some length in the book, a three-judge court held that it was permissible to prohibit citizens of canada and israel from making contributions to elections in the united states. and not just contributions, but

expenditures. they could not spend their own money in support of a candidate. and the underlying rationale for the three-judge decision written by judge kavanaugh of the district of columbia court of appeals basically was there's a justified interest in the government running the election, having control of the election and not have outsiders come in and tell americans who to elect. canadians cannot spend their money. it is precisely the same rationale that would support michigan's decision that we wouldn't let citizens from indiana or wisconsin spend unlimited sums of money trying to influence our election. >> host: how would you state the constitutional dimensions of the principal? two states have an interest in preserving the integrity of their own election? >> guest: it is a powerful state interest in having fair

elections, and it's an interest that can trump the first amendment right in certain situations. the court on its views on this issue is start a treaty of the first amendment as trumping everything else. and i think that they fail to give adequate weight to the interest in people running their own show. >> host: people running their own show, interesting, fair elections but a ghost about this theme of neutrality, nonpartisanship that ever has obligation to obligation to be neutral and fair. you really believe that strongly? >> guest: thatcherite. in fairness in the conduct of elections, should enable the government to adopt rules that give rival candidates an equal opportunity to persuade the voters. >> host: now, the court and citizens united and more recently, mccutcheon, is

focused in the interest in avoiding corruption and its defined corruption very nearly to basically said what broke while corruption. you vote for me or i will give you a lot of money. -- quid pro quo. did the framers have a broader view treachery the basic mista mistake, if the courts do for us is was the only justification for regulating campaign financing, you just rely on the bribery laws the state will together. but that is a more powerful instance, nothing to do with corruption in having elections fair and giving each candidate and equal opportunity to compete. it's not a question of -- it really is a question of identifying reasons other than corruption for imposing requirements of fairness in the

contest between opposing party. it's the same interest that justifies limiting speech in litigation. when you have an argument before the supreme court, you can't go on and on forever. the court imposes rules that limit the opportunity to persuade, and they are fair to both parties. the main criterion's is fair procedure, fair treatment of the adversary contestants. >> host: you also give an example of presidential debates, it wouldn't be fair to give the richest candidate more time than everyone else. >> guest: that dawned on me watching one of the republican debates in the primary before the last election, that certainly the moderator has a duty to treat candidates equally. >> host: one thing that struck me in the book is that some into principles, patterns, rooted in constitutional history. you talk in your citizens united dissent that government be responsive to all the people and

not just a few. >> guest: that's exactly right, yes. >> host: does this have any i got the goals were scored i had the privilege of interviewing you years ago and she talked about your experience on that commission investigating the alleged corruption in chicago of a case where a judge was let's have thrown a case in chin for a bride and you to great acclaim said dissent issued in that case the whole scandal might have been avoided. does this concern with neutrality, concerned with fair treatment date back to experiences like that? >> guest: i suppose it does. in that case it was also involved the appearance of neutrality because it is certainly, judges should not be buying stock, recommended to them by litigants which is what happened to a couple of illinois supreme court justices. but the appearance of

impartiality is very important in the process -- >> weekend our court with randy barnett, professor of the legal theory at georgetown law center. professor barnett is a contributed to the book, "a conspiracy against obamacare: the volokh conspiracy and the health care case." here he talks about the supreme court's decision to uphold the constitutionality of the affordable care act individual mandate provision. a reminder they can watch this program in its entirety on our website, booktv.org. >> you are sitting in the location where the first public arguments against the costs and jolly of obamacare were aired. in this very room. in heritage foundation, in december of 2009. i was on a program organized by the heritage foundation in which we presented a paper that would vote for heritage in two weeks arguing for why the offer look

at act was unconstitutional which is not been on the committee ar are just come out f committee and is a paper that i wrote with pot of heritage foundation entry and portly nathanael studios then a legal associate who helped to to some of the heavy lifting as the candidate, and we wrote this paper that we presented in this room. i remember meeting orrin hatch in the green room outside the door because he was the keynote speaker. so first he spoke, gave a wonderful speech about why the act was unconstitutional, me or did most of our arguments, and then i had a debate about it and i argued it was unconstitutional. you did the heritage foundation big up to argue that the law was constitutional? none other than eugene volokh, the head of the volokh conspiracy, the founder that i was the one of the reason why we have heard from eugene to in the course of the debate one way or the other because he was already on record in this debate as arguing it was constitutionally, you just want to stay away from

the subject from then on and as the argument to the. this all happened in this room and heritage foundation deserves a tremendous amount of credit for what happened in terms of a child together thing that is probably wes -- less well-known was after the public that we went upstairs to a lunchroom in which we briefed congressional staffers on the argument and this was crucial because up until this point although the senate has a procedure in which you can make a point of constitutional order to object to the cost of health of the build it was not clear the republicans in a single going to make such an objection because it was not clear they knew why the bill might be unconstitutional and it was during the briefing, private briefing with for the staffers upstairs in the building in which we laid out the argument that subsequently shortly thereafter senate republicans did make a point of constitutional order, there was a televised debate on c-span which brought to the public for the first time the argument that were against the gaza city on the affordable care act which at

least several senders relied on heritage foundation paper making that argument. it all started here and here we are again. before i say much more i just want to point out something that has been set up to now and i'm glad it hasn't. it leaves me something to say. this is a terrific book. it's just a really good book. i was getting ready this morning at us trying to psych myself up to participate in everything so i went back and i decided i would read a little bit of the beginning to remind myself what was in near. your. we were working on the pages and the manuscripts some time ago i started reading it and i couldn't put it down. it wasn't only my own stuff i was interested in. although i like that stuff, too. it wasn't just me. it was just a fascinating read. so i want to urge people who think fine, i've watched the program, now what? why should it be t the book? the book is interesting debate that is just inherently interesting and dramatic as you

see it evolve and the emotions coming out of these there is blog post as we debate each other. also you will learn a lot about constitutional law. it is like a tutorial on constitutional law as you read one argument, injury the counter argument. when you walk away from this book you are going to understand constitutional law all lot better. in part because warren it was immediately to my right, serve as the protagonist. he was a resident house skeptic. use the curso parser didn't buyf the arguments we were selling. he was just absolutely persistent in objecting his dissent in a very, very powerful way. and just made us refine our arguments and present our arguments but if it hadn't been for him the book wouldn't read as the dramatic evolution it does. at any rate you should read about because you like the book. it's a fun book. before i go on some of the people who may be watching this all might be thinking, why the heck is there a book about the challenge to obamacare when the child to obamacare failed?

what's the point? we all know the supreme court, we think we know the supreme court upheld the affordable care act source the point of the book that revives all the arguments? the news is and people out there know to many people in the room here already know but out there you may not know is we succeeded actually in our legal arguments in the case, paradoxically. they're always two different issues at stake in this lawsuit. one was to save the country from obamacare, and the second was to save the constitution for the country. by the constitution, i mean the enumerated powers scheme in the constitution that says congress only has limited enumerated powers. both issues were always in play because the arguments being offered by proponents of the affordable care act constitutionality, both the government and its academic enablers were using arguments that would have virtually eliminated the enumerated powers scheme of the constitution. so if we have lost this case in a certain kind of the way we would've not only inflicted this

it reaches and completely misnamed patient protection and affordable care act on the country, but in addition at the same time we would have eliminated the enumerated powers scheme that the supreme court has never repudiated in the history of this country and that would've been a disaster, a constitutional disaster. and that is what we are avoided. we did not seek, we did not succeed in bringing down the entire act, although we weakened it in certain ways that may prove to be important in the future but we did succeed in saving the constitution by giving five votes for various legal positions that most legal academics thought or obviously mistaken. in order to summarize that briefly i'm going to read for bullet points that come out of my remarks in the book itself after what we one in the case. it says, i said, we fought this case to deny the federal government the power to compel citizens to engage in economic activity. on this, we won.

we fought this do to prevent the court from adopting the argument that congress may adopt any means not expressly prohibited when it is regulated in the national economy. on this, we one. we fought this page prevent and end run around the limits on the commas and necessary and proper clause by using the text are instead. on this, we won a partial but significant victory. finally, we fought this case to establish the conditions on federal spending that constitute compulsion on states are unconstitutional as chief justice william rehnquist stayed in his south dakota versus bill. on of this would also when. these were very important points of constitutional law and to the extent constitutional law matters to the decision of the court, then we have established some very good constitutional law in the course of fighting this fight. so in the time i have remaining, i want to basically two points. i want to cover two different things. one is about the judicial philosophy and the other is the

role that politics played in the case. first judicial philosophy, briefly, in part the reason why we ultimately failed to defeat obamacare in court to the extent we did fail to defeat the law itself is part of the wages of crying judicial restraint that judicial conservatives of various political ideology -- ideological stripes have been advocating for many, many years. it started with the political progressives, argued against the supreme court in balloting laws beyond congress' power in the name of judicial restraint, and this was taken up during the warren court by political conservatives. also arguing for judicial restraint. what we now have is a judiciary that has in part been selected and chosen by republican presidents and confirmed by republican cynics who have adhered or claimed to adhere to a philosophy of judicial restraint in which they will defer to what they consider to be the more authentic or accountable branches of government, either congress at

the federal level or state legislatures at the state level. this is been a big mistake. it is been a big mistake but one of the reasons why it was possible for john roberts to save the law by adopting a saving construction, which was not what the law actually said but enough construction or to uphold the law was because he had behind him sort of the impulse of judicial restraint that they put it on the court in the first place, and put other justices on the court and it is almost a miracle that the four justices who also got on the court adhering to various strains of judicial restraint actually realized that at this point is time for judicial engagement, time for the courts to say no to congress, and this was certainly a part of its cost efficiently delegated authority as a separate and coequal branch of government. the courts have to say that measures within congress' power without deferring to congress' judgment, that and that is within congress' power. so it's time i think in this country that we start selecting judges were prepared to do the

job in holding congress to its enumerated powers and less we actually asked them to do that job, they are not going to. the last thing in going to talk about is the role that politics played in this case because certainly he did play a role in this case but in place a role in every major constitutional case. up to now what might be going forward. one of the posts they came out in the book that i posted in response to one of warren's post does one identify three different senses of what it means to say something is unconstitutional because when we use the term constitutional whether this law is or is not constitutional, it's ambiguous. there are three different things we can. first draw we could mean what it is the constitution says, is a consistent with what the constitution says and what the constitution means. that's the old-fashioned way of doing it. that's the archaic way of doing it. that's one way of doing it. in this since there's no question that not only is the individual interest made it

unconstitutional, but the entire act is. the regulation of the insurance companies themselves are unconstitutional, though we didn't challenge that because insurance is not commerce under the original meaning of commerce. commerce as a trade and exchange and movement in transportation of goods and people. so that's the first. what does the constitution say and what does it mean? second, what has the supreme court said in the past and what did it mean when it said that? this is constitutionality according to the president, constitution on it according to what the supreme court has said. that is what we were debating on the blog, whether the supreme court president said that this was unconstitutional, what it said the law is constitutional or somehow unclear allowing us to be a case of first impression which would require lower courts of this up and were not say whether this is constitutional or not consistently with its prior decision. so that's what the constitution says and what the supreme court

has said and what the supreme court meant when it said it. the third sense of constitutionality is are there five votes to strike down a law or to uphold the law? that's the third, are there five votes? when i'm interviewed about what a matter of constitutional or not, that's generally speaking what they want to know about. do you predict it's going to go down or stay up, upheld? unfortunately i think that's the most law professor we are quoted in the press and find if any. they predict it will be upheld, predicted to be struck down but that's a separate sense of constitution of in the first two our and we need to keep these separated in part because i do think it's the case that politics does enter into the third of these three as to whether there are five votes or not five votes to strike, invalidate a law. as i noted early on in this book, and a blog post, those who were confident pritikin to sprinkle whenever invalidate his locker i think we're not taking

into account the politics of the situation. they were assuming that the law once it was passed or after his past would be popular. but what if it was very unpopular? the court are very loath to strike on the popular ball but they're not nearly -- what it on the law was on target, perhaps i say one or both parts of congress live, but a result of this and supposing a series repeal effort was made in the house that got filibustered in the syndicate turn to the republicans didn't take the senate so there was no need to filibuster. they did need to take up the bill at all. how would that affect the willingness to validate this law? i think it did affect the willingness of the. the supreme court is a very main street institution but it always has been and always will be in part because how justices are selected by the president and confirmed by the senate. so there may be some justices who are kind of on the right side of that main street and some justices are somewhat on

the left side of the mainstream. you don't get to be a supreme court justice or even a court of appeals or just a court judge unless you are relatively mainstream and you think mainstream. so it matters what the mainstream is. and this book and the blog post that took place, the blog and it took place in his book as well as what happened well beyond this book when heritage foundation came out with its paper and then there was a c-span debate and then talk radio picked up on this immediately as result of a c-span debate and the circuiting phone calls in my office after that debate was on c-span, asking my opinion about this. once that happened by the time things were filed in march there was an important public awareness of the constitutional questions that are raised by this case. i've never seen anything like it in my lifetime. i don't know that we'll ever see anything like it again with the public is following just court proceedings way before the appellate, the supreme court gets involved. and this politics is to working. this is concluded remarkable me.

we would not have gotten so far, we would've not have gotten five votes for the propositions i just read to you if it hadn't been for the fact that that was a relatively mainstream conclusion for the court to reach, when it reached it. and going forward, there are other constitutional challenges that are still out there, challenges based on interpretation of the statute, whether subsidies, federal subsidies for example, canceled the people who are participating in federal actions as opposed to state exchanges. there's a very important constitutional challenge about how this bill which was a bill to raise revenue originate in the senate rather than the house as the constitution requires it to be, so-called origination clause, challenge that is pending in the d.c. court of appeals. whether these lawsuits have any leaks or not, whether they will get any traction's in the third sense of constitutionality, that is, can you get to five votes will begin an important part on whether obamacare, the transport is popular or unpopular, and

whether the court believes it is actually disrupting or interfering with the public good when it would invalidate it are rather be doing the public a big favor if it were to invalidate this law, since this issue back to congress where it belongs and let's do health care right this time. we need health care reform in this country. it needs to be a good reform. this is not a good reform. i agree with what trevor said. this was what they're doing single-payesingle pair by makine insurance coverage regulated public utility. that's why they bought into because they get a lot of money at it but that's what's happened, and we are seeing the consequences now. and by the way, it's not just what the laws done out of the tunnel, run onto the field. just wait till it starts working the way it's supposed to work, then you will really see the problems with the transport that would put in our brief to the supreme court. >> that includes a look at some of the books about the supreme court that booktv is covered. you can watch all of the programs featured during the past hour, and many other

programs about this up in court on our website, booktv.org. >> you are watching booktv on c-span2 with top nonfiction books and authors every weekend. tv, television for serious readers. .. i think most learning mo