>> for more information about the smithsonian national postal museum and william h. gross stamp gallery, visit their website, postalmuseum.si.edu. you can watch american artifacts online any time. history.span.org/ this is american history tv, all weekend, every weekend on c-span 3. >> coming up next on american history tv, a conversation about the book "the classical liberal constitution: the uncertain quest for limited government." featured are the book's author richard epstein and professor theodore ruger. they debate the ideas put forth in the book about the powers of the federal government outlined in the constitution. this hour and 15 minute program was hosted by the national constitution center and was

moderated by its president, jeffrey rosen. >> welcome to the national constitution center. i am jeffrey rosen, president and ceo. it is so great to welcome you back to the keynote opening event of our blockbuster fall season. the national constitution center is the only institution in america started by congress to disseminate information about the constitution on a nonpartisan basis. and we are about to be transformed by the opening at the end of october of a new gallery displaying one of the 12 surviving original copies of the bill of rights. this is the first time that an original copy of the bill of rights is returning to philadelphia in 200 years. it will be enjoying the new gallery with rare copies of the declaration of independence and the constitution. making us one of the only institutions in america to display these three documents in

one place. this will be the anchor for an incredible forum of debates and panels and podcasts about the bill of rights and i hope you will join us for all of them. i cannot help plugging the ones coming up, including september 17, constitution day. judges from the third circuit court of appeals will come to the sender to speak to kids about what it is like to apply the constitution in their courtrooms. we have a debate with intelligence square about the president's surveillance power to collect data. we have book events on abraham lincoln and george washington and john marshall. we are giving the liberty medal to mulala on the legacy of james madison. on october 27, the opening of the gallery, presided over by justice samuel alito with governor jeb bush. the gallery is being named after president george h.w. bush.

so it is going to be an incredible fall season. i hope you will join us. i could not be more excited than to open this amazing panoply o f discussions on the bill of rights with my friend and colleague and one of the most distinct constitutional theorists i america, -- in america richard epstein. richard's new book, "the classical liberal constitution" is the culmination of a career rethinking constitutional interpretation and making him one of the most distinctive constitutional voices of our time. in our discussion this evening, we will discuss how richard offers a powerful alternative to the conventional theories of constitutional interpretation, namely conservative original is -- originalism and progressive living constitutionalism. he calls it the classical liberal constitution and it will

be thrilling to examine the power of his ideas. we could not be better served as an interlocutor than my friend and neighbor ted ruger. ted is a professor of law at penn law school. he has written on the application of judicial authority. he has written about american legal institutions under the supreme court and health care law. a topic about which richard writes. therefore, we're going to have a great conversation. we have so much to discuss. i'm going to jump in about one of the most striking of your claims, which you make throughout the book, but in

particular in the conclusion. you say the central message of the classical liberal constitution is to go against the grain of modern supreme court jurisprudence. much of the legal scholarship that has grown around that body of work. you say repeatedly that conservative originalists have moved too far in embracing judicial restraint. you question the deference that conservative justices and theorists show to democratic legislatures and call for a measure of principle judicial activism. tell us more. >> one of the things you have to deal with in constitutional law is to sometimes accept the proposition that the obvious proposition is the truth. when you look at various kinds of constitutional provisions, particular those contained in the bill of rights, many of them were drafted in broad terms. congress shall make no laws abridging the freedom of speech. nor should private property be taken without just compensation. the only way you can understand words like freedom and private property is to be able to figure out how they are used as a matter of political theory in a matter of common law. and private copy, for example, is an all embracing notion.

so to say that you believe in the fidelity of the text and narrow interpretation essentially puts the two ideas into tension with one another. you're not loyal to text if you read it narrowly when the text is broad. what you have to do is figure out what it is that you do in order to keep the broad reading. this creates a real problem in constitutional interpretation because one of the things that is wrong with the original muslim, -- the originalism, associated with justice scalia, is that often he thinks that the text itself contains it. going back to roman times, one of my heirs of academic -- my deep areas of academic involvement was i am the last living american roman law professor. is that the roman interpretation strategies took provisions like this and they said, you know, we realize they are not self-contained. that if we have prohibition against taking private property, we had better have a prohibition against blowing it up, even

though it may not take the pieces. and that leads to the condemnation. it means you can never take private property, even when someone has a gun at your head. you can take private property. how do you measure compensation? so there's this whole elaborate body of non-textual stuff that has to be read in. that stuff especially ghost -- goes additionally under the name of the police power. where every major constitutional prohibition is subject to exceptions to health, safety, morals and general welfare. you have to explicate all of those terms as well. so the project becomes extremely hard. there is one further difficulty. unfortunately interpretation is a human activity, many times it is done by people who do not quite get it right. what you then have to do is if you go on the first wrong step, you keep going down that path. do you try to correct it? in many cases, the thing to do

is to ratify earlier errors on the grounds that they help the constitution survive. to give you two frustrations, illustrations the general rules on judicial review that is can the supreme court overrule statutes of congress? and general review on judicial review over the states. it seems pretty clear that it could do neither of those two things. we cannot run america that way. in addition to being able to go beyond the text in a static sense, you have to be able to incorporate the prescriptive constitution. those changes that have become so ingrained in the american fabric that it becomes impossible to get rid of them just the way we look at land law, there is a theory of adverse possession which says -- stop things that are wrong and turn them into rights. >> ted said a bunch of important things. namely that conservatives are wrong to be pure rationalist.

justice scalia says that richard is wrong. he also says liberals are wrong to be progressives and try to read in all these new welfare rights that are bad for the country and not justified by the constitution. is he offering a political theory? he believes the classical liberalism embodied by john locke and montesquieu and john stuart mill is the right answer and he wants to read that into the constitution? do you agree? >> i would say to your two questions, yes and no. i should say i am happy to be here. i do love the book. it is worth reading. it is provocative. i agree with much of it it. i do disagree with something. i applaud richard's totally well-founded critique of a kind of precious original intent or original meaning originalism that has become more prevalent

in the law academies as i've been teaching. there has been a renaissance. i think it is wrongheaded, very much for the reasons richard stated, trying to fix some of these vague words -- intentional vague words -- the constitution used. i applaud richard's candor at bringing in this clear vision of classical liberalism. i think he lays his cards on the table. it is a powerful vision. it's a vision which i think, even as somebody who considers himself a progressive, i agree with many parts of this kind of liberty protecting vision. so this leads me to a few inconsistent quibbles or more than quibbles. i am reminded that there is an old parable about incoherent critiques or incoherent

arguments, which is the story about the borrowed kettle. my neighbor comes to me and says, look, you borrowed my tea kettle and see this crack. you did that. i say, no. i did not. i have got three reasons. when i borrowed the kettle, it had the crack. when i gave it back to you, it was in perfect condition. third, what teakettle? i have never seen that. that is my approach to the book. on the one hand, i want to say that the starting point about the constitutional framing in 1787 is over stated and one-sided in richard's telling. we are not meeting in york, pennsylvania. why? we can be happy we are meeting

in philadelphia. well, york is where the articles of confederation were drafted. they did not work, which is why the framers came back to philadelphia in 1787. if you read madison and hamilton quite consciously wanted to draft a stronger document with a stronger national government. and madison in federalist 51 says, this is -- the great difficulty lies in this. you must first enable the government to control the governed. and oblige it to control itself. and i think the other framers recognized the duality. and hamilton wrote about empowering the national government with force and vigor. i think richard's book emphasizes the latter concern, which remains valid about make sure the government controls itself and maybe deemphasizes the notion that we needed to come back to philadelphia to

have a national government that actually did have some force. just more quickly, i don't want to -- i would rather hear richard. my other inconsistent reactions are that richard's framing is right historically. you can make a argument that the original constitution and the first century or more did embody classic liberal libertarian values but that we change as the country in the 20th century in -- but that we changed as a country in the 20th century in ways it is appropriate to adopt in our constitutional tradition. the myriad ways in which our culture is different today than they were over 200 years ago is an acceptable form that we can rethink and revise our fundamental understanding of the role of government. and we do have the hardest

constitution to amend in the world vis-a-vis its text. which means that constitutional change often has to happen outside the text. if we do have a constitutional vision today that is different from the original, i think that is entirely appropriate and is the pathway of change that the framers who wrote "we the people" might have envisioned. finally, and we can return to this, we all share certain liberty protecting and libertarian impulses. in that extent, i agree with everything he says in the book about the importance of our founding documents and protecting them. where i come out differently, is i think that viewing liberally broadly construed to include not merely economic liberty but also religious belief, the reproductive freedom, marital choices, a host of other things,

we may be at a high water mark of liberty viewed over a 200 year cycle, not a declining asset as the book suggests. >> so richard, i want you to respond to ted's critique. he said that the framers took a more expansive vision of national power. the government had expanded so much that your classical liberal constitution would require striking down much of what the government actually does today. what precisely would have to go if your vision were adopted? >> first of all, let me explain with the vision is and tell me what stays and what goes. i think there is confusion as to what ted said. first of all, the phrase that i use was that whenever you look at the text, you had to figure out the various embellishments of it, the circumvention, the justification, choice of remedies. i did not say the text was vague.

the word private property does not mean exclusive possession. it has always meant exclusive possession plus use plus the powers of disposition. the word congress, when used in the constitution, has never met manufacture -- never meant manufacture. it has meant trade of goods. when you start to read these things today, what you do if you -- when you start to read these things as vague, what you do if you can narrow the definition of property which is much too much power to shift wealth back and forth or politics. and you can expand the scope of the federal government which is disastrous because it allows you to create nationwide cartels. the second point which relates to the first of these concerns are not concerned that does appear as you move into the 20th century. adam smith wrote a treatise about the dangers of mercantilism. and it turns out that those kinds of dangers apply every bit as much today as they did then. there is nothing about the antitrust laws that treats

cartels as a violation, which has changed over 200 years. and what the expanded reading of the congress clause has done is to create a situation now in which agriculture, labor, motor vehicle, the whole system of cartels is there. the great rap against progressivism is the cartel manufacturing machine, which is indefensible. trade circumstances do not alter this. transportation and communication are better today. there is less need the national regulation that there was in 1789, because the movement of goods across state boundaries is what disciplined local monopolies. the perception that congress could keep the arteries of transportation and communication open and does not do anything else is more powerful today than it was in 1789. ted referred to the situation associated with the articles of confederation. he's right. but understand what the remedies

were. the difficulties they were trying to address. the articles of confederation did not have a president. i looked at the constitution and it says we have a president, and we do not have two. that is clear. although sometimes we wish we could have a substitute. it turns out we have no central judicial power. it turns out now that we have essential judicial power. it turns out we did not have the power to tax or raise money by debt. article i says that congress has the power to tax and it shall be used to pay the debt to provide for the common defense and to provide for the general welfare of the united states. this is much broader than no power. but the recent decision, in 1937, said this is broad power. paying debt means paying public debt. either you fund it collectively

or it will fail. and the general welfare of the united states does not mean the welfare of individual citizens. it met the collective welfare of the nation so that the whole point was to say that congress could not take transfer payments from one individual to the other. you say, where'd you get this from? a, it comes from the text. b, every single interpretation of the constitution through 1920 took this point of view, that factional struggles could be limited only by putting limits on the tax. so now, do we have a changed world? we do. but it turns out that none of the new deal reforms which expand federal power or weaken property rights in fact get you to a better place. that is what i want to make very clear.

when i tie this back to classical liberal theory, the text supports it. i do not think anyone would want to deny that. but it turns out that none of the new deal reforms which expand federal power or weaken property rights in fact get you to a better place. that is what i want to make very clear. it is not one that comes and goes. and the indeterminacy that you have from political conflict, the short-term taxes, the special taxes, all of those things essentially what they do is they secure the gangs to factions. special groups who tie their -- whose private interest is against the public interest at large. classical liberalism is not a theory that the individuals glorify to the extent that he deviates from the world. it's a theory which says you want to so structure human institutions so that whenever anybody asked within the rules, the only way which he can prove

himself as to improve social welfare. so there is a direct connection between classical liberalism and modern social welfare theory. there is no connection between modern progressivism which drives you towards monopoly, the antithesis of that. >> much of his response focused on the commerce clause and the limits of congress's power, in the most controversial parts of his theory have been the claim that if it were by then most of -- that if it were applied, then most of the post-new deal administrator state would be struck down. richard says only justice thomas embraces his limited view of the commerce clause and criticizes the other conservatives for not doing so. what would happen, first of all, if richard's view were adopted and tell us about the affordable care act case? in which all five conservative justices did adopt a limited clause?

>> i will answer the last question first. i think it is a testament to richard's -- when we righted the history of of thete the history affordable care act cases and the commerce clause jurisprudence we can discern -- richard epstein's influence and -- in what i view as a new commerce clause rule, reduction of the scope of the commerce clause. you also ask is this what richard wanted? i think the answer is no. they did not go near far enough. they made, as you may know, they said the individual mandate which would have made people pay a penalty, which does make people pay a tax penalty if they do not prove insurance, could not be justified under the commerce clause because according to john roberts this would compel somebody to act. thus it regulated in action as -- inaction as opposed to

action. they kept all of the post-new deal 20th century law on the books. but added a new requirement that government can only require action, not inaction. i think the restraining national authority was important to for the five majority justices. i guess, one thought i have often had and i think is understated in your book is the notion of political restraints on government power. you cast the government as rapacious and relentless in its desire to regulate and over regulate. indeed, sometimes it is, but let's take an example from the case which would, dealt with something that we love. some hate. broccoli. the government was made that -- the argument was made that if the government can force you to buy insurance, you can force you

to eat broccoli. that came up in oral argument. we know after the supreme court opinion that the federal government, congress cannot force you to eat broccoli. or buy it. but there are 50 government, more if you count d.c., they could enact broccoli requirements. there is a lot of science that would pass the rational basis test. we have zero broccoli. i am talking about state governments. which are not restrained by commerce clause restrictions. we do not have mandates or anything like it. we have to ask ourselves, if we have this conception of a government which will always regulate to the maximum of its constitutional power, why do we not have any broccoli mandates? i think the answer is that in our bicameral separation of powers, in our two-party system that in the natural ability of americans imperfectly to

influence their legislators and say, stop, you're going too far. >> why don't we have broccoli mandates, and would these mandates be unconstitutional? >> one of the things i wanted to make clear is i thought that the argument about broccoli was one of the dumbest arguments advanced in history of western civilization. let me see if i can give you a better argument to explain why i'm concerned about overreach. the key decision that drove the commerce clause analysis was a case decided in 1942. in which it was said the united states power to regulate commerce among the states included the ability of commerce to regulate the amount of grain fed to cows. now, if you just do this as a textual matter, i can remember what my wife told me. will you stop teasing me? i am not that stupid to believe that this means that.

of course, what she didn't understand, and i did not explain, is that there is a perfectly sensible reason for the new dealers. why they had to do this. what happened was that they wanted to keep the price of grain high. they said you cannot sell it in interstate commerce. they sold it in domestic commerce. that killed the cartel. when they did is they say you cannot do it that way. what they did is they integrated. the farmers bought the cow fields so they did not have to sell anything. it was an effort to make sure that 20% of the grain consumed in the u.s. could be subject to regulation. it is not a stupid thing for them to want to do, but if you want to fund one program which you want to immediately terminate, it would be agricultural subsidies. ted, i think, agrees with that. what they did because of justice

jackson is that he allow these -- he allowed these things to go forward. so that is what keeps obamacare alive. what i wanted to do was to get rid of wickett and filburn. the little pieces made no sense. the question is, is congress always rapacious? of course not. one of the sad things is many good statutes would be struck down when people do not understand why they are put into play. so it is not that. it is just that you want to get rid of the cartel facilitation that takes place when you are dealing with this. justice roberts opinion is an intellectual blunder of the first order. now, not because he gets the commerce clause wrong, which he does. but the key thing to understand about the earlier presidents, including cases he cited, were that you could not use the commerce clause where you use the taxing power. it's a legal document called

these two documents are basically the same stuff and it turns out if you go back and you look at these various type situations, if you now decide you cannot regulate it under the commerce clause, then the tax clause has to follow. now, this was developed 100 years ago. 90 years ago. something called the child labor tax case. in the pre-new deal constitution, in 1918, the supreme court in a case struck down a statute which said you could not ship an interstate commerce any goods made by any factory which at any point in its operation had violated a child labor law. justice day, one of the smarter conservatives, said this is tantamount to a direct regulation of local production which is illegal. i'm not going to tolerate it. he was right about that, because

you gain a few dollars from using child labor, but you lose a fortune if you cannot sell your goods into the national markets. so the collective effect of this -- three years later, congress never quits. this is bad, congress. they put a prohibitive tax on the same goods. now you cannot sell them into interstate commerce because the tax will kill you. they struck that down. you may expand the commerce clause after 1937, but you never got rid of the power. -- the parallelism. justice roberts missed that fundamental structure. you never want to have a situation when two things which are close substitutes, direct regulation and taxation, are subject to different legal regimes. the earlier guys got that right. if he had gotten that right, we he would've had to come out the opposite way. it may sound like a technical point, but it is very different from broccoli. in fact, the worst enemy of a good classical liberal theory is some kind of ingenious

conservative argument that starts to take these silly examples and treating them as though they have textual -- structural significance. >> richard is not shy about telling us his opinion, but i want to drill down on the consequences of his theory. he is not shy in the book. he suggests that proper application of the classical liberal constitution might cause problems with the safety laws, health laws, environmental laws. other administrative agencies. spell out what you believe the consequences would be, what would have to be struck down. and then we will let richard respond. >> i think you have pointed the way there, jeff, which is that the vast majority of federal agencies that regulate public health, health, safety, traffic conditions, etc. are based on

this -- i should say traffic, airlines, perhaps that would be -- i think we could be, richard and i would agree that we save those. >> the tsa is ok. >> the epa would be gone. >> no. complicated. >> i want to hear what would be left of the epa. agencies like osha and workplace safety agencies. probably the nlrb is gone. but what is interesting, i mean -- labor is almost gone even without the constitutional -- i mean union rates in the workforce are at almost a long -- are at a 40 or 50 year low without constitutional change. your claim about cartels in that context is overstated. lots of these agricultural price regulations i think would be gone. i am certainly not here to

defend the wisdom of the agricultural policy, although i will defend the constitutionality of those things. and interestingly, and i guess it was a question. i will make an assertion. i am not sure, richard, that you would say that major programs like medicare and social security, the kind of tax-and-spend programs, are those still ok? those are not typically justified under the commerce power. >> but they do not meet the taxing standard i set out. >> ok. i think that some people that subscribe to your views on the commerce clause would save medicare and social security under the tax-and-spend power. >> yes, but let me answer this in the following way. it is one thing to deal with these things that have been established and in place for 50 years, and you are trying to uproot them. where i think it is dangerous that you do so. and i talked about this in my book some 30 years ago, i said you cannot do these things

because retroactivity, vested property rights, are very important. if you want to amend a program you cannot do it in a set of , circumstances when there are a lot of people -- you struck down medicare, there are people with no source of income. that would be a giant mistake. the problem about the transformation is very different than what the original validation of these programs were. one of the reasons why it for obamacare i would want to fight so hard is that this thing will turn out, as it is turning out to be, something of a systematic calamity. but once you get into that, it -- the retroactivity settled interest rule calms, and makes it much more difficult for people like myself to come forward. so you have to understand that this is not a program of short-term political action. it is basically an effort to, when you introduce these programs for the first time, to see if you need them. and if you never had medicare, what would the world start to look like? that is a fair question.

it would look very different. there might be state programs, which would be constitutional. i do not think that they would last well because of the move of -- movement of people back and forth across state lines. things like the indiana program which is far better than the federal statutes would survive. i am not trying to fight all of those things off. but the key feature is that what you would see is a much richer development of private programs that do exactly this problem. to give you the historical situation, 1935, look at the life expectancy, people are starting to live to 65. life expectancy, 1930, 61. they start to make it. so companies like general motors and say that we are going to start having retirement packages for our employees. social security comes in, these packages are basically made supplemental or they disappear. and so the key feature is that you are edging out the things that would've done a better job.

would not have created the kind of systematic public debt that you have. and would not have this terrible problem that you cannot reverse them. with social security, just to raise the age by one year is -- which might even bring the system back into power, is something that is beyond the collective consciousness of congress to be able to do. so we put these things into place and we cannot right them because the vested interests are so strong. take the labor case. i think ted is clearly wrong, and let me explain to you two or three reasons why. first of all, the number of people in public universities is -- public pensions is quite large. they are a prescription for disaster. it is not exclusively a union problem. you could bankrupt california. this is all labor, because it is now perfectly ok to make legislature.

mandatoryeate authorizations for public unions to beat up the government with non-budget or budget devices that get that way. private unions are only 6% of the people. of firms.over a lot what else do they do? they make sure that you will not get a walmart coming into new york city. the union opposition would be there. they try everything to stop imports of cheap goods which go into competition for american services. and the real danger of unions today is not, in my view, in the way in which they operate. -- operate at the bargaining table. there is no monopoly risk for them to capture, so the straight -- strike alternative, i think we both agree is way down. , it is what they do in the political arena, both domestically and in foreign affairs, that seems a serious issue. what else would it go and what else would stay? let me make the following remark. if the government wants to regulate airplanes and railroads, there is not a problem with that.

unless there is some individual gaming around it, which is not as serious. if you want to do it on local bus companies, you can't do that under my theory. in fact, one of the things i urge you to do is to look at every transportation power you can name and tell me whether you think there is any difficulty in deciding whether it is an interstate carrier or a local carrier. there are no cases that you do -- that give you any serious problem on that particular stuff. other things, the national labor relations act, it would disappear from manufacturing. ted mentioned that some of the 50 states could regulate, and he is certainly right because you do not have a commerce cause problem. but there is the following interesting feature. there is a clause in the 14th amendment having to do with privileges or immunities. the way the 14th amendment is structured, the first clause of gives citizenship to everybody born in the united

states. this overrules dredd scott. so all freed slaves are citizens. the next provision is for all citizens, states shall neither make nor enforce any role that abridges the privileges or immunities of the citizens of the several states. o'er the united states. this was meant to be a huge limitation on what states could do. and it got read out of the constitution in 1862. i think those restrictions still ought to apply. and it is the right system. what happens is, the states get to experiment but if they start , to engage in confiscatory legislation, there is a federal check. and that eventually took place through the takings clause and incorporation. so you get a smaller government, but it is a smarter government. and in the end, by using the local powers on local issues, the key constraint, and i will end on this point, is that competition between states on tax levels and regulatory levels is, in fact, a very powerful political check, because when corporations and individuals decide where to locate, look at

the map right now. states with right to work laws get net immigration and states without lose it. it is an illustration of how this competitive federalism can work. >> richard hanna said a lot, and we are going to a lot of material. he said that if you had the broccoli laws that would violate the constitution. in making this argument, he calls into question the tradition that conservatism brings for much of the 20th century, which is that it was bad when the supreme court struck down economic legislation. bookrd and his -- ends his by sharply criticizing a progressive hero, oliver wendell holmes, and the most famous dissent of the 20th century. this case involved the court striking down maximum hours laws

for bakers. notaid the constitution was with whack -- was not -- >> was not enacted to protect social status. >> that is good, you can do it by heart. >> it was not intended to -- >> the organic relationship of the individual. what you said. >> i can read it. it is right here. he committed a constitutional blunder of epic proportions when he claims the constitution was not intended to embody a particular economic theory. you say no constitution could not hope to survive if it was not driven by a theory. this is heresy to progressives. everything that we were taught in a law school, all the conservative justices have all equated lochner with roe versus wade. how radical is a suggestion to try and resurrect this case, the lochner case, and to get courts back in the business of second-guessing economic law?

>> it is doubly radical because it is radical prescriptively and intellectually. arthur has explained its radical mess -- radicalness. it is also radical institutionally in the fact that it would radically increase judges' power over our lives and retroactivelyto scrutinize legislation. you can read the holmes quote two ways. one is a rejection of a certain laissez-faire, a cartoonish laissez-faire ideology read into things. but you can also read holmes -- this in connection with his other writings as a rejection of judges scrutinizing using their own substantive values. holding a lens up. this book does a masterful job of holding up cases to the masterful general theory that

richard offers. but you cannot judge all of the cases, richard. so this is both a critique in a a question, in the sense, are you comfortable with federal judges who are appointed through a political process scrutinizing, or state judges scrutinizing, each piece of legislation to see whether it meets your conception of the social benefit? how are they going to do that? >> it turns out we do that anyhow. let me mention, before we talk about lochner, there is another abrams,omes dissent, in where he starts to talk about the need to allow people to speak and how the first amendment protects them from government regulation unless there is clear and present danger. because it turns out that the

best test of an idea's truth is its ability to be accepted by the marketplace. when they look at cases these , guys slice the salami very thin. the burden of proof in a defamation case is a matter of constitutional interpretation. when you have a statute that says it is inappropriate to imprison some kind of a war hero, what the supreme court will do is strike it down because of its own empirical estimation of how it active -- effective it is as a constitutional matter. my objection to those cases is not that they do the scrutiny but that they do not do it right. why don't they do it right? because they do not have the theory. for the classical liberal, the theory is that we know what counts as a standard wrong. we can set the ends and we can choose the means to minimize error. the ends are force, fraud, and monopoly, and minor things. federal government, dealing with infancy, insanity, guardianship, and so on. if you keep yourself to the right ends, you will not make mistakes. on the means aside, what you say is that we worry about

overextension or underextension of the rules, two kinds of error. when the supreme court does the strict scrutiny in the speech cases, that is what it is doing. go too far? this does it not go far enough? the holmes opinion is silly. you have here an opinion about the protection of life, liberty, and property. holmes's definition of liberty in this case is so narrow that it only means the ability to escape imprisonment. liberty of speech, liberty of contact, liberty of conscience liberty of thought are not a , part of the holmesian universe. this is simply nuts and he abandons it later on. he is reading the term. he gets the arguments wrong. he says, this is just a shibboleth you are doing. but remember what the context

was. lochner was a statue supported by union workers that wanted to keep alien workers out of the marketplace. -- alien workers for a german plant out of the marketplace. the german workers, they worked 16 hour days, and it sounds terrible. you read the statue, you see section nine, which is upheld, not section 10, it says that you have to have ventilation on the sleeping quarters. that should tell you what is going on here. the reason these guys worked 16 hours is because they worked four hours or five, they were sleeping on the job and that counted as work. the union workers essentially worked two separate shifts with two separate groups of men. with justice peckham, who was right on this issue, who was a real hawk on antitrust laws, he was no patsy. he looks at the situation and he says all this is designed to do is not to protect the health of the workers. none of them are complaining. this is a criminal prosecution, for heaven's sake.

it is designed to protect union workers from nonunion competitors. that is what he said. now who agreed with him? "the new york times," said this . not the new york times of 2014, but of 1905. "the new york times," said this is a victory for free labor over union labor. they understood perfectly what was going on. it is clear this is not a standard safety law. this was not about toxic substances in the workplace. and indeed every single justice who voted on lochner to strike it down supported workmen's compensation. which was designed to deal with the other stuff. they did draw a principled line. what happens is that the modern critics of lochner, they are coming along like felix frankfurter, who understood nothing about the dynamics of labor. he was such a passionate defender of collective bargaining arrangements, monopolistic though they were,

that he thought the line between health on the one hand and labor regulations dealing with competition on the other was not worth drawing. but he never answered the question as to whether or not people can actually draw it and , he was wrong on that. because the cartel formation you get through unions is a distortion when protected by the states. the old lochner stuff -- pekham, 10 years before, upheld aggressive enforcement of the antitrust laws against various forms of cartels. he was essentially consistent. he used to the antitrust laws to control them. when they came to the issue of regulations of monopolies, the 19th century judges were more accurate on how this was to be done than the 20th century judges. was in they knew what the case, and everything else. so it is not a question of could they do it in this hypothetical way. they did do it.

it is throwing away an inheritance that actually worked. the growth levels that are the 20thrst half of century are unmatched. it is all because roosevelt's new deal and a bunch of judges like felix, who do not know what is a source of political intrigue and what is a source of protection. it is amazing the level of ignorance that was brought to these things by progressives who found all sorts of exclusives for cartelization and overlooks -- always overlooked the dominant anti-productive effects. >> we have phenomenal questions, audience,ncredible but i want ted to respond to the extremely interesting note on which richard ended. this is not only a constitutional argument, it is a policy argument. he says that the progressive policies are terrible for the country. and he ends the book by saying that the motivation should be apparent by the disarray that affects every area of american life. decline in the standard level of living battles over debt,

, uncertainty over the tax structure. the courts have to save the country. richard had a notable debate with scalia. the cato debate, 1984. scalia defends a traditional conservative position of judicial restraint. said the court should defer to democratic legislatures because otherwise they will be doing to -- the stuff we used to criticize liberals were doing in the 1960's, imposing their own policy preferences on the nation. richard tears up his speech and says that that is wrong. conservatives have to abandon their allegiance to judicial restraint and embrace activism. and he has just told us that just theneed is not text and the history, but a big theory, and his is classical liberalism. is he the mirror image of the liberal activists that conservatives have long criticized, from robert dworkin to chief justice earl warren? >> i commended a theoretical

coherence and vision which is often lacking in constitutional arguments. i do think it does make me think about dworkin, ronald dworkin is famous for the phrase judge as hercules or the so-called robust herculean jurisprudence. richard i think you are asking , for a similarly herculean task for our judges, to scrutinize every law. >> actually, i regard dworkin as a piker. i will tell you what. >> i'm not saying you agree with him. i am saying your model is resonant with him. >> in the following sense. he believes in hercules, i believe in hercules squared. [laughter] let me see if i can explain. >> so you are going further than dworkin. >> because ronald dworkin, gifted as he was, had only a single theme dealing with it all concern and respect, which he thought translated into various kinds of positive spot. he did not have a systematic

clause,f the commerce separation of powers, all the other things. his domain was theoretically rich but it was confined. mine has no such constraints, it is a theory of the world. >> ok. >> it might be wrong, but it is more ambitious. >> i think you are alike in that you and dworkin both would put us in a government by judiciary. >> no, absolutely not. justet me explain why, very briefly, with the distribution of authority. with taxation. there is no question i have very strong views on what is permissible. but i think the government can set a general revenue. i am a violently opposed to indeterminate progressive taxes. but it is no business of the courts to determine what the flat level should be. no business of the courts to determine what the revenue levels are. those are powerful political decisions. why do i care so much about this? the illustration i mentioned to ted before we came in here was the medical device taxes that were put in as a part of obamacare. i think that all special taxes

on particular goods are asking for trouble. and that one is about to decimate an industry. and the reason you want a -- you want to do it through a general tax is that you cannot raise it with popular support. that is very strong evidence that the people do not want it. if you can dump liabilities on your enemy, or in this case the pharmaceutical folks putting it on the device manufacturers, that is an open invitation for disaster. let's get to environmental regulation as a global problem. interstate pollution and so forth. i agree that it is something for which it is kind of tricky to figure out how to do constitutionally because it was never an issue that was worried about in their. my view is that you can have the government set the effluent standards for any pollutant you want to make. but what it cannot do is pick

which guys are going to be troubled and which are not. it is completely unconstitutional, but it has also proved to be a complete disaster. you figure out how serious pollution is, tax every unit of pollution the same way. rid of the political intrigue and keep the environmental protection. take patent law. you can set a patent for a limited term. does not tell you what the term ought to be. you can go through all of the stuff and what happens is that the judiciary through the classical liberal constitution imposes a single dominant constraint, which is designed to control faction, and therefore direct the power of the state to control substantive ills that need direction. and every single -- this is a theory of everything. one of the things -- i should tell you that i do not teach constitutional law. most people kind of, sort of do. but i do teach all of these other fields, environmental law, antitrust law, federal

regulation. and when i see the shipwrecks that emerge in these areas, by your standards of social welfare, and then i look back, it is the weak system of a jurisdictional controls and property rights, which essentially gives way to these kinds of factional influences. >> richard's answer is a strong judicial role but not an overweaning one. judicial supremacy. but there are plenty of parts of the book that deviate from conservative orthodoxy, including powerful criticisms of the supreme court on the second amendment, which you say misunderstand -- you say he is wrong. the central purpose is to keep the federal government from dictating gun-control laws to the states. it does not even apply to the district of columbia. but i want to go through these great questions. our town hall audience is so smart that we want to get through as many of these as possible.

here we go. who is your favorite or model supreme court justice? >> i will mention somebody, if you have heard of him raise your hand. i suspect nobody will. a man called pitney. [laughter] >> never heard of him. tell us why. >> he was the most consistent classical liberal supreme court justice. what is his great achievement? and so forth. well, one thing, he sort of understood the logic of freedom of contract in a way that holmes and others did not. understood that it was a

mutual gains proposition. he understood that if you made it impossible to have a voluntary contracts it would be in enormous impediment against the people of limited means to rise up. his opinion was in a case. when it came to water rights, he was the only supreme court justice who understood the connection between water rights as a probable matter and a government matter. why is this important? if you look at the way that water organizes, there are powerful rules indicate the limit that somebody can dam a border at the top to destroy. if you teach water rules, these are very accurately done. pitney understands and says that the federal government can't pretend these rights don't exist. justice wrote a , case called willow river. what he says is that we do not understand property rights, just because you lost something economically does not mean that you have been hurt. but he does not understand that there is a deep and powerful structural water law, and he just wrecks it.

he gives the state complete discretion. pitney would never do that. he had been a state justice. the state water law gets you to one of the worst decisions ever. he does those kinds of things.

he was a whiz on intellectual property. his case that i will be teaching tomorrow, he outperformed oliver wendell holmes. he is just smarter than they are in terms of the way in which he thinks. he only served for 10 years, but he had a very clear conception of the role of government which was born of a deep experience as a state law judge with an uncommon theoretical head. he was not a reactionary. he upheld the constitutionality of the workmen's compensation law. he got the right balance. he made mistakes on technical questions, but unlike brandeis, who could go off the reservation and get things completely whacked up, and holmes was good at things like antitrust law but was much to spectacle -- much too skeptical on other things, he did not suffer from that. this is not a conventional choice but this is not a conventional book. >> we need a pitney exhibit, although i need to put in a word on my hero, brandeis. when we have a hard question, we what would brandeis do? i need to ask, on the current court, very quickly, isaac you say in the book your favorite justice is justice thomas. >> i do not have favorite judges is i think what i said. you have to understand, one of the first rules of being a successful academic is to have

no friends. and i have managed to achieve that result in writing this particular book, at least among current justices. [laughter] sort of wild situation. what it is -- i agree with particular opinions of particular justices, but do not line up powerfully with the way in which the judges themselves divide politically. so for example in the chapter , where i take on justice scalia for what i think is a misreading of the second amendment, because he gets rid of the first 14 words. a well regulated militia being necessary for the security of a free state. that doesn't exist anymore. i happen to know something about the militia cause because i worked with the national guard. i actually understood it does not disappear. the second terrible opinion is by justice hagan, my former -- justice elena kagan my former , colleague, on cruel and unusual punishment. and has rid of the "s" this wild intervention. you look at cruel and unusual

andshment without the "s" it turns out that you cannot punish with life imprisonment this crime or with death this crime. that is the worst kind of intervention that you have, and the text does not support it. it is a prohibition on certain kinds of torture. it is not the relationship between the punishment on the one hand and the crime on the other. and you know it because when they quote it they drop the "s" off most of the time. they are interpreting a clause that is not there. interpret myself as a bipartisan scourge. you cannot let yourself be aligned with a political party. the reason i call this a third way is, you spend an equal amount of time attacking both sides. >> your favorite justice? pitney? >> pitney was at the tip of my tongue.

i will be very conventional. unlike richard, i am very conventional. my favorite justice is john marshall. >> that is good enough. >> i clerked. my favorite current justice i had the chance to clerk for is justice breyer. john marshall did more than pitney, obviously. he was therefore a longer time. and he was a great edge. he was also a kind of fast stepper, and i do not like fast stepping. my favorite opinion by justice gibbons, which sets out a perfectly comprehensive view of the commerce clause. to give you an idea of how bad it goes, this is what i do not like about judicial interpretation. full things,uote so they change the words. one example is, chief justice marshall says, comprehensive as

the word commerce is, it is restricted to commerce that involves more states. by the time it is done, the first clause disappears and we are told commerce are those things that affect more states than one. words are simply removed from the quote. why is this important? in 1884.iting if you change the view, you mean the federal government could have abolished slavery. i am in favor of that as a constitutional matter, but there had to be a compromise over slavery, and one of the pieces of that was federal jurisdiction. i think you agree with this in terms of how they did it. the irony is, once slavery is gone and you have that structure remain, it is really powerful. it gets local state regulation states, andters in lets the federal government keep the network against state

organization, which is the right constitutional structure in 1787. >> a few more questions. what is your view of citizens united based on your constitutional vision? is, in mys united view, a very easy case. opinion is quite strong. let me see if i can state the way this starts. congress shall make no law abridging the freedom of speech. this is actually a federal regulation. a perfectly general proposition under these circumstances and does not identify who are the speakers. the question then is, corporations are said to be artificial beings, and therefore they can be subject to regulation. but there are two powerful things. one is that the creation of a corporation is done by the state . it is not done by the federal government. the question now is, why is it the federal government can regulate corporate speech in a

particular way, when it is the states that have the power over incorporation? the second thing one has to do is a doctrine known as unconstitutional provision, -- unconstitutional condition, meaning they may not do something, but cannot prohibit on certain activities. they cannot say that you can use highways that you have to waive your right against search and seizure. essentially any time the state has a monopoly power, there is a quid pro quo in the classical liberal theory as to the conditions it can impose. i brought a book called "bargain with the state" which has nauseating detail on all of these kinds of permutations. and asking people to suppress the right to speak because they have limited liability against contract and tort claims is crazy. a condition that is perfectly acceptable is one which says, we are not holding you responsible for torts, but we are going to require you to get insurance if you want to run this nuclear power plant. that would be an illustration on the other side.

the third point to make is that this is just a question of whether or not you can stop pre-election speaking within 30 days of the election, 90 days, depending on what it is. this is core political speech, as far as i am concerned. the idea that you can block that because corporations do bad things, it is crazy. citizens united isn't the real corporation. it is a political organization. they do not make anything. the idea that a partnership can put that out without restrictions and a corporation cannot is crazy. real corporations have views. they run for cover. i have worked with these guys. the first thing they do when they see citizens united is that they say that they are taking a vow of silence. we do not want to have to speak out for gay rights, against gay rights, for pollution, against illusion. we are trying to sell beer. the guy who runs a whole foods is a libertarian who campaigned

one day against obamacare, and had a massive boycott on his hands within 48 hours. people who have to sell to consumer markets are the most pusillanimous people on the face of the global when it comes to making political statements. and so it is a nonproblem that you are worrying about. bribery, other kinds of stuff is already regulated by existing laws that nobody does. i think that this is just wildly overstated in terms of a serious issue. and i have to say that the justice stevens opinion, i admire his dissent, great dissent. i thought his dissent in this case was dreadful beyond words. >> a response on citizens united. and then we are going to -- >> i think i could, if we have more questions -- >> one more question and then we will close. let's keep this -- the question asks, were the country to recognize the need for a

classical liberal constitution, yet also want to keep most of the current federal government, how would you frame an amendment to accomplish that? give us the amendment. it is a great question. >> you want to lock in all the existing institutions but not go further? >> just draft it. >> i do not know what to achieve, so it is very difficult. if i want to draft the classical liberal constitution, the question is how what i do that -- how it is i would do that today. i would have an amendment in several parts. and what i would try to do is pick the three or four things that i think are the biggest weaknesses in this area. and say, do not do it. i would have a clause that says that commerce shall not include manufacturing, agriculture, mining, and so forth. and i would say that property includes the protection of not only the exclusive rights but the right to use, disclose, and -- dispose, and so forth, within the limits of the common law.

i would introduce a doctrine of unconstitutional conditions which says that the government may condition the various exercise of constitutional rights only on those things which, if they occur, they can block under the definition of the police power. which appears in the fourth section which essentially leaves , it to the three things that i talked about before, nuisance on the one hand, fraud, and monopoly. and if you put all of those things into place, i would not grandfather existing institutions. that would do it. i mean the point to understand , is that this is a long book. the reason the book is long is not because the theory that i want to have is beyond the capability of expression in a short time. it is because the number of mistakes in my judgment that have been made over 200 years, you have to do it. it is not credible. it is not credible to write a long book to say this is what i think is right without saying why this is all wrong. and so it is not an impossible thing to do. you have to have somebody who is willing to do it.

i regard ted and this general distribution of people as part -- as more sympathetic to my point of use than the median person in the political/constitutional space. -- wildly more sympathetic to my -- space. >> congress has the power to regulate interstate commerce and everything else? >> we can play with words, and i think we can accomplish a lot just right extending the commerce clause to incorporate something like the aggregation principle. that if you engage in activities that affect interstate commerce, congress can regulate it. which is another way of -- but as the supreme court case law, which is another way of saying and responding to this question. the constitutional order that we live in today, i think, reflects this duality between wanting to government to do some things and also wanting to protect the liberties that richard is talking about.

i have suggested that even the framers, madison and hamilton, certainly wrote about this. they felt that differential pull. you want a government that has force and vigor, but you also want to protect liberties. i think that is the constitution that we have. so that richard's vision is unusually pure. whereas i think the actual constitution realities and our civic values which are reflected in the constitution are much more binary and reflect the push and pull between active government and protection of liberties. >> can i come in on the liberty point? some very strong applause. i would rather talk than be applauded. there has been a reversal of polarity between the 19th century and the 21st century. when i read off those things, under the police power there , were four headings. i concentrated on health and safety.

i did not spend much about general welfare. that meant classic public goods, which for the layman in the audience means a good that is not exclusive. you cannot give protection to some of citizens unless you give it to all. so you have to tax them. otherwise it would be under provided. there is this funny word called moral. the moral tenet of the police power is, by common acclaim, the least libertarian portion of the classical constitution. not the classical liberal constitution. so what can you regular in the 19th century under the police power? well, you could regulate bowling, for example, because it tended to lead to sinful activities. you could regulate any form of gambling that you wanted. you could regulate anything associated with sexual behavior, inside or outside of marriage. you could criminalize sodomy, you could criminalize homosexual behavior. you could criminalize adultery, even criminalize fornication. you can pose all kinds of

restrictions on what ages you can marry, degrees of marriage, and so forth. this was a soup to nuts regulation. the basic 19th century view of the world was not consistently libertarian. it was freedom in the economic sphere and powerful regulation in the moral sphere. which carried forth much of the sure chemical -- puritanical position. you come to the 20th century, all the economic liberties disappear in the weight of the lochnerake of the decision and the new deal. we can have minimum wage laws, overtime statutes, union laws. have antidiscrimination laws. hallelujah. then comes a case called griswold against connecticut, and all of a sudden it is unconstitutional to ban the sale of contraceptives in connecticut. justice douglas, who writes this opinion is a tap dancer. , he says that he looks at all

of the penumbras of the bill of rights and he sees his probation everywhere. so everybody is worried about, where are you getting this? you believed in judicial restraint. it is clear it is the opening gun in an area where now the liberty side is done with respect to sexual relationships. he says, and he writes, this is just for marriage. not after 1972. it turns out that it is an individual right and has nothing whatsoever to do with marriage. college kids over the age of 18, they can enjoy whatever contraceptive benefits they want. and then a year later you get , roe v wade. as you keep moving forward you , get the prohibitions on sodomy laws. first, you decriminalize the stuff. lawrence v texas, 2003. and now, the push towards the legalization of gay marriage is bleindex a rubble -- inexora

it surely will take away, by legislation or constitutional law within the next five years, the opponents. and so liberty in this area is high. what is ironic is that the people who are in favor of these changes, they do not have any questions about what is micromanaging the overall system. my view was a i am fun for -- am torn for different reasons than ted. originalist, i know that every one of the decisions are wrong. i should take them away. but as a libertarian, i don't want to. it is clear to me that i would, i think -- in the end, intellectually, economic liberties are more important to protect. the other liberties will be protected to the political process. we were not protected to the

before, but it is the dichotomy that is so striking. if i had to and with the following play, it is a uniform. of constitutional interpretation that starts with how we put the government together. federalism, we did not stress separation of powers. you need a soup to nuts theory. moraly intrudes on this policing power. if that means abandoning fidelity to statutes i do not like much anyway, we do it. >> ladies and gentlemen, please join me in thanking the speakers. [applause] [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute which is responsible for its caption content and accuracy. visit ncicap.org] >> dynasty night as u