landslides many of them in this era, but the great depression and now we have franklin roosevelt as the next tide turning president who wins and wins again and wins again and wins again, hands off power to his wing man, harry truman. and that's really the dominant coalition until vietnam and just the chaos of the 1960s, sort of tears apart that coalition, which has become the great society, in the late 1960s, and really ronald reagan eventually is the next really genuinely tide turning president who won, won reelection, won a third term called h.w., his handing off power because now he can't return for a third term, he is term limited and until now we have been living basically in the era of reagan. those are the tide turning

presidents, washington and jefferson and lincoln and fdr and reagan, and if -- this is the choice that's before us, my fellow citizens -- in 2016 if barack obama's former secretary of state, his wing woman, hillary clinton, were to win we would say about obama or historians might say the tide has now once again turned, president won, won reelection handed off power. and if the democrats -- we only know this in the next two or three elections. if they become basically the dominant presidential party at least, then you would -- now, okay. so that's the structure, the rhythm of the presidency. and if you're a democrat i'm going to bum you out on how powerful actually we still -- lincoln's gravitational pull is because, remember, the democrats are overwhelmingly the dominant political party until lincoln. and the civil war loomed so large in our memory that since lincoln there are only two

democrats who have won two popular votes for the presidency. franklin roosevelt, barack obama, that's it. wow. yeah. not jack kennedy, not harry truman, not bill clinton. none of them. okay? and so -- so -- now you're thinking this obama he is not as bad as we thought, that's actually pretty impressive. but the democrats have won popular votes, pluralities in five of the six last presidential elections and if they prevail again going forward, the republicans don't sort of rethink their formulas then they are going to be in the minority for a while. okay. that's the presidency. now, how does that interact with

the court whose justices are picked politically but have life tenure, don't have to leave if they don't want to? well, there are these special moments when the new rising president confronts the ghosts of administrations past in the form of these holdover justices that have been appointed by the other party, the party that you ran against, you know, change -- because presidents are change agents, they always are promising sort of a new thing. most of them fail. most presidents actually fail. it's an impossible job. but the few who succeed, the jeffersons, the lincolns, the fdrs, the obamas, are going to confront a judiciary that is largely in the hands of the regime they ran against. that's the drama of these great moments. when i say the tidal pattern and face-offs, that's thomas jefferson facing john marshall who was a federalist who is basically in the washington john

adams camp and now actually there is this confrontation and we actually call that marbury versus madison. marbury versus madison the real drama isn't marshall inn validating -- i'm sorry. i should have started with washington of course. my apologies. there is not so much of a confrontation here because washington picks john jay, okay, he is washington's guy. he doesn't inherit all these british judges, they've been tossed out in the american revolution, but just so you know, in 11 of the 13 colonies the chief judge of the colony sided with george iii against george washington and the american revolution. article iii which is the judicial article is third out of three for a reason. for several reasons. it's the least and last, there's the least text associated with t it's third out of three, politicians are supposed to pick judges, judges are not supposed to pick presidents.

that's why bush versus gore is a disgrace. but the reason that judges were third out of three is they are not the leaders of the american revolution, they are not the champions. so there's not this face-off initially with washington because he's picking john jay. but with jefferson against john marshall there is this confrontation and it's heightened because they're second cousins and they don't even like each other. note that john marshall has to swear in jefferson just as roger tawney is going to be swearing in abraham lincoln and you remember the slightly flubbed swearing in when obama was sworn in by john roberts. these are slightly tense moments. i'm getting ahead of the story a bit. marbury versus madison is conventionally thought as john marshall inn validating act of congress, but the real drama is john marshall against thomas

jefferson because marshall's opinion goes on and on about how lawless the jefferson administration has been, in the same way that today's court is being invited to say, well, the obama administration is lawless on immigration policy, and the obama administration was lawless on obamacare and not just in the law, but the implementation of the law, and the obama administration is lawless on some of their carbon rules and the epa. so this is nothing new. it's a feature of the distinct structural pattern of a presidency that's a four-year term with this tidal feature and justices who have life tenure. so marbury is a drama. now flash forward. roger tawney and abraham lincoln. abraham lincoln becomes president by running against roger tawney, by telling everyone who will listen just

how preposterous dread scott is, this young lawyer from illinois calls it, quote, i love this phrase, an astonisher in legal history. now the tension when lincoln confronts tawney who wants to invalidate everything lincoln is doing and declare everything the obama administration -- i mean the lincoln administration is doing unconstitutional. he wants to declare lincoln, they have a draft, an individual mandate, if you will, which that's what it is, it's a conscription law and the lincoln theory is actually it's a tax because you can buy your way out of it just like the individual mandate. he is afraid that tawney is going to invalidate the whole thing and when tawney dies they find in his desk -- the case never materializes -- they find in his desk a complete draft opinion, a draft-draft, if you will holding conscription unconstitutional. the case hasn't reached the

supreme court but tawney is ready, he's got it in his top drawer. lincoln's emancipation proclamation if you read it has all the poetry of a bill of lading. it doesn't soar like the gettysburg address. why? and it doesn't free everyone but only some people in some jurisdictions. because he is a lawyer, he's trying to bulletproof it because he knows if you give tawney this much he will hold that unconstitutional. so this confrontation because the court that he confronts is a court filled with jacksonians and people appointed by franklin pierce may he rot in hell. this is a c-span event so i paused a little bit but i think i can get away with that one. and james buchanan. that's the court that lincoln confronts because justices are ghosts of presidents past and lincoln is running against all these presidents, against the tide. okay? and that's -- and some of you may remember this from your history books, i won't say you

remember it from your child hoods, i won't insult you this way, but the new deal, remember, it's, you know, the new deal against the old court and franklin roosevelt confronts all of these republican justices and in his first term he has not a single appointment. so nine who were appointed by earlier regimes who are threatening to invalidate every part of his program, the national industrial recovery act and the agricultural administration act and obamacare -- i mean -- and -- so his -- so, you know, his social security structure. so that's this -- these face-offs are built into the structure of a presidency that's four years and tidal and these justices who have life tenure. now, the -- reagan didn't really have this confrontation and here is why, because earl warren who was basically a supporter of lyndon johnson mistimed his exit and he ended up doing things in a way so that richard nixon even before getting elected had two open seats to fill and then

there were two other seats. so by the time reagan became president previous republican justices had already begun to stock the judiciary in ways that were sympathetic to reagan. republicans have controlled -- i will say this again later -- the supreme court. republican appointees have controlled the supreme court since 1970. and that's now no longer the case because it's 4 to 4. the reason -- the reason this date -- this night is so different from all others is we are facing an election in which

the house, the senate, the presidency and the judiciary are all in play. in january they could all be controlled by the republicans, they could all be controlled by the democrats or something in between and that hasn't happened in the longest time because the senate has gone back and forth between the two parties and the house of representatives and the presidency, the court has not swung since 1970. so that's part of, you know, why this is particularly fraught. but yes, of course, when obama confronts these republican appointee -- court -- the roberts court whose majority is appointed by the folks of the party against which he ran, that's the drama of the obamacare case, you see, and it's not so different than the old court and the new deal, or roger tawney trying to invalidate everything that lincoln is up to, his habeas corpus policies, his draft policies, his slavery emancipation policies. it's very similar to the confrontation between john

marshall and thomas jefferson. so there is a pattern to all this. now, i promise the you since this is the new york historical society that we are not just going to do history, we're going to do new york. so in each of these let me just remind you of the new york angle. the first one, george washington, he's picking a new yorker, john jay, educated just right down the road here at columbia to be his chief justice, so an obvious new york angle in that one. what makes in two words thomas jefferson president in 1800, you could say the sedition act or you could say new york. aaron burr. that's the swing state.

adams and jefferson are running against each other and jefferson comes in second and then they do the rematch in 1800 and jefferson prevails and that's because he gets burr to help him win new york. new york is the swing state in that election so it's looming very, very large. it was burr against hamilton here on this island. whoever won the island would win the state, whoever won the state would win the presidency setting up this confrontation. now, i admit that the third face-off doesn't have as much of a compelling new york angle, lincoln and tawney and neither of them is quite a new yorker, but lincoln does rise to prominence and mansion to win at the convention, not on the first ballot of course, because he impresses people in this city, the great cooper union address is actually the key to lincoln's success. now, the fourth one is one of the most new york stories of all, it's charles evans hughes against -- it's the hughes court against -- chief justice against franklin roosevelt, both new

yorkers, both former governors of new york, both studied at columbia, they are friendly actually although one is a democrat and one is a republican. when they refer to each other, governor, governor, you know, and they have some -- and roberts is not the most extreme republican on that court, but there are some folks to his right nicknamed the four horse men of the apocalypse who make life very difficult for franklin roosevelt and it's a very new york story. now, of course, the current court, it's headed by a new yorker, born in new york state, buffalo, learned his law here in this city, new york city, from henry friendly. the other members of the court, we've got ruth bader ginsberg who finished her law degree at columbia and was a brooklyn person and sonja sotomayor is a bronx person, elena kagan is manhattan all the way, and antonin scalia was queens. so no staten island, i guess. i mentioned sam alito. but her also merrick garland who learned his law in this city and he is the guy on the hot seat

right now. so it's very much a new york story. and what's going to decide? what's going to decide the election is which -- who fills that slot on the supreme court, what's going to decide it is which man hot night becomes president of the united states, whether it's donald j. trump or basically hillary clinton. so it's very much a new york story and the supreme court is very much on the ballot. and when you have judges, for example, who decide -- who oust a president of the united states in effect, richard nixon, or pick a president of the united states, george w. bush, or basically tell us who can vote and who can't with id laws and all the rest, the court is influencing in important ways in close elections who is going to win and who is not. and so these things interact. very interesting interaction between the presidency and the court. so that was my first big thing. my others are shorter. and so now here is another -- so this is a long-term trend that we are witnessing, the rise of

judicial power. so i'm going to say a little bit judicial power. so i'm going to say a little bit more about this. john jay quits the court because it's just a hassle, and he's the first chief justice. and he's actually offered the position a few years later -- let me actually tell you what he says. he turns it down and the reason john marshall becomes chief justice is the clock is winding down, adams has to pick someone because his term is about to end and john marshall is the only guy in town and the mail is slow and he says it's got to be you because i know you will accept. jaw sat on the offer for a while, and by the time he basically said no, there weren't many days left in the adams administration.

what precipitated marbury versus madison? the so-called midnight judges when john adams after losing tries to pack the judiciary with even more federalist judges to make life difficult for thomas jefferson or to protect his side. again, political appointment and then they have life tenure thereafter. that was the backdrop of marbury versus madison, this race against the clock created by life tenure for the justices versus a very different tenure for presidents. when jay is offered the presidency -- the chief justiceship again, he declines it because the judiciary lacks, quote, the energy, weight and dignity which are essential to it affording due support to the national government. basically i don't know how to make this thing work. it's broken. well, john marshall begins to see the possibilities of it, but you've heard of marbury versus madison. name me -- which among other things stands for the proposition that courts can

invalidate acts of congress that they deem unconstitutional. okay. first, what was the great issue of liberty involved in marbury versus madison? correct. there was no great issue of liberties, it's original versus appellate jurisdiction and who cares? you can see it a different way, just how unimportant the court is initially. do you know how many justices there were on the original supreme court? six. an even number. how odd. how can a court ever operate with an even number? because right now you see we have eight. well, they are not imagining that the supreme court is going to be the be all and end all for things. by the way, if you've been to the supreme court building, when was that built? it's a beautiful building. 1930s. where did they meet before that? in the basement of the senate. l'enfant's great plan for washington, d.c., they didn't --

like the judiciary was even an afterthought. they created from the beginning an executive mansion and a house -- and a congress building, but nothing for the judiciary. it is third out of three, it's least and last. after marbury 1803, when is the next time the supreme court inn invalidates an act of congress? and the answer is not until 1857, credit scott, and they made it all up in that case, holding unconstitutional the free -- in effect the missouri compromise which prohibited slavery north of a certain line, which was an astonisher in legal history because the very first congress prohibits slavery in the northwest territory. there is no problem, congress has power to prohibit slavery in the territories, the framers said congress would do it. the northwest ordinance was passed even before the constitution was ratified and everyone knew that when the constitution went into effect they would bless all of that. in 1820 when they -- excuse me, when the missouri compromise is passed saying no slavery north

of a certain line, every single cabin officer signs off on it, no one says it's unconstitutional. every single cabinet officer, that includes john calhoun from kout south carolina. and yale by the way -- this is just a news flash -- going to keep calhoun as the name of one of our residential colleges. i was rooting for harriet tubman college. no. so -- so judicial review is not that important a phenomenal early on. constitutional issues are really important. presidents are vetoing bills all the time on constitutional grounds. half of the presidential vetoes are constitutionally based. about 50 vetoes, half of them are constitutional vetoes and they are vetoing bills that courts have upheld or would uphold like the constitutionality of the bank which the court says is okay, but andy jackson says not good enough for me i'm vetoing it.

judicial review is not actually -- almost none of the important issues, constitutional issues, in the early republic ever get to court or are resolved by court. can presidents negotiate secret treaties, can they send secret invoice, how should they -- rounding errors in the apportionment of the house of representatives, the -- dealt with, can presidents fire cabinet officers at will, is the assumption of state debts by the federal government constitutional? lots and lots of early issues, constitutionally arise, and the supreme court doesn't play a role really in the resolution, they are resolved in the other branches. and today, wow, the supreme court is the 800-pound gorilla. it not only ousts presidents and picks them, nixon and george w. bush, but twice in an average year it's invalidating an act of congress and not original versus appellate jurisdiction because who cares really about that.

they're invalidating or threatening to invalidate big laws like obamacare, laws about affirmative action and religion in public life and immigration and so huge constitutional questions that are being decided by -- campaign finance, really big ones. twice a year. so what's up with that? how is it that we have this rise of judicial power over time? the least dangerous branch of the founders becoming today's 800-pound gorilla. well, here are two factors that i would identify. there's many. we could talk about how the courts just, for example, there are many more judges today. they say friends come and go but enemies accumulate. judges accumulate. you need more of them.

you can't keep adding legislators. as dysfunctional as congress might be with 500 it would be probably worse with 5,000. okay? so congress can't -- so at the time of the founding there are seven members of the house of representatives, after the first census. there are about 105 members of the house of representatives and six justices. so seven justices -- seven representatives for every judge. today there are about 1,000 federal judges, 400 congress people, there are two federal judges for every congress person. that's a 15-fold change in the ratio. all my students, some of them are here today, they -- almost all of them they want to be judicial law clerks to work in the judiciary rather than congressional clerks or something. the judiciary has a lot more influence because there are a lot more of them, the supreme court gets to decide which cases it is going to pick which is wasn't able to do in john

marshall's day which gives it a certain power, an new england, so there are many factors. we the people have increasingly punted issues to the court for resolution, we have adopted a whole bunch of constitutional amendments over the years that presuppose vigorous judicial enforcement, the bill of rights, the 14th amendment, 15th amendment and others. but here are two, one of which has particularly a new york story. one divided government. in a world of divided government no matter what the court does, you know, either the legislature is going to like it or the president is going to like it and the court can't be over turned unless basically the legislature and the president all are on the same page to invalidate.

in a world of divided government

so is roberts going to be able to do that if he finds himself in the minority because william rehnquist wasn't in the minority and neither was warren berger. and neither was earl warren. yes, an appointee but a liberal republican appointee. so it will be a distinctive challenge. tawney was supported by all these jackson democrats and pierce democrats and buchanan democrats on the court.

and yes it actually is true that william howard taft was a judge before he was chief justice but he had some other really important jobs also. you're thinking president of the united states, i'm thinking professor at yale law school. whereas today except for elena kagan -- the court that gave you brown versus board of education none of them except one was a federal judge and the one none of you will even remember. not earl warren, not william dougla, not felix frankfurt, not

hugo blah, sherman mint0 n. anyone remember sherman minton, he was also a senator. he had a lot of political experience. today except for elena kagan all the justices were sitting federal appellate judges at the time of their appointment. the judicialization, you rise been the judiciary itself and here is how it begins, by going to a fancy law school, often, you know -- or college in new york or in adjoining state, doing a clerkship, becoming a baby judge and working your way up through the system. i told you that's john roberts who learned his law, learned how to be a judge by studying at the feet of the great henry friendly. merrick garland studied at the feet of the same great new york city judge. this is the rise of new york in some ways, the great universities. here is one way to put it and then i'm going -- we're going to move to questions and answers. just if you think about the rise of claims of expertise and their suspicion about expertise because all these experts on

because all these experts on wall street did things to their own advantage. and experts in the accounting industry and legal academics are just into their own power trip, critics claim, but new york plays a huge role here because within commuting distance of this lecture hall, you know, are three of the six greatest law schools on the continent. you know, just a cab or a commute ride away. yale and nyu and columbia. so these claims of expertise actually mean, for example, that the court today is no longer geographically balanced.

it it used to be when justices rode circuit, there was agee graphic balance. now you focus more on a dem graph nick balance. how many women, how many jews, how many catholics, how many blacks, how many asians and the like. it's -- and that creates the possibility of a very new york dominant court for example. which you couldn't have had in an era of circuit writing. i think i have said enough just to get the conversation going. and one thing that we haven't talked about -- we talked about how you get on to the court. we haven't talked about merrick garland a lot. i'm happy to do that. we can also talk about off-ramps from the court, how people leave the court and whether they're leaving the court in politicized ways or not. so there's lots of stuff to talk about and i think it's now time to move to q&a. so please come up to the microphones.

i ask you to please actually ask one question and indeed ask a question. thank you. [ applause ] >> professor, could you please comment on your opinion as to why chief justice roberts seemingly abandoned his republican brethren on obamacare? >> that's the perfect question. the question is about john roberts and obamacare and that is his john marshall moment in which he rises above partisan politics. he might be right. he might be wrong. i think he's right. even if you don't, even if you think he was wrong, he was not a partisan about it. he doesn't like this law truth be told. his party doesn't like this law, and yet, he sided with and yet, he sided with democrat appointees. good for him because washington, d.c. almost no one ever crosses party lines and he did. good for him.

and he did it not once, but twice. because it was the sebelius case in which he upheld it against the challenge and then the king versus burwell decision in which he read the statute purposefully, generously and didn't sort of try to undermind it with -- undermine it with clever technical lawyering that was not faithful to the larger purposes of the law. again, you might disagree with him. i think he was right, but even if you disagree with him, note that he was not a partisan. now, by the way since -- i'll use this as a chance to say one other thing. we talked about getting on the court. how do people get off the court? i said it's a political appointment process. that's life tenure after that. true enough but for much of american history you had pauls on the -- once and future politicians who didn't give up political life when they donned

the robes. why did john jay leave the court? to become governor of new york. and his colleague cushing would have left the court had he been elected governor of massachusetts. but he lost. i can give you some new york angles on all of this. charles evans hughes is a former governor of new york. he's an associate justice. he leaves the court, it's a cushy gig. why does he leave it? to run for president of the united states. he only loses california by 40,000 votes. if he had won california, he would have been president of the united states and he became a secretary of state, because there's a connection between secretaries of state and presidents. in american history many of your early presidents -- half of the secretaries of state who served four-year terms become president and others came very close like henry clay and daniel webster. so there's a new york angle with

huz who then becomes chief justice later on. william o. douglas who learned his law at columbia wants to be the vice president of the united states. he comes this close to being fdr's running mate in '44. he's fdr's poker buddy, and he had more political personality, frankly than a judicial one. it would have been more suited to his temperament. but critics would say he was a trump-like figure in various ways and maybe perhaps not suited for that. he thought after that about running for the presidency in his own right. that was another new york angle. in an earlier world, it would -- in our world it's preposterous what i'm about to say, but in an earlier world, because justice -- justices didn't give up politics and pol cal ambitions when they were on the court. oh, chase, he's lincoln's appointee, he's angling for it. he's angling to basically replace johnson as the democratic nominee for the

presidency in 1868. so almost all of the people that lincoln put on the court are angling for the presidency. and that's not as true today. if i actually -- you know, analytic point of view would say who's actually the republican's sanest choice, you know, because paul ryan, you know, is a good looking young guy. heartland of america, who's a good looking, sensible, centrist, really smart republican, heartland of america, former high school quarterback and, you know, right out of central casting, his name is john roberts, you know? and he's a smarter and younger and better looking version of john kasich. you see? you know, just saying. and of course, what i just said is preposterous because actually, he's not a pol.

and good for him that he's not. i don't always agree with him, but chief justice roberts if you see this on c-span you have a big fan in yours truly. and you learned your law from the great henry friendly who taught merrick garland and many others. and henry friendly believed the law is different than politics. so do you and so do i and we're lucky that you have that view. yes? >> i have a question. have any justices been impeached and how would we do it if we could? >> yes. >> i have a couple in mind. >> we do have -- well, remember in the 1960s, i hold you the court was reviewed by the right, the john birch society and others. major bumper stickers, highways especially in the southland. >> i remember. >> chief warren. you shouldn't admit this. you were an infant.

so impeach earl warren. yes, remember impeachment isn't limited to presidents or vice presidents or cabinet officers. john marshall is afraid that if he actually orders thomas jefferson to appoint this guy named william marbury to this position, so marbury comes to court saying i want you the judges to order james madison who is jefferson's wingman, his secretary of state, i want you, john marshall, to order madison to give this guy a piece of paper saying he's a judge. because remember at the end of the administration, adams tried to pack the judiciary with all of these federalist types. marshall is afraid if he does that, he's going to be impeached and maybe convicted. that's actually only the second worst option -- scenario.

the best scenario is he'll just be ignored and made a fool of. second best is he's going to be impeached. and i'll tell you why he thinks that. other at least possible scenario. remember, we know how history turned out. he doesn't. jefferson was there in france. he says lots of things about the french revolution, the tree of liberty must be watered by the blood of tyrants. so maybe the guillotine. he doesn't know he won't be a chavez or castro type. jefferson says a lot of, you know, bat crazy stuff. c-span is here, so, you know, why is he thinking that he might be -- so he doesn't. he says jefferson did all those horrible things but too bad we don't have jurisdiction. >> what is the process -- >> the process is the same and i'll tell you who was impeached. a justice who sat on marbury versus madison court. man named chase.

not solomon p. chase but samuel chase. it's the same as any other impeachment basically. a majority vote of the house and two-thirds of the senate. presidential impeachments are different. sheaf justices preside. otherwise, who would preside? the vice president because he would win the presidency upon conviction so he has a conflict of interest. but for every other impeachment, it's just -- chief justice doesn't preside. the majority of the house, two-thirds of the senate. i myself have been involved in the impeachment as an adviser of a lower federal court judge. impeachment proceedings named porteus, who was basically a crook and convicted and ousted. but here's what chase did. chase was a justice who was a federalist and he was way

partisan. and he threw the book at jeffersonians who spoke out against john adams. he threw the book at them in prosecutions under the sedition act. he was just a little too vigorous in enforcing the sedition act. he wouldn't let juries really hear the first amendment -- and other constitutional defenses of the defendant. he was a little too vigorous in all that. he gave political speeches. so he's impeached. there was an earlier federal judge who was actually impeached and removed. critics said he was abusive of power. defenders said maybe he's just drunk. he was an old guy. but we would say today maybe he was suffering from dementia and alzheimer's. is that a high crime and misdemeanor? no. but would you want your case decided by this judge? his name was pickering. he's almost convicted. a majority votes to convict, but

not two-thirds. i know i'm about to get the hook, but dale told me you guys like stories. so here's the greatest story. at the same time that chase is being impeached for his partisan misconduct, burr has killed alexander hamilton in a dual. now burr, is the vice president of the united states. he presides over the senate and therefore, the impeachment trial of chase, leaving wags in the newspapers to say in most countries, the murderer is arraigned before the judge. but in our country we have the judge being arraigned before the murderer. thank you very much. [ applause ] american history tv is in primetime tonight with a focus on the u.s. supreme court.

our lineup includes justice stephen breyer talking about the influence of foreign relations on national security and civil liberties. as well as a discussion on the relationship between chief justices and the president. we'll also take a look at the 1905 supreme court case, lochner versus new york and its impact on say the and federal labor regulations. that's tonight on american history tv, beginning at 8:00 eastern here on c-span 3. up next on american history tv, the supreme court historical societies hosted a discussion among thoornz academics on the 1905 supreme court case lochner versus new york. in that law, it said it limited the number of hours a baker could work violated the guaranteed liberty of contract.

the decision ushered in what's known as the lochner era. with the court striking down many regulations on working conditions over a three decade period. supreme court justice stephen breyer introduces this event. it's about an hour. >> let me now mention how much we appreciate the fact that justice breyer has agreed to those evening we are sincerely grateful to you for that. brief comments about justice breyer can't begin to do justice to him, so i'm going to have to be unjust in light of time constraints that i'm subject to. justice breyer has always been remarkably generous with his time in supporting society projects. and indeed in less than two weeks on june 6th, at our annual meeting, he'll be delivering the society's 41st annual lecture. and, of course, he's doing these extra projects for the society at a tremendously busy time for

him and for all of his colleagues on the court. so justice breyer, thank you so much. some background on justice breyer. he was born in san francisco. he eventually, after stanford, came east. farther east. he's got a b. a. from magdalene college at oxford. he earned his law degree at harvard. he went on to clerk for justice arthur goldberg. this court, he served with great distinction in the justice department. he served as chief counsel to the senate judiciary committee at one point and served in other similar roles during that period of his career. he has taught at harvard law school at the harvard kennedy school of government, at the college of law in sydney, australia, and at the university of rome. in 1980, president carter appointed justice breyer to the united states court of appeals for the 1st circuit and he was the chief judge there from 1990 to 1994.

and then in 1994, president clinton nominated him as an associate justice of the supreme court to succeed justice blackman. he took his seat on august 3rd, 1994. he's also been a prolific writer. not just of judicial opinions. many books, wonderful articles, on a very wide range of important legal subjects, both domestic and international. his most recent book, the court in the world was published last september. in a nut shell, in my view, and i'm sure that you will agree with me, justice breyer's career is powerful evidence of the enduring contributions that a single individual can make to society when he or she is blessed with a keen intellect and innate sense of decency, a dedication to the rule of law, and a determination to make our country and our world a better place.

it is my great honor and privilege to present justice breyer to you now. [ applause ] >> that's a pretty long introduction. very nice. but i'm going to give you a fairly short introduction and you're going to get to hear what you would like to hear, what is about lochner. i'm very happy to be here and introduce you. i'm glad you're all here. and i do want to say that the society, it does a terrifically good job. its job is basically to tell its members, i hope most of you are members, and people who aren't members and judges in our court and everybody else in the world something about the history of the court and something about what we do. and that's a very, very useful thing. i cannot tell you how often i talk to audienceiences.

i love to talk to school children particularly. i've got to get them interested and got to explain what we do. and by and large, they don't know. so thank you for what you do. you have teacher attaining programs, you train high school civics teachers, you release histories like the federal courts and essential history and sponsor these lectures, like the leon silverman lecture. and leon used to give very long introductions to the introducer too. i remember that. but leon was terrific. i'm so glad they have named this lecture series after him. this is a series called -- four ports. it has four parts. this is part two. the four parts are on the court and the progressive era. now, tonight's event is a panel discussion. the panelists are randy barnett and paul kens and victoria nourse. the three of you will discuss. who are these people? as you probably know, paul kens is a professor of political science at texas state university. he frequently writes on subjects

involving legal history, constitutional history, the history of law in the american west. he's written many books including "lochner versus new york: economic regulation on trial," "justice stephen field," he was from california, and he had a very colorful career, "shaping liberty from the gold rush to the gilded age," stephen field, and "the supreme court under chief justice morrison r. waite." randy barnett is the carmack waterhouse professor of legal theory at the georgetown university law center. he teaches constitutional law and contracts. he's director of the georgetown center for the constitution, he's published many, many things. his most recent book is "our republican constitution: securing the liberty and sovereignty of we the people." he's also written "restoring the lost constitution: the

presumption of liberty" and "the structure of liberty: justice and the rule of law." now, between the two is our moderator, professor victoria nourse. she is a professor of law at the georgetown university law center. she is the author of "in reckless hands: skinner v. oklahoma and the near triumph of american eugenics" and a forthcoming book, "misreading law, misreading democracy." this panel is perfect to discuss this issue, so please join me in welcoming professors kens, barnett, and nourse. [ applause ] >> well, on behalf of the panel, thank you very much, justice breyer, for that wonderful introduction. and i am delighted to be here. hopefully i'm one of the last moderators in washington to moderate a debate between two of

the most distinguished lochner scholars in the country. if you've seen their earlier c-span performance, you'll find it entrancing about the facts, the progressive era, the nature of the case, how teddy roosevelt made it the bake shop case famous. but you won't here much about the key legal concepts that drove the case and differ in many respects from our current constitutional law. i hope today having written a bit myself about lochner in the course of my book on skinner that we'll hear from these distinguished scholars something about these concepts, and they include the very notion of right, of substantive due process, the presumption of liberty, and a somewhat forgotten concept called class legislation. i'm going to give the honors at first to professor kens as we discussed on the phone earlier for ten minutes and then professor barnett for ten minutes and then i will attempt

to intervene if i get a word in edgewise to guide the conversation on some of these interesting concepts. over to professor kens. >> thank you, victoria. i want to thank justice breyer for his kind introduction and thank the historical society for inviting me to participate. i appreciate the opportunity to take part in this conversation about lochner versus new york. a case that, to put it mildly, has not enjoyed a very good reputation. chicago law professor david a. strauss best captured the lochner legacy with a simple question. who would ever cite this case in a supreme court brief except to identify it with your opponent's position? it is safe to say that a majority of lawyers, constitutional scholars, and judges from all sites of the

political and economic spectrum rank lochner along with dred scott as one of the worst decisions in constitutional history. of course, there are some prominent and distinguished exceptions. i suspect randy will attempt to convince you that the lochner case does not deserve its reputation. i am here because i think it does. however, there are many things upon which randy and i do agree, one is that we both agree that -- and recognize the importance of liberty in our political system and our constitutional tradition. so in the spirit of starting our conversation, i would like to focus on the meaning of liberty. not from my own perspective, but from observations of what liberty meant to most people in the 19th and early 20th centuries.

lochner is famous or infamous for the use of doctrine of liberty of contract to overturn a law limiting the hours of bakers to ten hours a day, or 60 hours a week. even though liberty of contract is not among the rights expressed in the constitution, peckham concluded the general right to make a contract, including the right to purchase and sell labor, was part of the liberty of the individual protected by the 14th amendment. it was peckham's use of liberty of contract to overturn the shorter hours law that caused justice holmes to criticize the majority opinion as being based on laissez-faire economic theory instead of the constitution. later inspired reformers like theodore roosevelt to charge that the court had had created an insurmountable barrier to reform. the curious thing is that the lochner case actually has nothing to do with liberty of contract in any meaningful sense.

in its most fundamental character, a contract is a voluntary agreement between two people. it involves some degree of meeting of the minds and dealing at arm's length. those conditions were clearly not present in an employee/employer relations in the newly industrialized economy of the turn of the 20th century. the actual target of this law that was overturned in lochner was the conditions of labors in new york's cellar bakeries. these were typical of the wage earning jobs of the era. working conditions in the bakeries were atrocious. located in tenement basements, these bakeries were damp, dark, filthy, and they had ceilings as low as 5 1/2 feet high. poor ventilation caused them to be stifling hot when the ovens were on. and the bakers' work involved

heavy lifting. and their pay was low compared to other jobs. it is important to understand that the workers were typically paid by the day or by the week. and the number of hours that a person worked was unilaterally determined by the employer. the baker's main complaint was the number of hours they were required to work. by 1895, when the bake shop law was passed, 74 hours was typical and many bakers worked more than 100 hours a week. why in the world would anyone in their right mind agree to work in such terrible conditions for so many hours and so little pay? the answer is that the economic circumstances gave them no choice. as one advocate of the shorter hours movement put it, an empty

stomach can make no contract. the doctrine of liberty of contract has applied in the lochner case guaranteed little to workers at the time besides what might better be described as the right to indenture one's self for the day or for the week. now, if lochner -- if the doctrine of liberty of contract is -- that raises the question, if lochner was not about liberty of contract, what was it about? the answer is that it was part of a more sweeping history. that history held that the constitution implied a right to businesses and individuals to be free from government regulation. this theory was revolutionary. and it was controversial. because it ran contrary to the traditional american views of the relationship between property rightd