the smithsonian national postal gross and the william h. visit their y, website postalmuseum.si.edu. you can watch "american artifacts" anytime online. this is american history tv, on weekend, every weekend c-span3. >> join american history tv as ight on the civil war historian damian shiels talks about patrick clayborn and the battle of franklin. mr. clayborn came to the united states in 1850. that is tonight at 6 pm eastern here on c-span3.

>> coming up next on american history tv, a conversation about the book "the classical liberal constitution: the for limited est government." author, are the books theodore pstein, and ruger. this hour and 15 minute program was hosted by the national constitution center. it was moderated by its president. >> welcome to the national constitution center. i'm jeffrey rosen, tthe present is wonderful institution. it is so great to welcome you a the keynote event of blockbuster fall cycle. the national constitution center is the only institution

dedicated to the constitution a nonpartisan basis. a new gallery displaying one of the 12 original copies of the bill of rights. this is the first time that to l of rights is returning philadelphia. it will be joining the gallery copies of that -- making us the only institution in the united states of america to display three documents of liberty on the same place. will join us.ou i cannot help but plugging the evidence coming up.

incredible debate about collecting cell data information. we have the government on john marshall. the freedom medal. on october 27, the of rights the bill gallery. the gallery is being named after george h. bush. it will be an incredible fall season. for all ou will join us of it. i could not be more excited to open this panoply of discussions on the bill of rights. with my friend and colleague, one of the most distinguished constitutional theorist, richard epstein. the "the ew book,

classical liberal constitution: for limited n quest government." in our discussion is evening, we'll discuss how richard to the an alternative conventional theories of interpreting the constitution. of the classic liberal constitution. be thrilling to see the power of his ideas. by cannot be better served my friend, ted ruger. he has written about american legal institutions by the supreme court.

we will have a great conversation. all right, richard, we had so much to discuss. i will jump right in with one of the most striking of your claims, which you make throughout the book, but in in the conclusion, using the central message of classical liberal constitution is to go against of jurisprudence -- you also save repeatedly that the conservative originalists have moved too far in embracing judicial restraint. >> one of the things you have in constitutional law is to sometimes accept the proposition that the obvious proposition isn't true. various kinds at

of constitutional provisions, many of them are drafted in very broad terms. you can only way that understand words like freedom and private property is to be they are igure out how used, both as political theory, and common-law. private property, for example, is an old embracing notion. to say that you believe in the fidelity of text, and narrow interpretation, essentially puts to ideas and tension with one another. you are not loyal to text, if read it narrowly -- so, the is figure thing to do to interpret the reading. austin, justice scalia thinks that the constitutional text is

self-contained. in fact, going back to roman tell you that uld of the last expert on -- roman strategies say that if we a prohibition on private property, we should prohibitions on -- that take you can never private property, for you if you can take private property, helped you measure should be ons when it just. of s whole elaborate body non-contextual stuff must be read in. conceptual stuff usually falls under police power. where every constitutional provision is subject to health,

safety, and general welfare. the project becomes extremely hard. unfortunate, interpretation is a human activity. it is often done by people who do not get quite right. to do is when you go on the first wrong step, keep going down that path. in many cases, the thing to do ratify earlier errors. two ive you -- just illustrations -- the general on judicial review. pretty clear that if prone textualist, you do the two things. able to n have to be

incorporate those changes that become so ingrained in american fabric that it becomes impossible to get rid of them. look at land law. >> so, ted, richard has set a number of important things, namely that the conservatives are wrong to be pure textualist. justice scalia says that being a is wrong for pure originalist. progressives are wrong. is he offering basically a political theory? he believes the classical liberalism and body by john locke is the right answer. do you agree? would just say to your two questions, yes and no.

i should say, i'm very happy to be here. love the book, it is worth reading. i agree with much of it, but do disagree with some things. i applaud richard critique of a intent, , original originalism. there has been a renaissance of this kind of thinking. i think it is wrongheaded for many of the reasons that richard stated -- precision, intentionally s, vague words that chapters of the constitution used. i also applaud richard kander and bringing in this clear prescriptive unifying vision of classical liberalism.

i think he plays his cards on the table. it is a powerful vision. it is a vision that someone who considers himself a progressive, i agree with many parts of this liberty protecting vision. this leads me to a few inconsistent quibbles -- more with the book. i'm reminded -- in law school about inconsistent critiques -- we talk about the borrowed kettle -- it goes, my me and says e to look you about my cattle, and you gave it to me cracked. no, no, i have three reasons, when i bought it from you it was already cracked. when i gave it to you, it was in perfect condition.

and third, what cattle, i'd never borrowed it. that is kind of my approach to this book. when the constitution was written, just a few blocks from here, is overstated in richard's book. being in york, that is where the articles of confederation were framed and drafted. they do not work. that is why the framers came back to philadelphia. if you read madison and hamilton, they wanted to draft a stronger document. a dison in 51 said this is very different -- the great difficulty lies in this, we

must first enable the to govern, and the other framers n itself. recognized this. hamilton wrote about enabling the national government with force and vigor. think richard spoke addresses that concern. and maybe deemphasizes the back n that we had to come to philadelphia to have a national government that had some force. just more quickly, i'd rather my other ard, but are -- stent reactions -- ch is framing here richards framing here is right historically. we fundamentally changes the country in the 20th century in is entirely

appropriate to adopt an embodied in our constitutional tradition. the myriad ways in which our culture different today than they were over 200 years ago. an exceptional form and revise rethink our understanding of the constitution and the government. along with that, we have the hardest constitution to amend in the world. which means that constitutional change often have to happen outside of the text. if we do have a constitutional today, i different think that is entirely appropriate, and the pathway to constitutional change that the framers may have envisioned. finally, we all share certain

liberty protecting impulses. in that extent, i think that document protecting out, -- when i come viewing liberty, not merely economic liberty, but religious beliefs, reproductive freedom, we may be at ces, mark of liberty feud over a 200 year cycle. >> so, richard, i want you to respond to ted's powerful critiques. the aid first of all that framers took a broader view, and also that the government expanded so much, that is a good thing. classical liberal

would strike down -- let me tell all, you what the vision is. there are few things that had said that i would like to correct. to figure out. choice of remedies that are not there. i did not say that the text was vague. the word private property does not mean exclusive possession, has always meant exclusive possession plus use. when you start to read these things as vague, what you do is you narrow the definition of property.

the can expand the scope of federal government -- and to create nationwide criteria. sent essentially wrote on the dangers of mercantilism. it turns out that those sorts dangerous apply today as much as it did then. with a standard reading of the commerce code is always created a situation in which agricultural, labor, the whole system of cartels is there. wrath against the liberalism is the cartel machine. circumstances do not -- today, transportation and communication is better than it is ever been.

the movement of goods in and boundary lines -- original conception that congress could keep the arteries of transfusion communication open, and do more powerful is today. to the situation of the articles of confederation, he is right. the articles of confederation did not have -- last i did, i and it the constitution said we have a president, we do not have to. that is clear, though sometimes we may want to have a substitution. it turns out, we have judicial power. it turns out, we did not have money wer to tax or raise by debt.

you look at article 1 and says that congress has the power to tax, to pay for our debt. this is much broader than no power at all. but the recent decisions, starting in 1937, embrace unlimited power. paying the debt is paying public debt. comments defense is a collective good. and the general welfare of the united states did not mean the welfare of individual citizens, it meant the collective welfare of the nation. the whole point of this position is to say that congress cannot take transfer individual to one another. you saying, when you get this from. a commonly comes from the text, and every consistent

the rpretation of constitution -- that factional only be limited by putting real-time limits on the taxes. a changed world? yes, we do. i want to make very clear is that when i tie this back to the classical liberal., the we were ports that there, i do not think that anyone would want to deny that. but i'm also saying, the theory is the imated that of perpetual -- what you have some political conflict, short-term taxes, special of those things madison the game that

called factions. clear, to make it not a cal liberalism is theory of the world at large, it is a theory that saves you structure human institutions so that when anyone acts within the rules, he can y way that improve himself is improved factional level of social welfare. there is no connection between -- ern progressivist absolute antithesis. >> ted, much of richard's response focuses on the limits e clause and the of power, the most controversial parts of his. it e been the claim that if were applied, most of the post-new deal state would be struck down. richard says in his book the

only justice thomas of the supreme court embraces his view of the commerce clause. what would happen if richards view were adopted? tell us about the affordable care act case, which you have a lot about, and all adopted a view. testament to is a richard's view. what we write the affordable care act cases, we can discern richard epstein's influence. a reduction of the scope of the commerce clause. is also asked if this richard's vision, i would say no, they did not go far enough.

they made -- they said that the which would andate, have made people pay a penalty, paid tax people not have f they do insurance. somebody to ompel act, and does it regulated in rather than action. they kept the commerce books, but added a cause that the government could only regulate action. now, i guess -- one thought often had and is understated in richards book is the notion of political restraint on government power.

the government as relentless in its desire to regulate and over regulate, indeed, sometimes it is. let's take an example from the care case -- the claim was made that if the government can force you to buy insurance, to buy force you broccoli, maybee even eat broccoli. that was indeed something that came up in our argument. we know that the federal to ernment cannot force you eat broccoli, but their 50 count ments, more if you the seat, that could enact broccoli mandates. zero broccoli -- i'm

state g of course about governments -- we do not have broccoli mandates or anything like it. i think we have to ask ourselves, if we have the conception of the government will always regulate to the maximum of its power, why any broccoli e mandates. i think it's answer is in a two-party system. in the natural ability of imperfectly influenced their legislatures. >> one of the things i want to make very clear -- i thought the arguments about broccoli is of the dumbest arguments. let me see if i can give you a slightly better argument. key decision on the clause analysis -- it

was said that the united states power to regulate commerce the of t included the ability congress to regulate the amount -- grain that he could speak feed to his cows. my wife said, will you stop teasing me, i'm not that stupid to believe that. but what she did understand, and i did not explain at the time, it was a perfectly sensible reason for the new dealers. what happened was, they wanted of grain down.ice what they did was they said you pay this in interstate commerce, you can only sell in domestic commerce. killed the cartels. the cow rs bought

fields. 20% of the grain produced the object to tes can be regulation. if you want to find one program the event immediately terminate, it would be agricultural subsidies. i think ted agrees with that. what was done, it was allowed to go forward. obamacare at keeps alive. congress ion is, is always relentless. no, it is not always. it is not bad, just that we

want to get rid of the cartel facilitation that takes place. justice roberts opinion is intellectual blunder of the first order. why? not just because he is the commonest cause wrong, but the about ing to understand early presence was that you cannot use the commerce clause use taxing power, and you couldn't use the taxing power where you use the commerce clause. the same they are stuff, and it turns out that if look at these d various types of situations, if did not decidedly regulate under the commerce clause, then attacks cause have to follow it. this was developed 100 years ago over child labor tax cases. deal constitution -- what happened was in 1918

a key case, a statute was struck down that said you ship interstate commerce by any factories that had violated child labor law. considers smarter that the business direct regulation of local production, and i will not tolerate it. right about it. few dollars by using child labor, but you lose a lot to sell not being able your goods in the market. congress put at prohibitive tax on the same goods. now, you cannot sell them in the state commerce because the tax will kill you. they start that down. the you may expand commerce clause, but

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 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 -- 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 -- if 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 comes, 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 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, 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 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 legislation. you can create mandatory 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. but they cover a lot of firms. 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 at the bargaining table. there is no monopoly risk for them to capture, so the 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 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 it essentially gives citizenship to everybody born in the united states. this overrules dred 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. or 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.

richard ends his book 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. he said the constitution 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 -- they 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 radicalness. it is also radical institutionally in the fact that it would radically increase judges' power over our lives and their powered to retroactively 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 and 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 famous homes dissent, in abrams, 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 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. not 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. saying, does this go too far? does it not go far enough? the holmes opinion is silly. you have here an opinion about the protection of life, liberty, and property. and 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 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, and 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. i mean, they knew what was in 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 in the first half of the 20th 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 always overlooked the dominant anti-productive effects. >> we have phenomenal questions, from our incredible audience, 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 the stuff we used to criticize liberals for 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 what you need is not just the

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 theory of the commerce clause, 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. and let me explain why, just very briefly, with the distribution of authority. let's start 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 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. do we get 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 mahlon 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. he 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. jackson, a great 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 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

ask, wwbd, 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] with a 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 elena kagan, my former colleague, on cruel and unusual punishments. she gets rid of the "s" and has this wild intervention. you look at cruel and unusual punishment without the "s" and 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. i would 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 there for 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 marshall was 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. they cannot quote full things, 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? he was writing in 1884. 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 of local matters in states, and 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? >> citizens united is, in my view, a very easy case. scalia's 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. it is 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 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 wrote 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 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, 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 more sympathetic to my point of use than the median person in the political/constitutional 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 puritanical position. you come to the 20th century, all the economic liberties disappear in the wake of the lochner decision and the new deal. we can have minimum wage laws,

overtime statutes, union laws. we can 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 so inexorable 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 is i am torn for different reasons than ted. as an 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 before, but it is the dichotomy that is so striking. if i had to end with the following play, it is a uniform 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. history intrudes on this moral 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] join american history tv for lectures in history. a series that takes you inside college classrooms. discussesr saladino competition between the u.s. and the soviet union to build advanced nuclear weaponry during the cold war at 8:00 p.m. and midnight eastern time. all weekend, american history tv is featuring lafayette and west lafayette indiana. it was named for the marquee the lafayette. a french soldier who hated george washington's continental army.

learn more about lafayette and west lafayette all weekend on american history tv. -10, 9, 8, 7, 6, 5, 4 we have the main engines. >> it has cleared the tower. fly like any gold. go. a flight simulator building at purdue university. this is where a lot of things started in aviation. the purdue program was the first in the country to offer bachelor's to pilots in the middle 1960's. today a continues to be one of the finest flight programs in

the country. you, going back to the beginning, some of the country's most important take years, billy mitchell, a world war one commander of the air force. arnold, the father of the modern air force, were both trained to fly by purdue graduates. cliff turpin graduated in 1908. his father sent him here from dayton, ohio for his son to learn about internal combustion engines. we had great research in mechanical engineering and the internal combustion engines. hethe time he left he said knew more about the engines than the factory. the plan was to go back to ohio and build motorcycles. manuscriptf turbines

and he said in the evening ice used to take long walks after dinner. i would go past a workshop where the wright brothers were walking -- were working. i don't believe that. live turpin was a 22-year-old guy who loved internal combustion engines, the smell of oil and grease, he loved making engines smaller and more powerful. he knew the wright brothers were working on airplanes in 1908. they hired him when they found out he was a purdue engineer. they needed his experience. clift irvin helped the wright brothers improve their engine and controls. he wasn't satisfied and wanted to fly. orval -- orville wright and tobur wright taught him how

fly. he went to his father and said, you know all the information -- all the money you invest in my education, i will go fly airplanes. his dad said, ok, i would do the same thing. a short time later at the motorcycle company was bankrupt and clift was one of the most famous people in the country. to 200monstrated flights thousand people in chicago and 5000 people at a county fair. they transported the crates by out, and showed what people could do. no one would believe it until they sought themselves. i've read about people seeing flight for the same time. they said when the plane left the ground there was absolute roarnce, then a huge

when people realized what they were saying. lift turpin had an accident in seattle. his plane went into a crowd. people work -- people were killed, he was injured. he never got on an airplane again even though he lived into the space age. we can talk about george haskett us. a world war i pilot. he continued in the air force after world war i. in 1919 he flew an airplane on the purdue campus. he came with a petition. in june.meeting he wanted to start an aeronautical program at purdue. an aeronautical engineer program. started an aeronautical engineering program as part of mechanical engineering. the chemical engineering has

been the root of so many different forms of engineering. a handful of mechanical engineering programs. he left the air force, came to purdue, and headed up the program. all of the records say that he worked day and night to build the programs into one of the greatest in the country. when world war ii started he went back into the military and never returned to purdue. however, he had started something special. after world war ii aeronautical was separated from mechanical and became its own school. it is now one of the best in the country. george haskett lived a long life. in july of 1969 he was retired in pasadena, california and 1890's a man born in the

, before flight, who was a world walk pilot, watched a man on the moon. neil armstrong who went through the program he created at purdue university. man. is one small step for one giant leap for mankind. >> people like billy mitchell thegeorge haskins realized role that air travel would play in warfare and travel. as we go on a continues with purdue graduates. by 1924 a purdue graduate named frederick martin from indiana was the most experienced pilot in the air force. he headed up a group of four planes to fly around the world. they were going to stop every

night. they would fly and stop. they went through land areas like the aleutians. .t took them over 150 days the whole trip was planned and organized by frederick martin. unfortunately, he was lost in a blizzard in alaska and didn't finish the trip. lost hishe thought he place in aviation history. december 7, 1941 guess who was in charge of all of the air corps in hawaii? frederick martin. frederick martin and his counterpart in the navy had written a report predicting the japanese attack on pearl harbor to the letter. exactly what, what time, what day of the week it would occur. some of the most exciting things happened in aviation and purdue

right before the war and right after. in 1937 a man came here from delaware. he wanted to be a pilot. he doesn't finish and purdue, he is drafted into the army and becomes a pilot. december 7, 1941 he is in hawaii. he was out all night playing poker and having fun. george came back to his barracks just the attack started. he got in the car and raced to his airplane, which was per trade in the movie pearl harbor. >> what is the navy doing practicing? >> they look like jets. >> i didn't even know the jets would soar at us. >> he got up and was able to shoot down four japanese

airplanes. the most success any highlight had. he became a hero. flight is one of the most incredible stories in human history. from 1903 to 1969. from kitty hawk to the moon in less than 60 years. and m.i.t. have graduated more astronauts than any nonmilitary university. durdue and m.i.t. have le among private universities for a while. many learned how to fly at purdue airport. many learned the flying experience. neil armstrong was already a pilot at 16 years old. he flew into this airport. if they didn't learn here, they flew into the airport in their trips.nd business

our astronauts come back frequently. neil armstrong was close to purdue. they come here. they have been through the facilities. they talk to the students. theye they were spacemen were pilots. they love airplanes and flying. now we are landing airplanes on mars. or graduates are very much involved with the trips to mars. throughout the weekend featuring lafayette and west lafayette indiana. our staff traveled there to learn about the history. sisterore about the cities and other stops on the c-span city tour at c-span.org/localcontent. you are watching local tv all weekend every weekend on c-span3. each week american history tv's real america ring jew archival

film telling the story of the 20th century. ♪ >> it is perhaps the greatest rally ever seen in the western hemispheric. showing castro's sway over the cuban people. pitchededictable castro a full inning and a benefit game for his land reform fund. the new president tossed the first ball and the game is on. castro struck out the three batters he faced. is one game where the umpire really has to be careful. -- for manyy cubans cubans the years before 1959 were hard. the cuban peasants rarely owned

their land. life in city slums was also depressing. flourished.isease for most of these cubans, they suffered almost as if they were unaware there was another way to live. ♪ castro came out his support was based not on the poor, but the middle class. ironically, it is the knowledgeable who formed the advanced army of the revolution. when the pied piper sought to broaden support the poor listened. many believe, few doubt. the revolution is a success. is ao's brother self-proclaimed communist. his close associate che guevara

participated in the unsuccessful revolution in guatemala. few cubans, even in the middle class, ever and tion never took place, the government became an instrument of coercion. is a success. ♪ >> in 1983, former president richard nixon sat down with frank gannon, his former white