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to modify the court opinion or at least deliver the scope so that it does not liberate for a

corporation and american politics. there is a trade-off, already talked to were losing a constitutional amendment, and he has written this wonderful book. it is a superb piece of work. i would call it a masterwork in the field, and i caution you, do not read only the text itself, because you will miss 200 pages of wonderful notes. [laughter] the supreme court uses footnotes in their own effective way, and

barry has continued that tradition. i cannot imagine anyone doing get out of research he has done for one particular project. it looks like a lifetime in denver. so i am really not a skeptic about it, it is worth all the time it will take you to read. but today we are going to talk about the tail -- detail. there will be disagreement, have already been promised, and we will try and examine the question that he says is in his reception, and this is the way he put it the other day, my main conclusion is that the most important function of judicial review is to promote public debate on constitutional issues.

we are going to have that debate this morning, and the last fourth of the program we want to have you join us on the program. very quickly i expect them to join in, but we do not have set pieces prepared. we will have a round of each of us having something to say. >> thank you. i want to thank everybody for doing this. i am a big fan of everybody on the stage. thank you for making the point3 tell people not only do not read the footnotes, but start the book and noodle your way to the part of history you enjoy.

i thought that tonight, i have to admire the national constitution center for scheduling this today after the decision, and as you said, it is a jump in off point to understand what the book is about. so you get the same reaction as you get for all controversial decisions to run history, people complaining that the court is unaccountable, where did they get off, these nine folks deciding critical issues for democracy. and i thought i would say three scenarios that might be, and in terms of how the public response to the court. ñiçóby far the most likely is tt the case getsñiñi decided,ñpáhes immediate anchor, and it drops çóquietly into the ocean. there are many controversial things causing a blitz in the media, people are unhappy, and

we go about our business. particularly now, people are willing to let the supreme court decides thingsñi. the second thing would be that the journalist would say the have legs. they care about this decision, maybe the court decides other campaign finance decisions that rile people up, and it becomes an issue, and our hands are tiedçó, weñi cannot pass the las that franken or othersçóñr wanto pass, and over the course of the debate, if you could become so controversial it is mentioned in campaigns, as justices retire, when we pick new ones the president picks justices based on their views about campaign finance and will ultimately see some change in the wall. so that is what happened with roe versus wade. it gotxd decided and mobilized

pro-life movement's against the decision for abortion rights, an áñçóñi campaigns, and 20 years later the supreme court decides planned parenthood versus casey, which skills it back significantly. so the national debate shows a change in what the constitution means. but the lowest probability that it will happen, this was the first of a series of decisions but the court takes that really go face-to-face with the current administration on particular issues. they will strike down the decision on firms, saying it is unconstitutional, and we get a sense court is against the government of the agenda. they are worried about corporations, but court is going

against it, and it is a controversy not about the board decision, but going against the people want. that happened in 1937 during the new deal quite dramatically. franklin roosevelt was president and congress was passing legislation, not clear whether it would make a difference, but people thought it was important report keeps striking it down, people wonder what to do with the court, and roosevelt suggests forcing the court's hand by proposing packing it to change the outcome of the decision. there is this huge debate or five months, pta meetings, everybody is mesmerized, but ultimately everyone comes down against the court, but not before it considers with the government and people want.

we get a campaign finance change, and that is the process by which public views become substantial into the constitution. >> i would like to talk about a third possibility. we called the most dramatic possibility. is it conceivable we could in 2010 or 2011 have a reprieve of 1937 with our popular democratic president taking on obstructionist conservative supreme court? this would be a rare thing in american history. i love the fact that stefan described by boat in his introduction as the most dramatic, democratic branch, taking an argument that for most of its history, the court has tried to reflect public opinion, not challenge it. i agree that a full-blown confrontation may be not

materialize, but even a partial confrontation may have political repercussions that could be dramatic, and to think through what would happen, it seems to me we have to distinguish between two types of conservatives on the court that defined american politics. call them, for simplicity's sake, pro-business conservatives and that libertarians. the pro-business conservatives are not totally deregulatory, but they believe the unified interest in american business. they are represented by the chamber of commerce, which won 13 out of 15 cases in the 2006 term. they are not opposed to something like tarp, and believe in economic recovery. what they do not like as regulation by litigation. they want to strike down

shareholder suits that have huge success, justices like sam roberts and judge alito. they like federal pre-emption to strike down jury critics with large medical malpractice suits, but they are pro-business. on the other hand, there are libertarian conservatives like the cato institute and institute for justice that want to strike a stake through the heart of the regulatory. it has been dormant since the 1937, restrictions on congress' power to regulate interstate commerce, the congress cannot delegate power without intolerable standards provided -- these are libertarians who have already filed lawsuits. freedom works, the same umbrella groups that organized tea

parties, have challenged the tarp as an unconstitutional delegation of congressional power, resurrecting this new deal thing. are they going before the supreme court? i do not think so. so who is the only sympathetic justice? you have to guess. scalia is a good guess, but it turns out that he defected away from the libertarian camp with a case called gonzales, 2006, basically a 6-3 majority saying side and say medical marijuana is ok, and libertarians were distressed about this, but it turns out that scalia is more of a hamiltonian nationalist conservative, and i do not think he would actually drive a stake through the heart of the new deal. so it is not solely a. clarence thomas is the only

justice who might be sympathetic. he has expressed sympathy in cases like regulating guns in schools. he would not want to resurrect this understanding. he is barry friedman's analogue of the four horsemen who went to challenge roosevelt. so i do not think there will be a majority for a full-blown confrontation, but that does not mean that the court might bought an average monthly stumble into a confrontation with the president that is -- might not stumble into a confrontation that is more volatile than you could imagine. you look at the citizens united case, and unites the libertarians in the central figure of anthony kennedy. he is a judicial supremacy just. he is more willing to strike down federal and state laws and any other -- than any other justice. in 2003 he voted to strike down more laws than any other

ñijustice, and has a romantic ñrnotion of individual liberty that might lead him to strike down the financial accountability portñiñiñr -- bo. imagine it is one decision or to dip below decisions, and later terms call in to strike down be accountability. he would probably think of himself as being moderate, picking and choosing. there are now unanimous opinions to uniteñrñrñr, and heok thinksd be polarized. with citizens united, it would be more important to not be restrained. so it might not be a challenge for the pair, the financial accountability board. ñiwith the definitive history of the relationship, it only takes a couple of high-profile

decisions to provoke a presidential attack. so in the new deal, we think about the provisions for the national industrial recovery act, and we forget many decisions were upheld. ñithe monetary policy,ñiñr onceu have people attacking the supreme court, as both obama and roosevelt did, this would provoke a public response that they could not begin to imagine, because one thing they are not good at is anticipating effects of their decision. so this court is full of fire. it is playing a dangerous game

to even a vote a popular president on issues the majority of the country cares intensely about. we have seen this narrative many times before and it rarely ends well. ñi>> let me just jump in. give us your take. ñi>> on jeff's comments, i agree with justice scalia, but i did not know about the leto. so this is all right. if the court revokes the administration, they will pay a price, that is the lesson of various books, that the court will ultimately deferred back, but i want to push a little on that, because i do not think you struggled sufficiently with this point in the book. we have a point that refers to

this court, and is that preferable to a judicial supremacist court? what do we get out of that? why do we have record? >> it is not only a terrific question, but the right question. i try to say this at the end of the book, which is as you read your way through american history, people attacked the court and say, you know, what do we do about this court, and there is tremendous anxiety about an undemocratic court. here we are in democracy, but you do not vote for dark axises -- justices. we are stuck with them. people get upset about this, and this is precisely what is britain, to say that this is the wrong word, and the truth of the matter is we have ways of getting to the court and the court is responsive. once you get a sweep of that -- >> you solve the egalitarian problem.

the court is not a majority body for very long. it becomes one, it becomes a submissive body, a meat body, a different body, what good is that for democracy? >> the other story you hear is that this is a body that will protect individual liberties and constitutional rights, so how does it do that? so to use the analogy of a leash or bungee cord, it has a certain amount of room to room, but at some point if it runs too far, it gets too far out of public opinion, it gets snapped back. the interesting question on the social science, clear answers, when and how is this independence from the court? i will point out that until citizens united, the roberts court had done a tremendous amount of pushing along the conservative agenda, but they

had done it very quietly. so there are ways the courts can do things. when the trumpet sounds and they go face-to-face with something the public cares about, they are record to get in trouble. they do it quietly and sutley, and there will be no room to go around. >> let's move down to the central question here. how the american people expressed their response to the court, and how does that translate into judicial outcomes? we have a referendum on the obama administration in the state of massachusetts, and one could say the administration has failed. so the american people had begun reacting to the president, but suppose thatñr the president has come to talk about it with citizens united.

how does that make a difference? >> these are two different outcomes. with congress and the president, for all the bad things that have happened over history, stripping the jurisdiction, it can stir the up to do that. the public is an outer shell. i think they are cautious.

they read the stories of people who are not activists of all but they heard about roe and were shot there is a right to abortion, mobilized, organized from the bottom up. the next thing you know, there is a vibrant offered. >> this has been mentioned not just by united but also by the roberts corp., assuming constitutional customer >> their house, where people are energized. thereçó are organizations who ae energizing them. the remarkable thing is that obama understands the message of barry friedman's book.

if you read model answers for students, me and all of my colleagues were put to shame. they were more careful and well thought out than anything i have ever produced. but he argues on his chapter in the constitution in his book of liberals have recently relied on the fiction that eight supremacist court battles for them. most civil liberties have come from the bottom up. the reconstruction republicans after the civil war and before came up with the idea you could only ban speech in a period of danger. it took the supreme court 100 years to codify that principle

into wall. so if we're talking about liberals, no. çófree-speech, a quality has coe more from political after d --y q%1h!13e more from úo ñiçóçóthey are thwarting progree walk, rather than advancing it. they can codify in principle after it is accepted by the country, pushing ahead. you have to protect speech in those circumstances, we can codify that into law.

but it is a fiction. obama gets it, and barry friedman gets it, to imagine that they are creating these legislations. >> i think the court gets it, and citizens united is a great example. there were several opinion polls down on campaign financing, and we learned two contrary things about the public. they value free speech, but the other thing is they want limits on campaign contribution. so if you look at the supreme court's's decision, and people have done analyses of the decision, how did kennedy frame and? the free speech, free speech, free speech. very little on corruption. those words we do not want to share. so they are good at framing decisions that will attack

public support -- attract public support, as well. >> we had an interesting and judicial reaction to the supreme court opinion with this past week. the court of appeals from the district of columbia held a hearing, an hour-long hearing in a new case, the speech now case, which attempts to take the citizens united decision and move it back towards analysis of the constitutionality of contributions in campaigns. and it was interesting because the present the judge of the d.c. circuit opened the hearing by saying to the council for the organization looking for more freedom, do you have anything to add to justice kennedy? the point being that already,

the lower judiciary has processed and is beginning to, i think, anticipate expanding into other realms. so the controversy, if there is one in response to citizens united, is going to be exaggerating very quickly. >> he wouldn't hesitate to expand broadly. it is a kind of libertarian conservatives who would strike down new deal regulatory standards, and you think, aren't judge is supposed to be principled? it clearly does:the question expenditure contributions, and

be principled. barry friedman says no. the question is, what would john roberts do about this, when at the end of his first term he said that he feared they were acting like law professors, and that law professors would be terrible justices. i had to convince my colleagues that sometimes you have to be pragmatic and think that the country is ready for this, it will not attract big support. and i think roberts is a barry friedman-like justice. there are plenty of conservatives to agree that corporations should have broad protection, but when you are a judge, you face the possibility that a majority of the country does not agree with you. the pragmatic thing to do is

restrain yourself. be modest. do not put your principle to its conclusion. so i like that, because it seems that it is generally good for liberty to be defended. >> is a very effective strategy with judges who do not want to wade through hundreds of pages of opinion but one the restraint, pragmatic, for it to go both ways. i think that it works. >> it is important to emphasize the importance of the lower court, and i think president obama understands my book. justice kennedy, somebody gave them a copy. i do not know if he has read it. >> nixon, earl warren -- they

got it too. [laughter] >> things happen in the lower court after the supreme court decides the case. if anybody thinks they have the right of their own and the public, i agree with the justice that it is good to be cautious. i want to cite that they say it is good to be chromatic -- pragmatic, but there is the story about the constitution, that they are protected. after all, that is the point of having a constitution. a lot of that happens and the lower courts. there are things that officials do, police officers do, they infringe on rights and get litigated with the justice, and so that is an essential part of

the system. it is just different at the supreme court. it is not a court like other courts. it is a political accord. it is part of government. >> game marriage, which is going on right now. the constitution defense game marriage. and if you are in california, it will provoke a backlash, prop. 8 will clash, and it will set back politics and you are afraid that it might have led to the election of president bush rather than john kerry because it made a difference in ohio or pennsylvania. so you are literally torn between your commitment to principle on one hand and more pragmatic judgment that there

will be a backlash. what you do? >> after finished writing this book, one of my colleagues came into my office, having given me a hard time when i was writing the book, and he said, this is a splendid book. i wish you had not written it. and i looked and said, really, i understand what you mean. i am not sure i want any judge to be seen in his or her chambers saying how will it look in the papers when i decide the case, and i like the idea also that the judge hears the evidence and decides. the problem is the backlash, and it is no different for the judiciary than anyone else. so there has been a lot of debate about this game marriage because many gay-rights activists feel it is a huge mistake. the worst that could happen as

we could force this issue before it is ripe and ready, and then, you know, the court decides, well, the public is not here, and you get other movements pushed back. one of the best things that happened for the movement was ballard versus hardwick, where the court decides the case and says, you know, there is no right to sodomy and these laws are constitutional, and it is that decision that so struck at the height of the aids epidemic, you could predict what the court would do if you read the book, but at that moment, you know, the gay rights movement really engages in the country engages and we get this huge debate and 20 years later the court reverses and we are where we are now. >> in this area, may be gay marriage is a peculiar example. but the public has already spoken. state after state after state,

legislation, the state legislatures have responded and to change their own constitution to match. so what message does judge walker, sitting in san francisco now with the case before him, how does he read what has happened already in those countries in terms of expressing a political sentiment on this issue? >> people have mentioned the scopes monkey trial, and it is the same. we're having a trial about a contest that fact. it is not like a car runs through the intersection when the light is red. you have a history of gay- rights, and it is and add -- odd question to decide after hearing this testimony, but you are right.

i never say on the book that it should be, and that is a complicated question. but the court coming into overtime with the considered views of the people, if you had time to debate, that is ok. but i think it is not45q1e gay marriage. >> on the other hand, i think, and you put this out in your book and we could all think of examples where the court has not been timid or meat, or to use your metaphor, it has stretched that bungee cord as far as it will go. so one question i think for both of you is, when does the court take that risk? >> it is a case for everybody, brown versus education.

brown was not on popular when it appeared. it was supported by 54% and opposed intensely by southern minorities who opposed congress. it was supported by the truman administration and even the eisenhower administration, although eisenhower was a more supportive proponent behind the scenes. it was not a complete story. it was not until 10 years leader until the sun -- civil- rights movement, that meaningful desegregation actually occurred. >> that is fair, but only fair to a point. relative to something like sex discrimination, but court was the head of the curb -- the court was the head of the curve. in sex discrimination, it was behind the curve considerably.

so what kind of issues is to court willing to throw out a little bit? is gay-rights one of those issues? i do not know. >> let's turn to a different one. the war in terrorism. where is that? the court let way out in front. four or five times, the court has told congress and the executive that we are not going to allow you to treat terrorism suspects as you please come and get one supposes if there is any prevailing sentiment out there in the general public, it is one of fear, of anxiety, of these people who somebody wants to bring into our midst, talking about the government reconsidering have a trial of 9/11 terrorists in new york city and the reaction to the political response.

obviously, with the assistance of creative lawyers, they leapt out in front of what appears to be an incentive. >> i am not sure i agree with that. i think it is complicated. but let me just point out that when we get the be original decisions out of the court about guantanamo and they are against yet mr. should come and you might ask why is the conservative court and administration against, you remember the oral arguments in the case with the inspector general for the united states is saying we do not torture, and everybody watched the abu ghraib video that night on the news. that was a turning point of that particular issue in the public mind, and you see this again in the court issued. criminal procedure and death penalty, and what you learn is many years now, most of what happens is criminal defendants

in the court. there are deftly cases going one particular way, search and seizure cases. what is going on? you realize that racial profiling is going on, the innocence project is going on, and they are concerned about executing somebody who might be innocent spirited it is nuanced. -- who might be innocent. it is nuanced. >> but the point with xdcongressional and national reaction, when the president says he can do this on his own, he says, can do that with congress. usually the court is deferential. withxdok japanese internment, wt was -- it was authorized by

roosevelt and congress, as opposed to indefinite internment authorized by military commanders in the field. recent cases, they were going to go to congress and get support. then president bush did that and the military commissions act got to say you could suspend habeas corpus for combatants abroad, and justice kennedy, the supremacist, the anti barry friedman justice -- i am sorry he did not read your book carefully, but he does not care a whit from that. the court should do the right thing. he strikes downçó at military commission, saying to you have to have habeas rights. -- saying that you have to have habeas rights. we have a president who campaigned on the idea guantanamo had to close, who disappointed many of the left by not being as pure on these issues as they hoped, but did not go after the court. and that is what happened in the warren court. many of their criminal procedure decisions were popular

with the country as a whole. you have to have a lawyer? that was not unpopular. is not until president nixon gets up in 1968 and runs against the warren court and criminal forces that he can mobilize the backlash and maybe justice at kennedy is safe as long as obama >> he has to wait a bit. whether or not his book will be ;museum kiosk. because no book about court is sold in that kiosk and less the nine justices signed up on it. and currently, the new book about cilia -- scalia, an excellent biography, is still not available in the supreme court kiosk because justice scalia has not yet signed off on it. [laughter] so there is a way by which the

justices -- just as kennedy perhaps is going to veto barry's book going in there, but let's hope that it does not -- >> i am sympathetic to this point about the terrorism case. you can slice and dice this, explained that it was not the mainstream, we had an unpopular president, we could offer lots and lots of explanations, but ñiultimately, barry, i think it comes down to this. you have a theory about the way that the court works and the public works, and so, what would be against your theory? if the terrorism is not an example of that. >> evidence against my theory, i always tell people it is a question of how we falsified the theory, and it is probably good to have a theory of everything works with. [laughter] ñibut falsifying my theory would

look like the courts standing firm for some time in terms of an agreed public opinion, where the public is really angry about something and the public stands firm. it is hard to think of examples it is hahat.%"tñri welcome them. >> it is pretty clear that at least the class's have undertaken to condemn the court for terrorism. peter king, for example, it just introduced legislation to prevent any federal funds being used to try any terror suspectxd on the soil of an american continent. the political class's made their statement. are they thinking of this larger, disorganized public? or not. >> they introduced bills. there were a lot after laws

were stricken down, but they did not have a constitutional amendment at that point. they did not have daschle majorities. they do not control congress right now. so you need sustained opposition. and i want tou% reinforceñrñrt is incredible how fast accord response. áid issues opinions against the mccarthy at national stir the investigation, a huge congressional response, and within two years the court reverses itself and the "new achieved on their own. they are very good at beating a hasty retreat. >> they did stick their ground

on the terror casesñiñi, and wed not see that kind of backlash barry talks about. çóñrñiññrñrñi>> let's again reto the book and ask the question, after the things we have been talking about, is judicial review now greater or lesser than it was just before citizens united? has the instant reaction to that, when any of these major controversial decisions came back and came down, does the instant reaction actually have any affect on the source of judicial review and the expense? doesn't really change? your thesis is that judicial review is healthy and survives because it is popular. >> as you said, it is a very

long book, because it covers all of american history. what i want to say is that the court is infinitely stronger now than it was at the beginning of the nation's history, but the nation walked through this remarkable process, a time where the most common thing that happened, people defy it. people took the death penalty case from georgia, state the execution, and george agreed to hang to die anyway. -- george agree to hang the man anyway. -- georgia agreed to execute the man anyway. it was not the profound respect for the court we have today. and now that jeff has put me on his team, i would like to say

for a moment that justices sometimes are more skittish than they actually need to be. there is a great sense of appreciation, meaning we will stick with the court if we do not like the decisions. there is always a strong movement toward an independent judiciary and a backlash against a backlash against a court. >> i think that is an important point. we talk about what is in it for the public with regard to that judicial view, what is in it for the court? if justices are simply going to sit there and rubberstamp public opinion, who wants to be a justice, really? [laughter] go to the house of representatives or something.

>> talk about paper trail. >> at some point, this has to be about building trust and good will over time so there can be the occasional disruption. that has got to be. just lengthening that bungee cord. >> let me throw him overboard, also. there are things here that are hard to fathom. so will the backlash effect be different now? we are in the media environment. five years ago if the justice rolled his eyes at the state of the union, that would not be instantly broadcast live and commented on. what areñi the effects of the response to the i role? that is a question of temperament, of psychology. some people are defensive, and

being criticized might get them up and make them determined to stick to their guns. and i get a case of your role as a justice being linked to a particularly made a commitment to say jurisprudence and conditional understanding or textualism, there is a big difference on the court between formalist and pragmatist justices, and justice alito is not all that pragmatic. so you do have times in history where particular justice to stick it out. it is a matter of psychology and happenstance. broglie, things tend to wash out. but there are pressure points, not because of the happenstance. so it is completely possible. i was given an account of how to pick and choose, they might just shut themselves up. they could be clumsy about it and think as the new deal people did, we are going to save the

country for itself, as justice reynolds did. the constitution is gone, shame and humiliation are upon us. those are words from the bench. >> we suppose that he did become instantly aware of his new celebrity, because we put the video clips in response to the president's response, and he may have just been suffering some drastic ups that -- gastric up set, but recently he became a new celebrity, and people in this country, everybody, the people in this country who have encountered him for the first time, he is not a highly visible member of the court. now he is, and the point is,

what kind of response is there from his colleagues on the bench? bringing the question back to the foundation question, does that kind of an incident, does that change in the public perception of judgment, insensitivity? does it change the core's capacity to be the ultimate expositor? to what lengths will the court go to protect its prerogative of being the last word on the constitution? are we talking about that? we are. and when the public reacts, as you have suggested, has the court at any point -- and it has -- currently lost the ultimate control over constitutional meaning. when that happens, does it regain it only by withdrawing?

does it surrender? that is what this is all about. >> it for me, the book is ever- changing. it never sits still. there is always a reaction to move things along. all the way back to john marshall during marbury versus madison, he writes a letter saying, you know, maybe we should give up this thing just to keep our independence, and during the reconstruction when the courts have the case going to strike down southern ñrreconstruction,ok congress bas away and says we cannot do this. so the ebbs and flows you see all the time, maybe there will be even another chapter. >> is a wonderful question, i think, and barry tells a story

çó review be excessiveok. çóñijujr "empire ofñi libertyxd," tells a similar story -- gordon wood. ourt realize they can nowood. longer be perceived as political if they want to get away with this power of judicial review. so they start acting legally, and lots of different ways, and that is one of the reasons the xdxdreviewñi gets accepted strategies to do."i it, but thas the bottom line. ñrñiñrñiñiñrñ2ó>> judicialçó rl ñrñiñrñiñiñrñ2ó>> judicialçó rl ñiñrçóñientirely intact? otherwise. çóabsolutely. ñi>> a constantly changes. isn't the alternative way of perceiving this, it never

changes, the cycles are the same, but court stretches the bungee cord and then retracts in response to the public. the public than reaffirms its favor of judicial review, the court goes back to being the ultimate expositor of constitutional meaning. so this is what it is all about. it will not change. it is how we can look forward, or can we look forward to a time when it would not change, when it would in fact be well in pared in a lasting way. >> ultimate expositor might be too strong, since the claim from marshall on word was that the court had concurrent authority to the constitution, and there are times in history when they were more willing to debate

constitutional terms. lincoln made convincing arguments, and roosevelt, also, gave his meaning of the constitution. politicians have gotten out of the habit of doing that and what to pass the buck to the court. it would be good to see an energized party take on the court on constitutional terms. >> burns, in his book on review, in his concluding chapter encourages the president to directly confront and say no when the court has issued an opinion that is subjected to. i think what obama did this week in the state of the union is not the equivalent of saying no to the court. in fact, there was this just for of respect for the court's authority, and the president

came in. so we are not likely to see from this president a direct confrontation, a refusal to abide. >> you never know. i agree that things take on all life of their own and all of the sudden you have history and realize that people never go up, and that is the way it is. i do want to say one thing, my happy story of the book is that this process of confrontation back-and-forth, that goes on and it's still all changes the fundamental way of as it goes on, but the most important thing for me is that it gauges all of the american public to think about these questions, so i think it is wrong to think about the constitution about being alone just by the supreme court. it is our constitution. it is over 200 to two years old. it certainly says things today we did not mean at the time it was written, and the only way that it has fundamental meaning

as people think about it. so there are questions, is their right to abortion in the constitution, how does it apply to terrorism? >> at this point i would like to ask jeff to jump in and tell us how goes the movement to take a constitutional way from the court. people like gary ackerman at yale and levenson at texas, larry kramer at stanford, jeff rosen at gw, members of the leading constitutional academics in this country are trying with considerable energy to take the constitution away from the court. how's that going? >> i would not take a constitutional way from the court. -- i would not say to take a constitution away from the court. it is about the argument barry is making, popular constitutionalism, democratic constitutionalism.

but if you think that it is wrong, and generally constitutional values have risen from popular mobilization rather than just judicial decisions, there are a lot of interesting differences about how aggressive or restraint courts should be, and the current buzzword among liberal circles in the american constitutional society is democratic constitutionalism, and the point here is not that the court should be completely restrained and let the people do everything, but they should be modestly interventional list, moving away from the public occasionally, like women's rights, pushing back when people get in, but basically engaging in a dialogue with people, and different people come up on different sides about how interventionist the court should be. in terms of taking the constitution away, we mentioned one author who does in his book take a radical position the president literally should refuse to obey supreme court

decisions with which she disagrees. there is a tradition of this radical miles an. robert bork raised this after his defeat. he thought that maybe the people should be able to overturn decisions that they disagree with. during the progressive era, there was a suggestion of majority or two-thirds vote overturning. so you do not have to buy the descriptive story to think that the judges have no role at all. çó>> let's think about ways we n change it. the court has interpreted the constitution, and now i have interpreted the constitution and i disagree with the court, and we are going to go on my interpretation, not the