join our 3-our conversation with t.r. reid and your phone calls live on sunday at noon eastern on c-span 2. now steny hoyer speaks on fiscal responsibility and a new commission charged with recommending ways to reduce the federal deficit. he was at the brookings institution for 45 minutes. . >> mr. haskins is in charge of hyperbole at brookings. thank you so much. i am pleased to be here. brookings' does such extraordinary work. extraordinary work. i want to thank my good frie

alice rivlin for being here. i m on opposite sides of the political aisle but not on opposite sides of this issue. t,m mann, thank you for being here and helping people understand the body of congress that sometimes is difficult to understand even from the inside, much less the outside. thank you all for giving me some of your time this afternoon. never in my decades in congress have seen a public so outraged by deficits and debt. at this moment, this is a moment of historic opportunity. we can waste it on opportunism and slogans and symbolic solutions or we can dedicate ourselves to the painful, un glamorous decisions of fiscal

discipline. we can choose to hang together or we can hang separately. i believe and hope and expect that we will hang together. the consequences of failure are dramatic enough to concentrate the mind of even the most dedicated senate. it is enough to say that by the time my grandchildren and great- granddaughter's are in college, our debt will exceed our gdp we will owe more money than the value of our entire country. it is enough to realize that by then our government will exist to do only two things -- pay for entitlements and pay interest on our debts. there was nothing left over for our nation's defense, our children's education, in a bit of scientific research, or any other critical investments that keep america the home of freedom and opportunity to is he not to look across the atlantic at the extreme crisis in greece to

understand that it can happen here. if we do not change our course, it will happen here. when you look it eight centuries of a financial crisis, an economist from the center of intellectual knowledge at the university of maryland -- i am into hyperbole myself -- america is no exception to the lot of debt. they point out that economic contractions are followed by budget crises that devin prosperity and a stalled recovery. "if there is one common theme to the vast range of crises, is that excess of debt accumulation often poses greater systemic risk that it seemed

during a boom. government debt is the unifying problem." m, the common symptom of decline." the economists add that public debt of 90% to gdp a tipping point. senator, -- senator tom coburn made that same point earlier this week. they go on to say that this is how empire's decline. historian neall ferguson said that. this is our turning point and choice, the point where we join the debt ridden hours that saw their own fiscal ruin or the point in which we as a nation refuse that and write a new chapter. it is a waste of time for us to hand out blame. there's only one constructive

reason to look back at what is -- at what got us here and that is to identify the kind of things we need to avoid that is why there is harm and the mindset. this draws exactly the wrong lessons that do much to repeat the cynics -- same mistakes. asserting that the deficit is the result of policies enacced since president barack obama took office is orwellian. the recovery act has saved 2 million jobs according to the cbo, but it has only contributed fractionally to the deficit. ithe tax cuts enacted under

president bush, the wars in afghanistan and iraq, and the economic downturn explain the entire deficit over the next 10 years. the most important lesson we can drop in the years of recklessness is this, when it comes to budgeting, what is politically easy is often fiscally deadly. it is easier to pay for tax cuts with borrowed money than with lower spending. it is easier to hide the true cost of war then delayed those costs before the people. it is easier to promised special cost-of-living adjustments that explain why an increase is not justified. it is easier to promise 95% of americans that we will not consider raising their taxes and then ask all americans to contribute for the common good. those kinds of easy choices are so often selfish choices that they leave the chore of cleaning up to someone else easy choices may be popular but the

popularity is bought on credit. the behavior in washington will only change with the incentive to change. when voters remain -- demand more responsibility. i am hopeful that is just what is happening today. the public has a responsibility to educate itself about the sources of the deficit and the brains of realistic solutions. they should not demand that government escalate entitlement payments and increase the deficit at the same time. the public must be ready to confront tough choices and leaders in both parties are -- need to be ready to be honest about those tough choices. when deficit solutions meet resistance, which they will, and when they are painful, which they will be, it is our job to explain why they are also correct and absolutely

essential. i believe we have a president and a congress that can and will take that responsibility seriously. president barack obama and congress have taken four major steps to return our country to fiscal health. president barack obama proposed a budget that would cut our deficit in half by 2013. it is perhaps more conceptual than real at this point but it will be released show courage in congress. it also contains a freeze on non-discretionary spending that will force congress to identify priorities. less discretionary spending will barely put a dent in the deficit, however. that focuses on approximately 14% of the budget that confronts us. alan simpson explained," to say that all we have to do is take care of waste, fraud, and abuse and foreign aid is like a

sparrow flying in the middle of a typhoon." colorful and correct. her willingness to curtail the growth of programs we value is powerful evidence that washington will tighten its belt before asking the public to do the same. defense spending is exempted from the freeze because we should insure that our men and women in uniform have the resources necessary to do their job while they're in harm's way. that does not mean that defense spending should be exempt from cuts where they do not undermine the mission. we have a set for our military. we must apply the same oversight to defense spending as we do to other discussion -- discretionary spending. that is why president barack obama signed a bill to reform weapons acquisition, bringing the process more competition and your conflicts of interest.

the gao report recently said that the 96 largest weapons systems that we have are responsible for $296 billion in cost overruns. that kind of defense waste only makes america weaker, not stronger in the long run. third, we continue to work to pass a health insurance reform bill that is debt -- not only deficit neutral but drives down the insurance cost of the single greatest driver of our deficit. it will be a big step but not the final step for only one. by insuring the fiscal sustainability of our entitlements for decades to come. the health care reform bill that passed the house and senate last year would be fully paid for in the first decade and reduce the deficit by approximately $1 trillion in the second decade. we have brought back to pay as

you go law. president clinton used paygo to create a surplus. that policy was adopted in a bipartisan way in 1990 and reaffirmed -- in a bipartisan way in 1997. as all of you know, it was waived and in 2003, it was reauthorize pretty decision by president bush and republican congress to do away with paygo through his back into the bread for a wet weather comes to cutting taxes or increasing medicare benefits, paygo value because it removes from the table the easy and usually unspoken solution that we would rather our children pay for it. i was brought to sponsor the paygo law.

this may not get us out of the whole but it will stop us from digging deeper. i think the attention given to the exemptions secure the importance of real discipline to new policies, the principle of paying what we buy for applies to health insurance reform and restraining spending. the requirement that we include tough choices to expand access to health insurance has made the task of passing the legislation harder but it will prevent congress from creating a large liability. the medicare prescription drug program that was enacted after statuary paygo left, created in unfunded liability of more than $7 trillion. congress will use the emergency

designation to provide for the extension of unemployment benefits and other safety net programs which have been traditionally designated as emergency spending during recessions. it seems to me that is for a program. we must work to -- it seems to me that is appropriate. cutting the deficit cannot struggle job creation. i have told my friends in the press that you cannot stimulate and depressed at the same time. we need to stimulate but we stimulate now without a thought to tomorrow's discipline that is essential, we will not serve either now or the future will. all of these steps are essential but they are not enough to return our budget to balance. president barack obama is creating a bipartisan fiscal commission. along with speaker pelosi and majority leader read, i pledge that we will get an up or down

vote in congress. we want a statutory provision that was unable to be passed assured that. senator harry reid, speaker nancy pelosi, and di, the commission must come to a consensus in congress must act on the proposals by the end of the year. the president has appointed two proven budget balancers. erskine blwles and alan simpson. i hope congressional republicans will take the work as sincerely and seriously as the chairman takes it. i hope my own colleagues will do so as well. they will come to the table without preconditions, ready to contribute their ideas and not just their criticisms from the sidelines. the commission has

i was disappointed to see that seven republicans, suppouvq)s of the commission bill including the minority leader, decided they were against it as soon as president obama in dorset. president reagan and speaker o neill work on social worker -- social security reform in the 1980's, and the republican reaction to the medicare changes in the health-care bill both teach the same lesson. the real work of cutting deficits is so easy to demagogue that rarely succeeds and will not succeed in my opinion unless you have support from both sides of the aisle. that is one of the reasons why the fiscal commission must not take any option off of the table, from raising revenues to cutting entitlement spending. that is why both parties have a duty to appoint members who are willing to compromise and as well make tough decisions. it is also clear to me that if

the count -- that if it takes a one-handed approach, it will fail both politically and substantively. politically and substantively. i want to say a word about the senator ryan's conscientious budget proposal. it relies entirely on cutting spending. he should be commended and i have commended him for putting together a serious and detailed plan to tackle the deficit. it does not raise a single tax but significantly changes medicare part c we can argue about that but what we ought not to argue about is that somebody has put on the table a very serious and politically risky proposal. that strikes me, in terms of cutting medicare to accomplish the objective without any thought of additional revenues from any source, it strikes me as very much the wrong solution.

the plan deserves respect for its honesty and he is one of the few members of his party were either party to tell the public exactly what he's got. as much as his party's leadership tries to distance itself, all right and's program is a logical outcome of the other party's rhetoric of cutting taxes and deficits at the same time. it seems to me that the only solution that can win this for both parties is a balanced approach, one that cuts some spending and raise some revenue while avoiding extremes in either direction. a balanced approach would sped the effects of change across american society rather than concentrate them simply on seniors. on the side of entitlement spending, americans are living

longer lives and raising the retirement age. you can peg the and retirement age to life span. another option is to make social security and medicare benefits progressive while strengthening the safety net of low-income americans. on the side of revenues, president barack obama was correct in my view in refusing to take any options off the commission's table. no one likes raising revenue. if you are going to buy, you need to pay. president clinton proposed an economic plan aimed at accomplishing fiscal balance. he paved the way for the greatest american prosperity in generations. he had a bipartisan tax compromise in 1986 which showed

the importance of a simplified, more efficient tax cut. if need be, i am hopeful that both parties will agree to look at revenues as far as a solution compromise that cuts spending and balances the budget. none of this is easy. it will take bipartisan trust. there is not much of that and supply nowadays pri presidential leadership, i think there is a lot of that and supplies. we need a public spirit that many assume is beyond america's breach in the year 2010. i do not share that sentiment. america has made a career of proving such cynicism long. as jim fallow said ,"when theodore roosevelt set aside land for national parks, when

dwight eisenhower created the pentagon research agency that gave rise to the internet, the american system seemed open to it. saving america from debt would be long next to those accomplishments because in every era, these very fiscal issues are among the greatest tests a nation can face. we are not the first great power to meet the challenges within and will not be the first to fail. spain, france, the ottoman empire, the british empire in the 1920's, all of them were crippled by borrowing, by interest payments, and by desperate we are not exempt." these are questions of national security and national success. in a democracy, there are questions of national character. they are not technical puzzles

for few of us in seminars, think tanks, and back rooms. they are a defining challenge for all of us. you hear commissions on the radio and the media and our willingness to face reality will be a measure of our character. our willingness to reject easy answers from our leaders is a measure of that character. our willingness to put the welfare of our children ahead of her own, to plant seeds for them for fruit they would never taste is a powerful test of our character. more than a wealth, more than might, those of virtues that have made america flourish. those are the virtues we need to meet that test. i can say with confidence that if we are unable to raise our heads even for a moment above the daily partisan bite, if the collapse comes, we will deserve

it. but, if we regain a measure of our lost trust and support one another through shared sacrifices and would turn our country to fiscal health and strength, we will deserve that as well. thank you very much. [applause] >> ok, i am taking questions, i am told. >> what about the crisis faced by people outside the beltway. unemployment benefits are being cut, medicare is being cut and

people continue to use -- lose their homes and jobs the obama answer in legislation discusses not to return to a national bank and its policies but make more cuts. how much longer do you think the population will tolerate these policies from obama and why shouldn't they asked for immediate impeachment? >> first of all, let me say something about president obama. president barack obama, in my opinion, probably took office and one of the most difficult times in our history since abraham lincoln. franklin roosevelt had a deep economic crisis he confronted but there were two aspects to that crisis. he did not have an international

crisis until his second term, until the middle to late 30's. secondly, he had a populace that was educated to the fact that he needed to take substantial action because this economic crisis that confronted them for 3.5 years needed to be dealt with. that was not true when president barack obama took office in january. most of america became convicted of the depth of the crisis only in september of 2008. that is when we passed the so- called tarp bill. i have called for bipartisanship to make tough decisions for it we hear a lot about the lack of bipartisanship in the congressman the from the minority party. i want you to recall the tarp bill and the secretary of the treasury, the president of

united states, and head of the federal reserve came to congress on thursday night in a congress led by democrats and said that we're confronting the crisis and if we do not act and act immediately, the fiscal crisis may well result in a depression. not a recession, but a depression. confronted with and administration, albeit of the other party that said we were in a crisis and having consulted many economists across the board of the depth of the crisis and convinced that it ministration's representative calculations were correct, the democratic leadership responded. we expanded the bill they sent us four or five times, it was a pretty short bill. $700 billion was put on the table. that bill passed only after the second effort, as you recall.

the president's own party did not support it. 1/3 of them did and almost half of them did the second time around. we passed that bill. the president took office and the economy was in very bad shape. there were 726,000 jobs being lost in three months prior to his taking office per month. the stock market was declining very rapidly. the gdp was in some of its lows to declines. in the last four quarters, we went from 726,000 unemployment 35,000 lost on average in the

last three months. that is progress but not success. it is not getting to plus of jobs. the clinton administration group 216,000 jobs per month, on average, in the 1990's. it creates and the best economic times this country has seen in terms of growth and expansion of the economy. those people had investments in the stock market and savings accounts, shortly after the passage of the american recovery and reinvest and act, it was down but now is up 65%. that is increase of well for people and their savings accounts. cheapie went from -6.4% 2 + 5.4%. that is in 12 months.

my view is that we have taken very substantial efforts to stabilize and to start growing the economy. statistically, we have done that but there are 8 million people who lost jobs. unemployment is still at 9.7%. that is way too high and that is why we continue to address job creation. we did that in september when we passed the jobs for main street act through the house. the senate has passed it smaller jobs bill. we are considering that this week and hope to pass something this week. certainly, it is not serious to say that anyone should consider impeaching this present who were

shown a great deal of courage and effectiveness in confronting a dire situation and he has taken a lot of heat for it. i think he will continued to stay focused on growing the economy and growing jobs. we have seen success. we have seen progress. success will be women get back to creating at least 100,000 jobs per month per that will keep us healthy. ha h>> i want to take you as wes president obama to have the courage to take on this issue. i think you guys in the house i think you guys in the house are doing a great job of the senate, not so much. i guess the question that i have

is, you know, on this as well as other issues -- one thing that i am struggling particularly with this issue is, if you guys do nothing, then the bush tax cuts expire, right? doesn't that give you some leverage to play a harder game, if you will, to get the agenda done? if president obama said i will veto any bill that extends the bush tax cuts unless it balances the budget over a period of time, when he then have the kind of hard leverage that would be needed -- would he not then have the kind of hard leverage that would be needed to build the trust, the bipartisan trust, that we need? and i say that not to be cynical. i just think that there needs to be all little bit of a helpful push to our republican friends to come to the table in good faith. >> that is a good premise.

ñrlet me address briefly the concern house members have and americans ought to have with the senate, and i want to say this in a constructive way. the senate was designed as a theoretically more thoughtful, measured body. it was originally presumed to represent not just the citizens of america but the states of america, and elected by the çóelected representatives of the people of the various states. it was then converted to a ñidirect-elect body in the early part of the last century. culturally, it conceives itself, however, in my view, as a group of one of the people each of whom has the opportunity to stop progress i don't think the founding fathers thought of it that way. last friday, one senator stood

in the way of what we had paestum unanimous consent with no boat. democrats and republicans agreed but for all intents and purposes, we believe that 99% of everyone thought we should extend unemployment insurance and co protection. there was a highway bill in their, and some other extensions, i don't think they will work in the bill but one senator objected. therefore, there are millions of people today at risk of not having the unemployment insurance or cobra. we need to do something about that as a people. the '70s to do something about it as a senate. it is unrelated to party. it happened to be a republican senator named bunning who is

he was worried about his grandchildren. he was worried about the costs senator durbin was concerned about the families who could not put food on their table. we have 280 bills or so. republicans and democrats in the house agree on is that the senate is a conservation at best. we have 270 bills that we best at 70% with more than 50 republicans that are still pending. >> in terms of encouraging our republican friends to come to the table, i think we want their

ideas. >> absolutely. >> one thought that i have this they are pushing for the bush tax cuts. i don't figure will do any good. >> because the tax cuts weren't paid for, the budget rules expire and because the budget required longer payout, this looks good and your budget. the president indicated that we would not raise taxes on middle- class. clearly in my view, we would not want to raise taxes on the middle class in a time of deep recession. families are stretched. we have no intention of doing that and still, we will continue that.

we specifically delineated middle-class. i think you will see the we will continue with the statutory pz aygo. is a political rationalization which i think is accurate. we would use them at baseline without having to raise additional taxes. you don't want to raise taxes because of where we are in this recession. what paygo does is focus the mind on having to pay for things like entitlements. it does not apply to

discretionary spending. as we move forward, and we keep statutory paygo, in fact, we will not fiscally -- pursue fiscally irresponsible positions. we don't have a balanced budget amendment. the only constraint upon the country as wealthy as america although we're getting to appoint where -- the political

constraint of my asking people to pay for what i am prepared to vote to buy. but take second straight away -- if i take that comes straight away, we started incurring substantial debts as we reduced revenues. we did not reduce commensurate spending. during the reagan and two bush administrations, we encourage -- incurred $4.80 trillion of operating expenses. in the clinton administration, we had $62.9 billion surplus. it is a different approach, paying for what you buy. we had a republican congress that did not want to spend a democratic president who did not

want to cut revenues. the combination got us to a very good balance. fiscal irresponsibility and regulatory neglect this last decade led us to a fiscal debacle in the private sector ended fiscal $1.50 trillion deficit up to 2008 and was exasperated by tarp. are we quit? >> this will be the last question. >> [laughter] you pick, alice rivlin. >> you spoke early in your talk about the anchor of the american public, about deficits and debt. what do you think it will take for -- to get the american public's understanding, what it

will take to bring those deficits -- deficits and debt to down. down? >> by dick ross perot made a wonderful contribution into the country in 1992. it was not until then the people started to focus on deficits. ross perot spent his own money to go on commercials and say we need to lift up code and find out what is wrong. people got focused on it. we got away from that focus. people were not as angry then as they are today. they are angrier today because they think much of the debt was the courage to give to which people.

hopefully, that will animate them to focus on what the real problem is of where we are today and how we will get to where we need to be. angkor can be a destructive -- a constructive motivator or a- impediment to figgie. let's hope -- or an independent -- an impediment to thinking. i have great respect for bill friendenzel and the had a real handle on what we should do it had the courage to stand up and say this is an american problem. we have to have a lot of built frenzels, a of alice rivlins, a

lot of barack obama stand up and say none of us believe these are easy answers or politically popular answers. but they are answers which will get us to a better place for our children and grandchildren and a stronger country in the long run and will be less dependent america on foreigners loaning us money when we have crises or when we do not have crises. when we do not have crises. thank you all very, very much [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> in a few moments, the cato institute preview of a supreme court argument in a guns rights case. and then the and in decency case that began with the so-called war -- or about function that began in late supreme -- and a super bowl of few years ago. and later, we will we hear the speech from majority leader steny hoyer on fiscal responsibility.

on "washington journal," we will take up the agenda up with jeff bingaman of the new mexico. howard rosen of the peterson institution for international economics will talk about unemployment insurance. our guests include roslyn barock, and we will look at the budget. "wanted -- "washington journal" is live every day at 7:00 a.m. eastern here on c-span. >> which four residents live past 90 years old? john adams, herbert hoover, ronald reagan, and gerald ford. find that these and other facts in c-span new book, "who is buried in grant's tomb?" >> i guidebook -- a guide book,

biographies of presidents, and you can tell a lot about a person about the end of their lives. >> an index of president to gravesides and insights about their lives. "who is buried in grant's tomb that ?" >> the supreme court hears a gun rights case tomorrow on how the second amendment may apply to cities and states. next, a preview of the case, mcdonald v. chicago. from the cato institute, this is 1.5 hours. >> i am roger pilon, and we're here to talk about a case that will be argued before the supreme court to mortar -- tomorrow morning, chicago v.

chicago. it is about the second amendment series that began a year ago. heller decision, in which the court decided for the first time that the right to keep and bear arms protect its your right not simply as a member of the militia but you're right as an individual to keep and bear arms. it was the first time that the court had decided that matter and we now have the question before us, does this right applied then to states? d.c. v. heller was brought against the district columbia. the issue lies before us because the bill of rights was originally written as applied against the federal government. not until the ratification of

the 14th amendment in 1868 to the bill of rights apply against the states. and then it became a question of what rights in the bill of rights were applicable against the states. the unfortunate event that followed five years after ratification was the slaughterhouse cases. the court eviscerated the privileges or immunities clause from the 14th amendment, and thereby they would try to do this under the less active to substance -- substantive due process clause. it became a very vexing issue thereafter. it emerged for example in the series of substantive due process, which have given many conservatives including those on the court sleepless nights because they see it as an opportunity for judicial

mischief, defined rights know where included that in late -- not even in our unenumerated rights. the court tomorrow faces the question, not simply does the second amendment apply against the states, but what -- but what -- on what grounds the second amendment applies against the states. there will find that the amendment does apply and so draconian statutes like that in chicago willñi be found to be unconstitutional. after all, when the key purposes of the 14th amendment ratified at the height of reconstruction in 1868 was to allow the newly freed slaves and white unionists to defend themselves -- to defend themselves against southern reprisals by protecting their right to keep and bear arms. the second question tomorrow

will be whether this will be decided under the doug kendall -- due process clause, or under the privileges or immunities clause -- will the court for the first time since 1873 revise the privileges or a minute because and provide for a wider array of rice to be protected against the state? in particular, various economic liberties, and that is one of the issues that we will discuss in this forum today. we have three experts that i am going introduce just before they speak. we are going to start with tim sandefur who wrote the brief that the cato institute filed in mcdonald v. chicago. he is also an adjunct scholar here at the cato institute.

he is the lead attorney in the economic liberty project and works to protect businesses against the abuse of government regulation. he also works to prevent other abuses, have been litigated other important element at domaine cases and having filed briefs in many significant eminent domain cases. he is a writer. one of his books was published by the cato institute in 2006 and he has published many scholarly articles along the way on a wide range of issues, from eminent domain to copyright issues and the civil war. he is also a contributing editor to "liberty" magazine, and has written for many magazines.

in february 2006, tim became one of the young this attorneys ever featured on the cover of "california lawyer magazine." he is a frequent guest of television programs. he is now with booktv and a graduate of hillsdale college and the chapman university school of law. please welcome tim sandefur. >> thank you very much. i would like to talk more generally, not particularly about gun rights, but the more abstract constitutional issues involved in the macdonald case. this is one of the casesñr where if the supreme court goes the way i hope it goes, 10 years from now we will look on this is one of the major decisions of the u.s. supreme court.

understanding the issues in this case requires us to examine some issues of constitutional structure and political philosophy. the 14th amendment was intended to be the final word in the debate over the nature of individual rights and the relationship to federalism that had occupied the 19th century. that debate was ultimately the cause of the civil war, and at the end of that war, the leaders of the victorious union, the republican party, wrote the fifth band -- the 15th amendment to make their model of sovereignty and individual rights to a permanent part of the american constitution. as with all things and intellectual history, it is hard to categorize that uniquely, but i will do this by labeling the two sides of the debate the states' rights view and the republican view.

it is as good a term as any. as i explain it in the brief, and i brought copies of this for everybody. if we have run out or four members of the television community, send us an e-mail and i would be happy to send you one. as i explained at great length in the article, the conflict between these two groups date back to a debate between john locke and william blackstone on the limits of sovereignty. according to a locke, government is limited to natural rights. what we can form a government to protect our rights, governmental powers are limited by those rights. no government may provide us -- deprive us and justly. as james madison put it, this is vested in and exercisable and

shop about a majority, anything done by the unanimous concurrence to reserve the rights of individuals and becoming party to the original compact seem beyond the legitimate reach of sovereignty however viewed. on the other side was william blackstone writing in 1762 explicitly rejected this theory. he argued that parliament sovereignty was "supreme, irresistible, absolute, and resistible authority." it is not surprising that near the end of his life, thomas jefferson expressed some concern over the increasing popularity of blackstone. before the revolution, he wrote in his last letter to james madison," our lawyers were then all whigs, but when the honeyed

words of blackstone became known, the country began to slide toward toryism." that began to form a light at. that on separating from england, parliament's absolute authority would to the states -- went to the states. it was limited not to the natural rights of individuals, a convenient ideas for defenders of slavery to embrace. opposed to the state rights theories were the classic liberal so would form the republican party. john lindsay -- john quincy adams served in the house of representatives after being president and became the leader of anti-slavery movement and congress. he published a series of monographs touching on the

political and legal implications of the declaration of independence and its natural rights philosophy. john quincy adams believed that the declaration is not just political rhetoric but a binding legal document. part of the an organic law of united states. get set limits on the powers of the state and national governments. he explicitly dismissed blackstone's notion as a hallucination. "sovereignty dust of find it is in direct contradiction to the declaration of independence and incompatible with the nature of our institution." the state rights doctrine that he was arguing against threatened to render the declaration of independence "a dream." and it could travel through impunity to the ages at the end

terminal or exterminating war with one another upon on a legal rights of man. john quincy adams was enormously influential among anti-slavery leaders. adams served in congress with the little-known illinois congressman, abraham lincoln. but from the followers of blackstone and locke were arguing also over the location of sovereignty. a treaty among sovereign states, among the most important achievements was to replace that model with a single unified national model. under the articles of congress's powers, they had been delegated -- the articles of

confederation, they had been delegated. but beginning in the 19th century, proslavery politicians led primarily by john c. calhoun devised a constitutional theory to resist federal power and rising anti-slavery opinion which denied the federal government was sovereign and held instead that the states alone were sovereign and that the federal constitution was still a treaty of funds -- of sovereign states. if you combine these two, the idea that states power is supreme and irresistible and that the federal constitution is a treaty among sovereign states, you have our recipe for totalitarianism. state governments put no practical limit on what they could do to their people. this was the argument of the states rights party including a man named jeremiah black, the chief justice for the state of pennsylvania.

in 1853, he issued a opinion that really articulated this national rights. very clearly. he wrote, "the transcendent power of the parliament transferred to the states enjoyed supreme and unlimited power. if the people of pennsylvania had given all the authority to a single person, that would have created a despotism as strong as that of the russian autocrat." they conceded that some of the power had been given over, but their use of that power was limited on late by their own discretion. chief justice black left his seat as the chief justice of the pennsylvania supreme court and was appointed united states attorney general by his fellow pennsylvanian, and james

buchanan. he began to make those same arguments. moral abstractions do not limit the legal authority of the sovereign. no government ought to violate justice, but no one can impact -- violated with impunity. the idea that national citizenship was paramount to states citizenship, and that they could not trample on common-law rights, was contrary to the abolitionist because it would give support to their violent interpolations in this date. after the war, he devoted himself to defeating the program of reconstruction and he finally succeeded in that effort when he agreed to serve as one of the attorneys representing the state of louisiana in the slaughterhouse cases. republicans held that the nation

was sovereign, not the states. upon declaring independence from this state -- from great britain, sovereignty flowed to the nation as a whole, to the whole people of the united states. the united colonies had declared independence, not 137 sovereignties. the constitution was issued in the name of theñi people of the united states. they believe that american citizenship was superior to states citizenship. scholars have named this very paramount national citizenship. it meant that all americans enjoy certain rights because they were american, not because they were from georgia or pennsylvania. the republicans believe that the decision of baltimore had been wrong and that it should apply to states as well as to the federal government. i hope i have made clear that there were basically two parties in the united states leading up to the civil war, the state's

right people led by people like jeremiah black who agreed that states authorities were on limited. to them was the treaty among sovereign's -- the constitution was a treaty among sovereign states. on the other hand, there were people like john quincy adams, charles sumner, and other republicans whose theory of paramount national citizen held its sovereignty and was limited by our natural rights and that the nation was sovereign. americans enjoyed their rights as americans and not as members of individual states. . nity to adapt their ideas into the constitution. they hoped to remove any ambiguity by amending the constitution. if you read the 14th amendment,

that is how it works. that is the order its start seeing. all those born in the united states are subject to the united states and the state wherein they reside. it was the first time that the constitution identified citizenship. citizenship. it was by undermining this achievement and eliminating the idea paramount national citizenship that the state made its most fundamental error appeared the most important legal error was failing to give effect to paramount federal citizenship. before this amendment, the states had supreme authority over all of these matters. after the civil war had closed, the same authority was asserted.

the 14th amendment was not primarily intended to confer citizenship on the negro race. it was intended to justify legislation extending the protection of the national government over the common-law rights of all citizens of the united states. it recognized a national citizenship and declared that there immunities' that embrace all fundamental rights should not be abridged by any state. a parallel development in state law -- in 1857, the california supreme court issued a decision called billings vs. hall, striking down al that took property away from -- striking down a law that took property away from absentee landlords.

others contend that there are boundaries to the exercise of the supreme power of the state. in 1870, of the same court, the california supreme court, reversed it completely by 1870, californians were engaged in a war against chinese immigrants. one way was to pass a law that no chinese person could testify against a white person in court. if a violent crime was to be committed against a chinese person, the witnesses would be other chinese persons who could now not testify against the defendants. the great mass of governmental powers are reserved to the state, the court said. the absolute right of uncontrolled local legislation upon all subjects most

intimately connected with individual rights was reserved. the federal government was greeted by the compact of sovereign states and their continued existence in the and control the exercise of their he is right about that, taken out of context, but then he goes on to say that those rights of national citizenship are bare and nearly limited -- our bureau in nearly -- are very narrowly limited.

the state of arkansas? they do not have a navy. miller did not discuss the legislative history of the amendment or anything about why it was drafted. the doctrine of paramount citizenship or anything. the great tragedy after the civil war, officials attendinabd reconstruction. the assertive -- the assertion of states rights principles in the 19th century eliminated federal protection for many fundamental human rights, segregation, eugenics, censorship were all allowed. during the civil rights movement, from the 1950's to the 1970's, there was a revival for protection of some of these rights.

other constitutional provisions, like due process or protection clauses, as well. state and local governments today are still permitted to violate and ignore fundamental human rights. this includes not only the right to defend oneself against violence by owning and possessing firearms, but to earn a living as one chooses. today, of entrepreneurs and business owners are still basically an unprotected against the abuses at the hands of state and local governments. occupational licensing laws and other restrictions deprive people of the right to earn a living and making economic choices about employment, running their own businesses, and the burdens of these restrictions fall the heaviest on those who have no political power to defend themselves, precisely those people who need

it -- the constitution to defend them. fish in the case of adam smith, an oregon college student who started a moving business, ore. required him to get a license for spirit to get a license, you had to ask permission of all of the existing moving companies. you laugh at this, but this is the way every major metropolitan city regulates taxicabs. it is not surprising that the state of oregon had not issued licenses in many years. the general public was not even allowed to issue an opinion on the issue. this law violated his right to earn an honest living, not to protect the public, but to protect the settlers companies against competition. -- but to protect the established companies against competition.

the arrival of her free speech, religion, the press, -- the right of free speech, religion, the press -- if the supreme court chooses to turn over the slaughterhouse clauses, it would be a welcome day for all americans. thank you. [applause] >> we are now like to talk with doug kendall. he previously founded and directed the community rights

council, constitutional accountability is centers predecessor organization. he represents clients form \ state and appellate courts. @@@@@@@@@ @ @ @ @ @ @ @ @ @ @ @ he has appeared on television programs, including "nightline," 20/20, world news tonight, and radio broadcast on npr, and his academic writings have appeared in scholarly journals. his commentary has run in many major newspapers including the los angeles times g.

his degrees at the university of virginia. please welcome doug kendall. [applause] >> thank you, roger. thank you for having me today. the one thing he did not mention is that we also filed a brief in the macdonald case. it was not on behalf of the constitutional center, but on a collection of some of the most preeminent legal scholars in the country and across a broad spectrum of ideology, ranging from jack altmabalkman and eight

preeminent scholars. it builds upon a much broader collection of scholarship. that includes some of the recognized in giants of constitutional law for the last 30 years. nowhere is the disconnect between the constitution's text and history and the modern supreme court doctrine more pronounced than in its interpretation of the protections and immunities clause. there is broad consensus that indicates that the privileges and immunities clause was supposed to be the centerpiece of the 14th amendment.

the way in which fundamental substantive rights, liberty writ interests are protected against infringement by the government. correspondingly, there is almost universal agreement that the supreme court badly erred in the 1873 slaughterhouse case. virtually no serious modern scholar, left, right, or center, believes that slaughterhouse is a plausible reading of the 14th amendment. that is really the consensus that is embodied in the brief filed in this case. with the privileges or immunities clause read out of the constitution, the supreme court turned to the due process

clause as a vehicle for applying substantive protections against the state and for recognizing and protecting unenumerated rights and liberties, starting with the case of myers vs. nebraska about the right to control the education of children. the result is a doctrine known as substantive due process. it is less than a perfect constitutional actor for the role. it has led to the constitutional equivalent of a food fight for the last 30 years, among progressives in conservatives. -- among progressives and

conservatives. they have attacked substantive due process as exhibit a in their case that progressives and liberal justices on the court did not respect the constitution's text and history. liberals have looked to the argument by justice scalia and others that incorporation of the bill of rights and other doctrines that stem from the privileges and immunities clause are unjustifiable as evidence that conservatives on the supreme court would roll back protections, even for the substantive rights enumerated in the bill of rights. the whole debate should make anyone who cares about constitution text and history want to scream, because the entire discussion is devoid of any real consideration of the text and history that really matters. that is, the text and history of the privileges or a minute these costs -- or immunities clause.

i want to go through that a little bit. i think it informs this discussion little bit. the first point is that the privileges or immunities clause was crafted against a backdrop of suppression in the south. written and intended to protect against state infringement. some of this went through before. the remarkable thing about the 14th amendment that has been lost in modern debate is that we have a history of its that is out there looking to be discovered and looking to be looked to which is being forgotten right now. the drafters of the 14th amendment created a joint commission -- a joint conference

which was made up of members of the senate and the house. they did hearings for about six months in 1866, which led to the drafting of the 14th amendment. at those hearings, they went throughout the south to determine what the needs work, why we needed a second amendment to the constitution. the produced a book that reported to the joint committee every construction. they had 165,000 copies of this report. it was 1000 pages long. it had 165,000 copies at a time when america was tiny compared to the day. it was distributed around the country. you see what they cared about. they cared about the suppression of rights by the southern states of both the freed slaves and unionists in the south.

the talk about things like freedom of speech, about some economic freedoms, about the right to bear arms, as well as these rights of heart and home. the treatment of the slave families in the south and continuing into the reconstruction was where husbands were taken away from wives and children away from parents. the history of the abuse of slaves in the reconstruction. is what inform the privileges -- in the reconstruction period is what informed the privileges or immunities clause. it included fundamental rights. james madison, when he introduced the bill of rights to congress, called the bill of rights the choicest privileges of the people. what that indicates and what

scholars have documented it is that, while the terms privileges or immunities are kind of foreign to us today, they were not foreign to the framers of the original constitution and the 14th amendment. they had a very distinct meeting which included fundamental rights, both in new married in the constitution and unenumerated. -- both enumerated in the constitution and on enumerated. he defined the clause of the original constitution in a way that echoes the declaration of independence and the inalienable rights to life, liberty, and the pursuit of happiness. it rests on that. that is the public meeting of the term "privileges or

immunities." as has been documented, we summarized in the brief that there were 27 of the 37 states that had constitutional provisions that are basically the declaration of independence or the echo of that opinion. there was a very defined meaning of the privileges or immunities as a protection of substantive fundamental rights. thirdly, the congressional debate about the 14th amendment very clearly indicates that the privileges or eumenides clause was supposed to incorporate it -- or immunities clause was supposed to incorporate rights and protect other unenumerated and enumerated fundamental rights. the most clear statement of that was by jacob powers, a senator

from michigan, part of the joint committee on reconstruction. to the senate. he does so in a speech that ways out clearly that privileges and immunities are a broader set of substantive liberties. that is echoed by a number of critical framers and founders of the 14th amendment and is not really disputed even by the opponents of the amendment. the fourth point is a little technical. the awarding -- the wording is broader in important ways.

most important is that the article for clause is a quality permission or a nondiscrimination provisions. it prevents discrimination whereas the 14th amendment is really a guarantee of substantive rights. the founders of the 14th amendment intended that the right to bear arms would be a privilege or committee of the united states citizenship. when we debated keller, there was a back and forth about what it was all about. we talked about this history

from 1787 or 1789. i think that was a cloudy history in some ways. the amendment is a little bit tricky with its preamble and the court divided very closely on that. when you look at the 14th amendment, you see that the framers almost all cared about the rights to bear arms for the reason that all the rebels in the south had guns. the people who did not have guns were the unionists who work in the south and the freed men. any property or possessions or families of the former slaves, the property and everything that they were able to get after the war were under assault. one of the things that the founders of the 14th amendment,

one of the reasons they wanted to adopt the 14th amendment was to make sure that the freed men had the ability to protect themselves and their families from the first reformer rebels the final point is that president does not prevent the court for recognizing that the privileges or immunities clause prevents infringement of the right to bear arms. the court is going to have to wrestle with some very old cases. there are three cases from the late 19th century which held that the second amendment does not apply against state action.

the court is going to have to revisit portions of these cases. the slaughterhouse cases has already been effectively gutted by subsequent rulings, meaning the court in slaughterhouse had this idea that the civil war and the 14th amendment did not change anything under the relationship between the state and the federal government. the supreme court has reversed that all already, without actually reversing the slaughterhouse cases. the court has gutted slaughterhouse in many important ways. it is going to have to go back and revisit a very early cases. the argument is that it is not too late in the day. if you're born to do that anyway, you should go back and write what we think is one of the most -- right what we think is one of the most egregious

wrongs in the history of the supreme court -- the reading of the slaughterhouse case. >> thank you. we are going to hear from our own kibillion ilia shapiro. from 2004 to 2007, you wrote a column for "tcs daily."

he is the co-author of an oracle with to josh blackmun on the privileges or immunities clause. it is a very long scholarly article. he regularly provides commentary on legal and political issues for various tv and radio outlets. he is an adjunct professor at george washington university law school. he is a washington fellow at the national review institute. he lectures regularly on the -- on behalf of the federalist society. before entering private practice, he clerked for a judge e. grady jolly.

he is a graduate of princeton university where they master of science from the london school of economics. he and his jtf the university of chicago law school. -- he earned his j.d. at the university of chicago law school. [applause] >> thank you. those of you who are blogging or writing about this event, make sure you attribute all the quotes correctly. doug's briefing and their brief in the seventh circuit were recently selected by the green

bag as one of their selections for top legal writing this year. i never thought that we would be talking about the privileges or immunities clause or the 14th amendment or any of these big issues in the context of guns. you might have seen some references in the media about i am firmly on the side of the constitution nuts. it is odd that it falls to me after these two accomplished scholars to be the first one to talk about guns in this context. the thing is that this has been a long-term project of scholars from across the ideological spectrum, to reverse

slaughterhouse and revive the privileges or immunities clause for various reasons. we may diverge obverses conservatives and libertarians and we have agreed not to talk about the specifics of that the divergence, although you can ask in the q&a. we never thought that the way we would get to the supreme court with this free invigoration -- re-invigoration about the privileges or immunities clause was through guns -- the right to keep and bear arms. if you would have asked 10 years ago, roger pilon, one of the key figures in the libertarian movement and scholarship that advances public policy here and across the country, how would this part of the agenda, if you will, be advanced? the second amendment or gun

rights would not have been at the forefront of his mind, i would wager. and yet, this is how the wheel of history turned. to get to the actual case and how i think the argument will go tomorrow and some of the more specific issues, you have to go back to 61 a one -- v civics 101 or the constitution 101. turn to your pocket constitutions. the first six articles -- seven articles of the original constitution provide the governmental structure. there is a big argument about whether we even needed a bill of rights in the first place. why do we need this, given that we do not give the government power to infringe any of these

important rights? if we start writing down what these are, what about disparaging these others? there was the compromise with an enumeration of certain rights. it says that these enumerated rights cannot disparage unenumerated rights. that is the structural version of the constitution. that was all well and good. the old lead to the federal government. until these several war, none of these rights could be applied as against state governments. they could be free to send the state militias and force you to house them or what not.

but then we have the civil war which affected a fundamental rethinking or reconstruction of the relationship between the federal and state governments and between the federal and state governments respectively and the individual. the 14th amendment was a huge part of that. what did it do? did it just say, okay, those rights that we enumerated, the first eight and the other ones covered in the ninth amendment, those sean bell applied to the states? that could have been the text of the 14th amendment. you can easily understand the sophisticated lawyers and politicians that were pounding the amended to say that. but that is not what they did. therefore, the 14th amendment, specifically the privileges or

immunities laws, cover more and less than the bill of rights. a corollary of that is that the whole doctrine of in corp. -- of incorporation is a misnomer. senator jacob howard and representative john bingham, the primary movers of the 14th amendment -- those are the framers we are talking about in this context -- senator howard and rep bingham were not talking about just talking about just incorporating what they said is that we will now be of all individuals or persons or citizens, depending on which clause you're talking about, equal protection of the law -- due process of a lot before we can deprive them of

life, liberty, and property. now, that means that privileges or immunities, based on the understanding of that term in 1868 -- and remember if you're going to try to understand a public meeting of the term and text and structure of the history is, you have to do that with respect to the ratification of that amendment in 1868, not 77 or 1791 or 2010 or what have you. what that meant, based on that time was building on the decision in the case that the dimensions -- in the case back -- that doug mentioned, certain political and civic rights. it does not mean that secondly

the first and second amendments are not incorporated. the codification of the rights in those amendments is persuasive evidence of what privileges or immunities are. just like just as washington's opinion is persuasive evidence of that. when we're talking about the macdonald case, it is not really right to say is the second amendment inc. against the state's by the privileges or immunities law or even by the due process clause. it is notñi even correct to say whether the second amendment is applied or extended by one of these clauses. the right formulation, the way to think about this, if you're going to be faithful to the constitutional text and history,

separation of powers, how the constitution was constructed, is whether the right to keep and bear arms supplies or is extended to the states and how is it extended? i suggest to, first of all, that it does apply. if the only reason the you came here is to find out whether the right to keep and bear arms is going to be applied to the states and whether chicagos gun ban is going to fall, lend -- chicago's then dan is going to fall, let me and your suspense. yes. there you go. the bigger issue, as we have

discussed, is what this means for the future of liberty and for the fidelity of the constitution, fundamentally, the rule of law. we have warped our understandings of what rights are covered and which are not. justice scalia is not my favorite justice, but he is certainly the most quotable. what the justices do when they try to figure out when something is protected by the constitution is that they said around and they say is that fundamental? is that undue burden on something fundamental? that is not a principled way of doing constitutional jurisprudence. that is why we have debate over judicial activism.

we have had to these debates, both in terms of legal cases and whenever a new supreme court justice or a lower court judge is nominated. we have the new so meiesotomayo. that has become a bit of a farce. that is beyond the scope of our discussion here. given what we have just gone through -- the right to keep and bear arms -- you look at what it meant, whether it was understood to be a privilege or immunity in 1868. it clearly was.

the 14th amendment was put in in large part to protect the individual liberties of freed slaves and unionists in the border and southern states. it is deeply the article that i mentioned -- in it we suggest that the test has been applied in a previous decision. that is similar to what a judge in the ninth circuit did in finding that the right to keep and bear arms does apply to the states. i think that is an appropriate method of seeing whether a bullet regular right is covered by the clause. -- whether a particular right is covered by the clause. it is so deeply rooted and so specifically describes that

there is no controversy that it would be protected. tuesday or to get more faithful to the constitution -- to stay or to get more faithful to the constitution and perhaps more importantly to do far more for the cause of freedom than myrlie -- than merely extend the right to keep and bear arms, the court should listen and interpret the constitution as it should. will say that privileges or immunities is the way to go, is where we find the right to keep and bear arms. therefore, complete prohibitions on hand guns for self-defense have to fall. i doubt we will get nine votes for that position. -realistic best case scenario is

interesting. justice thomas would find that the right to keep and bear arms falls into that. but the four liberal justices might like privileges and immunities for the reasons that doesn't describe -- that doug described. the other four justices, perhaps scared off by a pandora's box or for other reasons, will just stick with the substitute process and there's no need to revisit slaughterhouse. in that event, you'd have five beds for privileges and immunities and five votes against -- and four votes against. that is what i am hoping for. thank you very much. [applause] .

>> i ask that you identify who you are and to whom you direct your question. try to keep yourself brief and keep your responses brief as well so that we can get as many questions as possible. >> i am with the u.s. bill of rights foundation. whether the privileges or immunities or the due process clause prevails in the argument, what is it going to look like -- what would be the difference? what would one world look like under privileges or immunities and what would it look like

under a substantive due process? i know you have touched on that, but i was wondering if you could -- are we going to go back and undo a lot of cases? is it going to change the way we identified substantive rights? what will the world look like, so to speak? >> i do not think it will immediately look very different at all. one reason why this is a good case to get a court to rethink these issues is because it is -- i think there will be broad agreement that the enumerated substantive rights laid out in the bill of rights constitute privileges or immunities. it is a fairly narrow set of -- a fairly narrow rethinking of the privileges or immunities clause as an initial step. i do not think the court will

either -- again, at least initially -- either retain its due process jurisprudence or not overturn it in this case. if they overturne slaughterhouse, that is a good day's work. i think they will leave for later cases how that affects the rest of the jurisprudence. i did not mention this, but ilya did. we have four reports that is available at our website. it lays out, in more detail, the arguments we make in our brief. the arguments says -- of the good thing about having a privileges or immunities clause in the history is that you can read the history and look to what the framers were looking at. i think that is where debates about what the privileges or

immunities clause means should begin. >> the other virtue of this case is that the heller case was essentially a case of first impressions because there was so little in the way of precedent for the court to go on. it had to go back to the first principles of the matter and the original understanding that surrounded the second amendment. accordingly, when it came time to consider the next question, whether it was right, now that it was found to be an individual right, applied against the state -- you had a similar opportunity to go back to the first principles. that is why the privileges or immunities clause was briefed so heavily in the mcdonald case, because now we have just the kind of case that is appropriate for raising that question about whether slaughterhouse was wrongly decided from the outset

and whether the court from the outset should have decided cases in the 14th amendment jurisprudence under the privileges or immunities clause more often than under the due process clause. often than under the due process clause. this is the ideal vehicle for revisiting that fundamental question. up in the back, the council in the macdonald case for the plaintiff? >> a great panel here and now wanted to make a couple of quick announcements. a very impressive panel. i've chosen to give each of you five minutes of my time tomorrow. [laughter] you can ask them if you want. i just wanted to recognize the great people behind the case and

i have a lot of help from scholars and lawyers and other people that said it would not be possible without the work of so many people. i wanted to recognize some of the people who are actually the planets for the case. if you are a planned, will you please stand up? -- if you are a play to -- p lantiff, please stand up? these to the people that are going to get your rights back. >> thank you, alan. next person is the gentleman right here in the aisle. [inaudible] >> the one concern i have with the privileges and immunities clause is that unlike the due process clause, it applies only to persons born naturalized in

the united states which would mean it would apply to immigrants either legal or illegal. had either of you consider whether the limitations on the concepts of the difference between the scope of the privileges and immunities clause to the united states citizen -- whether that has little significance? >> do you want to address that? >> that is a serious concern. but to be clear, the citizenship clause says who are citizens, which includes naturalize, so what would not exclude all immigrants. it would appear to exclude from the protection of national rights when people are not citizens of the united states. to process and equal process

applies to any person within a state jurisdiction. and on citizen would still be able to get rights under those clauses. i'm sorry. as far as in corp., the court has made it very clear that it does not apply to non-citizens. that is already a part of binding law. >> i just got my green card 10 months ago. i am enjoying the fruits of the rest of the constitution. [laughter] there is every reason for having different types of constitutional protections for citizens versus non-citizens and legal immigrants versus illegal their centers, depending on what right we're talking about that applies differently. the equal protection clause -- all the sudden you can enslave

non-citizens are something like that? i think the reason the citizenship language was used was because it applies not just to natural rights and not to those rights enumerated in the bill of rights, not necessarily all of them, but those of the best examples of the codifications of natural rights, because it also includes certain civil political rights which understandably non-citizens do not have. >> this gentleman right here. >> i am with george mason school plot. mr. shapiro shared with us realistically predicted the outcome of the case. i would wonder if the other

panelists would way and what would be in the case. >> do you have a sense of the matter, tim? >> as far as the issue at the slaughterhouse cases are concerned, i think that most of that justice had expressed at least some discomfort with that condition. one case written by justice stevens, the majority in that case did not say one way or the other, but they -- seem to regard slaughterhouses questionable -- slaughterhouse as questionable. the real concern as the court might take an easy way out and incorporate gun rights under the due process clause. that is a serious problem because you can always use that excuse to perpetuate legal error. suppose the supreme court would say that the first amendment does not guarantee the right to freedom of speech and letter says, well the eighth amendment

does. anytime a free speech comes before the court saying that you are wrong, the court could keep using the aids amendment. the argument is that we do not have to reassess that old case because we cannot use this other area of law and continued to do so. then there is no way to correct the error. there is no better way to revisit slaughterhouse than to say that it was wrongly decided. i think that substantive due process is not invalid. it is as much of valid component of the american constitution as anything else. and part of the argument in the brief that we filed is that substantive due process is a well understood and generally accessible. the time the 14th amendment was

written. revising the privileges and immunities clause should not give the court an excuse to abandon individual rights. that is the really answer your question. -- that does not really answer your question. [inaudible] >> there is a front-page story in the "washington post" about this case which has a quote from justice scalia that i have never seen before, where he pauses -- calls the privileges and immunities clause as flotsam. he has also said in an interview that he gave to the hoover institute in 2008 that he believed that incorporation it's all -- itself is probably false.

the fascinating thing about this case is that you have a great or regionalist from the hell -- originalist from the heller case really badly misreading the original meaning of the 14th amendment. the question i find most fascinating in this case is the question explored in the "post" today -- howell are most public proponents of originalism dealing with the incredibly powerful argument that scholars and organizations across the political spectrum -- the original public meeting of the 40 the amendment spoke to

incorporation and required overturning the slaughterhouse cases. >> one of the fascinating aspects of this case is that it brings to the for the problems conservatives have had with judicial mischief and judicial activism on to this court. the conservatives on the court our textile --u are --alist -- textualists. they have to make sense of the text staring them in the face. for 150 years, they have ignored that taxed as if it did not exist. there is the text that says that no state shall abridge the privileges or immunities of citizens of the united states. and it has been inoperative for all this time. it is surely there for reason. it is not there for surplusage.

those who want to be t extualists must look at this. they have to do this and go back to the history of it, which all three of our speakers today have eloquently discussed, and when they do, it seems to me the statement that justice scalia has made will perhaps come in for some reconsideration. one would hope that they do. right here. [inaudible] >> i am unaffiliated. it seems to me that you're saying that if the court reconsiders the privileges and immunities clause, you are opening a pandora's box. you did not really explain why. >> that is the concern. i am saying it is not opening a

pandora's box. it is done properly, it will actually close the pandora's box and doc's breakfast, to mix metaphors, of jurisprudence that has come out of the zero warped substantive due process doctrine and incorporation and all the rest of it. our bifurcation of rights and other costs and all persons. the concerns -- if and on where you live on the constitutional spectrum. if you are progressive, you are worried about freedom of contract, property rights, and these sorts of things. these could strike down all sorts of potentially health and safety regulations, licensing regulations, prevent progressive a good government. if you are libertarian, you are worried that out of that pandora's box could come to

write -- the constitutionalized right to health care and education and what have you. going back to philosophy 1 01, all sorts of problems that we see with that. and conservatives sharing many of the libertarian concerns about economic growth rights, they also have the concern for triple midget polygamous marriage and various kinky sexual things with the invented privacy rights as opposed to properly protected privacy rights. there are all of these concerns. i think they are unwarranted. maybe some of the concerns on the progressive side are warranted. if you look at the original public meaning of the privileges

or immunities clause and the protections -- you really have to find that is equally rooted and protected as understood at the time. a lot of these worries really should fall away. >> just to add to that -- i think it goes back to the first question. what is the difference between using due process and privileges or immunities? one thing that ought to allay concerns is that it seems to me that using to process -- using due process opens the analysis to whether a justice believes it is essential to the course of ordered liberty -- these very abstract terms that necessarily call for political philosophy interruption -- in jurisprudence. i think it should be the classical jurisprudence, not the modern progressive political philosophy that has no history

in the constitution. if you use privileges or immunities, the inquiry becomes more historical and applies to things that are not necessarily in the bill of rights like habeus corpus. that ought to comfort conservatives who are afraid court to invent new rights. focusing on privileges or immunities set up of privilege or immunity of american citizens. . concern about of run amok court under the privileges or immunities clause , as much as there is under the due process clause, because the court is much more open-ended and history demonstrates that, because under that clause, we have had this nonsense like fundamental and non-fundamental

rights, a judicial review, and all the things that came out of that. that. >> analysis keeps in mind there is no way to revise the constitutional document and prevent justices ready to usurp from using that power. they get up and say congress are going to do all these nasty things, and then if not, we are truly in a wretched condition. it has to depend on the people who are in the judiciary, and you have to depend on the philosophical flow in american society. we need to focus back on the philosophical principles of individual liberty, and that is the only way that this can work. >> i see stuart taylor back there. if you could give him the microphone, we could hear from one of the leading legal journalist in the country today.

>> i'll ask my question of the candle first. i am with the "national journal." if the court adopts your interpretation, down the road you would hope that this would influence legal doctrine not just in the way articulate it. what expansion of rights or what new rights would you hope to see coming along sooner or later in this way, and for example, same- sex marriage, would that be one of them? >> i think he would have to go back to what we have already said. the main reason we are in this is because this is an opportunity to make the constitution makes sense again. this is about the constitution's text and history, more than is about in the outcome that has happened already or that is

going to happen. i think the debate as we have discussed over the constitution has been distorted in a really critical way, because the centerpiece of the 14th amendment was knocked out by the supreme court 140 years ago. if the court even recognizes that history without overturning slaughterhouse, i think it will be a huge victory for the constitution and this country. even if it does not get to the pandora's box or opening a can of worms, it is a matter of text and history that the 14th amendment was intended to protect substantive rights and recognizes that the framers intended to do it through the privileges and immunities clause, that is a huge victory for the constitution. and it might not change anything

about where the law is. to answer your question, i think we have all been talking about the history. the treatment of slaves and unionists and the south is really at the core of what the framers were about. you can look through that history -- if the court starts with myers, which is about being routed in the treatment of the slaves, and i think that rulings like those to drop from the history of the slave families. one thing that we have not really talk about, the concern out of the left for opening up the privileges and immunities clause is that it will return

us to the gray areas. like citizens united, that is an entirely valid concern. the answer to it is that -- as tim recognizes, privileges and immunities clause is limited to citizens and not corp. specifically, and two, there are economic rights traditionally, the right to contract, an individual's right to earn a good living, if they're living, labor and contract -- some of the cases that some groups have brought on economic liberty are powerful and routed in the history in the history of treatment of slaves and unionist

after the war. the idea that we cannot have laws, that congress cannot pass laws on the 14th amendment to protect labor's and workers from mistreatment, i think it is completely antithetical to the history of the 14th amendment and should never be stored under the privileges and immunities clause. >> question? >> i am bret thomas. a historical question. presumably when the supreme court essentially eliminated the core of the 14th amendment, many the man who it pass those protections originally were still around. was there historical reaction to what happened and was there any

response to its historically? >> as far as i know, surprisingly little at first. it was an 1875, some of the ku klux klan bills, and then there was a discussion in congress about what the privileges and immunities clause was supposed to mean. but i have not been looking in the newspapers and news -- and magazines and i do not know. slaughterhouse was 1873, the same year that the supreme court relying on its decision in slaughterhouse held that women had no right to practice law and that therefore the state of illinois could prevent one from taking the bar exam. it was a couple of years before the massacre case before the court relying on slaughterhouse said that the right to peaceably assemble and the right to bear arms was not a federal a protected right for purposes of

a case where -- the worst race riot during that era -- and therefore it signaled a general retreat from reconstruction. that was felled by the president, congress -- everyone backed away and condemned the people of this out to another century of oppression by their state legislatures. part of the reason -- remember in the 1870's, the republicans lost big time in the election. there was a huge backlash against the republicans for economic reasons. and democrats came into office, a poster reconstruction. it softened the al rage over the decision of slaughterhouse, because it was one among many such examples of the general retreat from the civil rights protections. >> one of the things that you mentioned in 1973, extraordinarily important.

in 1866-1868, it was the heyday of concern about the south and reconstruction. by 1873, the country was exhausted from reconstruction. it was proving to be much more difficult to address the recalcitrant in the south, and there's a sense in which the country really wanted to move on. >> particularly in louisiana. did you know that there is a monument to white supremacy in new orleans? it has been covered up and moved away to hide it. but it commemorates the whites only who died in a race riot over the transfer of government power from the democrats to republicans. it was this extremely violent, dangerous, and troubling times, and the beds were just ready to

lead southern whites suppress. >> slaughterhouse came out of what they called a still of corruption in new orleans. peewee long -- huey long said he wanted to be buried in new orleans said that when he died, he could remain politically active. [laughter] last question because it is almost time to retire upstairs. >> he said that reconstruction, if i might point a term. i ran across a speech from the author of the privileges and immunities clause. in that speech, he says that the rights of pro-union and anti- slavery activist in the south is being violated. if the states did fayalite these

rights, it calls for the reconstruction of the political fabric on a just basis. it's important to keep in mind that is why we use the word reconstruction. it was an effort to change the federalist structure to protect individual rights against the state governments. that was the whole purpose. and if we start picking at some of the language and forget about that being the crucial purpose of the 14th amendment, we are missing the forest for the trees. >> indeed, the great task of the framers of the 14th amendment was to fundamentally change that federalism relationships in the country to prevent against state violations of our rights which had not been possible since the baltimore decision.

when the majority of the slaughterhouse miss that rationale, they did not mean that change federalism relations in the country. i could not be further from the truth but that was what was meant by the ratification of the 14th amendment. thank you for joining us

>> in a few moments, the third circuit court of appeals three here's an indecency case that began with the so-called wardrobe malfunctioned during the super bowl a couple of years ago. and a little less than an hour and half, the national intelligence director. after that, stney hoyer on fiscal responsibility. we will then show the -- review the gun rights case before the supreme court hearing tomorrow. a couple of live event to talk about tomorrow morning. the congress continues to examine the total recall. that is on c-span at 10:00 eastern. on c-span3, representatives from google testify about global internet freedom.

>> our public affairs content is availableç on television, radio and on-line. you can also connect with us on twitter, facebook andqq youtube. >> the third circuit court of appeals in philadelphia heard oral arguments last week in the case of cbs vs. the fcc. the court will decide if the fcc's indecency policy violates the first amendment. this is the second time the eighth circuit court has heard this case. the thirst what -- the first one was in 2007. it is a little less than one and half hours.

>> thank you. would like to reserve five >> thank you. >> this courtroom once again overturn the fcc's 5 -- to keep thousand dollar fine imposed on cbs for the 2004 broadcast of the super bowl halftime show for it least three reasons. nothing in fcc vs fox television show is that this was treated differently under broadcast references.

it is not affect the central issue in this case which is whether the commission ever articulated the changing policy with respect to brief an unintended images prior to the super bowl broadcast issue. we a knowledge that language requires close attention and respect of the circuit court. as this court has held in various cases, such statements are not controlling when they're made in the different context as they were here. the brief passages and fox upon which the fcc now the allies were never articulated or applied as the change in policy that is now asserted. they were not mentioned in decisions under review in this case or in any other fcc decision for the purposes decided here. the supreme court and fox had no occasion to address the application of the fcc indecency policy to visual material. second, due to theç fcc'sççy

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>> for the independent actions of janet jackson and justin timber like. the court to reaffirm the findings that the first amendment requires a showing of foregoing cbs and an unnecessary and burdensome. if the court wants to reinforce the statutory decide during factors under the -- or defining what constitutes a ruling, that this on. there's no reason to include cbs in that proceeding or punish them for the fcc's lack of clarity on those points. before involving cbs and such a extended proceeding, the courtroom first rule on the nebulous and ever-changing factors the commission employes

to make the decency findings as well as the fact that the fcc passed newly restrictive approach file its first amendment. it has been six years since the 2004 super bowl and the chilling affect such perpetual government oversight is significant. we have come a long long way from the strained enforcement policy that the supreme court's specific ruling was based on. as justice ginsburg wrote, echoing sentiments that appears to be the majority, there's no way to hide the long shadow that the first amendment cast over what the commission has done. nothing in fox alters this court's initial findings. this can be deletedç from the decision without seriously impairing the aoqlytical foundations of that holding. that is how this court has defined the language that is not

essential to the outcome. then the 2006 orders of the sec as well as the 2004 golden globe awards and said that those expressions of policy did recognize and express change from the fcc's prayer policy and ultimately the court upheld the fcc's decision narrowly because they found that the isolated words could be considered blatantly offensive, even isolated utterances could be shocking and vulgar and with the court described as a harmful first blow. >> you make a strong argument that the language that we've identified and both parties have identified might be characterized as background but it is supreme court background. xdhow do we ignore it? particularly when it seemsw3 to

fly directly against what this court found? let us assume that we still thinkfá that our initial interpretation was the correct one and let us assume that we even think that your reading of çççfox is the correct one. we are still betting our headst5 against what the supreme court said about it. if you could spend a few minutes as to why we should ignore it. >> certainly. we are not asking the court to ignore the reference to the 1987 pacifica decision. what we are asking is the court to look at the context in which the commission made those decisions and then how those decisions were passed down to the supreme court, understand

what that means in light of this court's earlier decision. in looking at language similar to this,çmçç it is said we mt be guided by a simple sentence but if there is a situation that and this case, looking at the reference to 1987 pacific a decision. it is important to look at what those decisions actually were. that is because the fcc has historically defined its policy by what they call case comparisons. simply looking at the sentence that the fcc plucked out and got presented up the line in the box cases does not tell you what those policies were. you have to look at those decisions were getting at. the 1987 pacific that decision was distinguishing two different complaint. one involving an extended sexual

activity in a play in the second, which was dismissed, involved brief unscripted and spontaneous descriptive going to find actionable. it wasmye1wzlcm$wñçw3q+nq'qp c w3çdistinguishing liberal verss çççónot literalç usages orçs fromoyçço[ç language. it)g@s simply saying that when dismisses w3w3ç çç ççw3t(i]

quips about the non literally use of a word became part of the court analysis. it was never a part of the

history of the fcc decision making in this area and it certainly was not a part of the 1987 pacifica order. the supreme court and fox was looking at the explanation that finally came together in the reporter of november 2006. it looked at this issue of a non literal expletive i think the question is what is the difference the torrent -- 20 literal description in a non- literal description. >> as i understand it, the way the fcc has tried to refer to it is to say that if a presentation of language is actually describing sexual activity, that is a liberal usage whereas in certain context of expletives, it is not actually referring to sexual activity but in fact is just a word that is used as a euphemism and because of that, it is still considered to be

offensive under its policy but that is where it was explaining the change in policy. >> can those terms be applied to images? >> that is the position the fcc is trying to get through now. to say that if you are dealing liberal usage. that es not the policy that the fcc had ever applied in the past. it has treated images and language interchangeably. in fact, as this court pointed out in the prior decision, that is because of the language of section 1464 itself. it does not distinguish between the two. the commission has tried to say that images are different by necessity, literal, but you will not find that in any prior fcc decision which is why in their briefs in this case, the

commission itself has turned to a dictionary definition to said that if you are talking about depictions, it is not necessarily visible. the same definition goes on to say -- >> you did say that the commission did not differentiate between different categories of broadcast material such as images and words. >> that is correct. >> they treated both of those the same to the >> that is right. that is what the relevant distinction for purposes of fleeting material has been as the commission said in 1987 and throughout whether or not it was spontaneous, scripted, plant, whatever. all the cases the fcc has said that over time really breakdown in those categories. >> if it had been treated the same, how do we analyze the two categories? is it the fleeting nature of images or words we should focus

on or should we consider somewhat of a can textual analysis? to determine whether or not the words or phrases are action nobly in decent. >> i think it is important to use the contextual analysis but as that term was understood and applied to the fcc, when the supreme court was talking about -- >> it is not just the fleeting nature of the words or images that matter. it is whether there are graphic, offensive -- >> it is the fleeting nature and await the supreme court was dealing with it and the way the fcc argued the case at the time. it was said that when you do with material that is unplanned and you have a breaking event where there is no time for editorial judgment that it would be unfair to apply the policy against the broadcaster in that circumstance. that is the contextual factor

that the fcc had argued to the supreme court and the supreme court accepted and ultimately with the factor that the fcc focused on in other cases. those were the contextual factors. it was not focused on constant based notion of contextual factors leaving the fcc free to apply those in any way they choose. >> that sounds very persuasive to me. that is not what the supreme court said in fox. i think your argument on inconsistent application is intriguing but before we finish through with that, can we go back to the articulation of the standard because as you said in the beginning, you think that either on the articulation basis or on the applied basis, 'athat you would prevail here.

again, tell me how i deal with the language in fox that says delivered and repetitive use is a requisite to a finding of indecency when a complaint focuses solely on the use of non-liberal expletives. >> that is language that is taken directly from the 1987 pacific that decision. it was quoted to the supreme court and the fox case and the court quoted that as part of the background section. i think what this court to do with it is the context in which the fox court was looking at it. >> where not to read it >> i think the key term is what is an expletive? the fcc never defined what they meant by that and the supreme court is not talking about with an expletive is. the fcc tries to say that that

is confined only to liberal meetings. if you look back to the decision referenced, the relevant distinction but the fcc was drawing was an expletive was what was unplanned and unscripted and unintentional. that is a factor that they look at certainly put the relevant factor for this policy with the fact that it was not something the broadcaster set out to do and therefore it would be unfair to apply the standard. for the fcc to now draw a distinction based on expletive vs description and to argue that in front of the supreme court and have the supreme court saig that language still does not tell you what that distinction relates to unless you define the term. that is something the fcc has never done. >> they also talk explicitly about language. >> that is right. if you look at those cases, you know they are talking

exclusively about language. >> it has to do with nudity and imagery. how does that case helped or hurt you? >> it is neutral. in a way, it helps. it shows that the fcc never applied the policy in this way and is not cite the 1987 pacific a language as a change in policy. broadcasting also supports that reading of expletive being the unplanned because the analysis of the sec was that this really was not unintended or fleeting because the broadcaster brought in these performers who they knew were going to be nude under their capes and asked for them to perform their act. it was not the scenario under the fleeting materials policy. >> was the analysis it can textual analysis or a fleeting analysis? that is, was the fleeting analysis apart from the

contextual analysis with pandering and graphic display? >> the fcc -- >> does that not undermine your argument? >> not necessarily. with the commission said about distinguishing the flitting material case was to say that it did not involve the same kind of intent or potential planning of the exposure. even if the supreme court reference in the 1987 pacific order is considered to salvage the fcc apa command, it is insufficient to apply in this case to impose a penalty on cbs because of the due process concerns recognized and treated the broadcasting. that case and the cases that we also cited in the supplemental briefing including general electric vs. the epa shows that even if it is sufficient to satisfy the burden of explaining

the change in policy under the apa, it is insufficient to impose a penalty. >> if the third circuit got it wrong and a first opinion, how can cbs be expected to get it right? >> absolutely. or anybody else for that matter. which 20 years without anybody ever and knowledge in it for applying it. it is really unfair to impose the standard on broadcasting to the point of significant liability for them to anticipate a change in policy that did not occur to the fcc until the third or fourth round of briefing and decision making in this area. for that reason, due process differs alone between fox and this case to justify reversing the fcc ruling. >> let me follow-up on this. was this issue argued before the second circuit in fox? the inconsistent application?

i understand about primarily the vagueness issue of the argument. >> are you talking about the most recent argument? >> yes and the courts and the most recent argument, mr. lewis can tell you more about that, the most recent argument focused primarily on the bigness' issue and the constitutional question, as well. the court and fox did not reach the constitutional remand to look at the constitutional issue. >> should we await that determination? >> i do not think it is necessary to await that determination.

>> çit said that in this case,t was not somethingw3 unexpected d it was something that the broadcaster brought to the studio and took the severe risk

that that might happen. i am not trying to say that necessarily was indecent but it is something that certainly distinguishes this case and i think the qus:%=9%já$pá is fleetç thinki] -- what is flee. ç>> my understanding on the inconsistent application çt(argument, the sec po- the fcc position is that they declined to go ahead and press cases for fleeting images but in doing so,ç at least in the gret çml of them, they have done soçóqçml underq the contextualç analysi. underq the cait thew3ç fleetnet the graphict(çokç part and the pandering part. çç

>> it went to the unexpected. that was the entire defense that the fcc made for the indecency policy that they understood it was less clear and understood that it was intruding upon an area that may involve very significant first and amorites.

in exchange for that lack of clarity, it proclaimed what it described as a cautious enforcement policy. this was not to enforce the law were in those cases were first caught off guard and could not be blamed for not being able to exercise editorial judgment in the short time available. all of the decisions that you reference referring to the 2001 policy statement really true the same lines, looking at the fleeting nature in the context of whether or not it was something unexpected for the broadcast. the last time this court looked at the explanation of the 271 policy statement -- of the 2001 policy statement, the original context rather than the isolated statements, this statement does not support the assertion. the commission decides -- the commission is substituting new rationale.

>> i take it that you would like us to essentially reaffirmed our original decision if we do not agree with you on the articulation of past fcc policy, then you would like us to find that they applied that policy inconsistently and that you were on notice without to process. i gather you also want us, if we think it is proper, to reaffirm the decisions on independent contractor. am i correct on that? >> yes, your honor. if the court does in fact disagree with us on the administrative procedure issue or on the due process issue, i might take up judge rondella's

decision to wait to hear from the second circuit into going forward. >> it was not a suggestion. it was a question. >> that is the caveat to my question. if the court does disagree with this, i think the second circuit might be helpful. i think there are independent parameters that if the court this agrees -- disagrees, it would still be unfair to hold cbs responsible. >> what about the vagueness issue? you raise that initially. we did not to do with it. you would want us to press ahead with the consideration of the vagueness challenge? >> yes but that takes two forms. one is a substantive apa issue sang the fcc's issue is utterly inconsistent with the standard and also in violation of the first amendment even under the

standard set down for pacifica. >> let us spend a minute on that. what would make it less standard list in your view? -- standardless in your view? the pandering part and the repetitive part and fleetingness? how would you cut this down if you were going to write a more specific statement? >> i think the easiest way to do that is to pattern something more like the obscenity standard work you have testing standards. i am not saying it has to be that standard but rather in applying the bill is standard, course use the three-pronged test is the issues, each of which has to be met. in the fcc's revision of miller as a plot to the indecency standards, it is argued that a

is various factors, the graphic nature whether it is repeated or pandering, all interrelate. -- simply by saying at its whim, one factor out was the other. having a test that requires it to be a test rather than an impressionistic view of the commission saying that one factor simply out with another without further explanation, that alone would make the cat -- make the test more clear. i do not know if it will be sufficient to satisfy the supreme court on the biggest issue but certainly it would be an improvement on what the commission has done. >> is your finding of the graphic nature of the display and pandering aspect is entitled to some deference? >> the fcc is entitled to some deference. we're talking about a constitutional question, then no.

if we're talking about an interpretation of the fcc's previous policy, this court would be a differential but not the point that it? the commission revision or rationalization for what it has done in the past when that is a real representation of what the policies have been. >> as you know, we decided to rename this matter to the fcc and we stated in our underlying opinion that minimally, recklessness was the standard at the fcc. the statute does reference will folk -- willful conduct. can you comment on which standard to be the correct standard? >> our view is a remand including cbs is not necessary

particularly if the court reaffirms on the apa issue or on the due process question involving cbs is unnecessary. with that being said, if the fcc does go over it, and this certainly can and define what they mean, we think that it should clarify whether it is proceeding under section 503. this would define whether or not the standards applicable to section 1464 apply. fox is a good analysis of this issue saying the standard -- to hire issue to a plot would require an actual showing of intent to violate the standard. in the court earlier opinion, and the standard of recklessness that would apply is cited to the supreme court of osborne of the ohio. -- osborn vs ohio.

that would salvage a state criminal statute on child pornography. the important thing from that decision to apply as it relates is the secondary decision in osborn which reversed the conviction in that case because the standards had not been applied to all elements of the offense. i think this is a point that was made saying that what is important is that the fcc is required to show it with respect to each element. >> i understand that will from this is easier to do than reckless conduct. it constitutionally, would that be sufficient? with the last time i was here, i was talking about recklessness in the context of first amendment cases where you have to have actual intent or reckless disregard. the recklessness standard the court was discussing was

somewhat less than that. i think the commission itself acknowledged that the standard public should be willful blindness in the oral argument last time. i think that is the standard that should be applied and a rich the same outcome and that is no penalty for cbs there you would have to show according to third circuit decisions a conscious purpose to avoid learning anything about the situation might lead to liability. it would not be sufficient to have simple negligence or even stupidity would not be enough. i think that standard, whether or not the court resolve's with the ultimate standard would be because that is up to the commission to do, that is the standard that would reach the same outcome here. i think the record demonstrates that whatever else may have been going on, there was not willful blindness or recklessness on the part of cbs. the record is nearly 5000 pages. it is undisputed that cbs did

not approve a plan or even have the knowledge of the stunt and that it took reasonable precautions that any broadcaster would take to avoid unexpected events during a live broadcast of this type. >> thank you. mr. lewis. >> make it please the court, the supreme court's decision confirms the argument all along. there has never been a fleeting image as an exception to broadcast indecency enforcement of perhaps some of the confusion comes about because the commission has applied throughout the history of broadcasting the decency enforcement since pacifica, a general contextual analysis according to which the fleeting nature of the image or amber -- or any material is relevant. the question is whether there is

an image. let us go back to 1987. let us look at what the commission did. in that order, what had been happening after pacifica, the supreme court decision until 1987, the commission had applied to enforce broadcasting decency in a very narrow way. as the commission explained, the virtually limited enforcement to cases which actually contained repetitive repetition of the precise expletives that were issued in the supreme court case. in 1987, the commission changed the policy. they said that was too narrow interpretation put it is inconsistent and -- inconsistent with their statutory responsibilities. we're going to make it clear that no longer are we going to have such a narrow enforcement policy. we're going to broaden this out

for the contextual analysis that the supreme court approved in pacifica itself. patently offensive depictions or sexual and excretory activity. however, it made clear it preserved the repetition requirement which had been lined up to then with regard to a narrow category of words and words only. non-liberal expletives. that is what happened -- non literal expletives. you do not have to take my word for it. the supreme court described precisely this change in explication of policy in that case. on page 18 07 of the opinion, although the commission had extended enforcement's beyond the repetitious words or phrases, it preserve the distinction between literal and non-liberal uses of provocative

language. each literal depiction must be examined and contest to determine if it is patently offensive or if they use is solely on the use of [inaudible] . the commission deserved -- preserved a limited class of words and words alone. one does not have to struggle between liberal and non-literal distinction. that is caught in the class of words. images were never subject to that. it is true that when one looks at the actual distinction set forth, the preservation will find a distinction between non-

literal and the message or implication of images that if one were to try to try and fit images into that category that was created for words, you would put images on the descriptive side of the line which also fell outside the exception only applied to non-literal images. they are descriptions. that is why it is very important, the supreme court description of paragraph 13 of the 1987 oral cjjt)ásj that what we argued all along, in 1987, the commission expanded enforcement to contextual analysis across the board, it had won limited part. that was eventually eliminated and fox as making no sense the dome that is why it is important in the fox decision because it was not simply inside. that description was a critical

set of to the supreme court set up. the underlying assumption, if i could read from the fox decision, it talked about the agency's reason for expanding this open enforcement, and this is when the agency had eliminated that part, was entirely reasonable. it was reasonable that it made no sense to distinguish between liberal and non-liberal usage of words requiring repetitive use. the supreme court could not have reached its decision in the fox case was reasonable without describing with the prior policy had been. that is our point. this is not simply a discussion in the background section of the supreme court opinion. that was critical to the court holding the case. that is point numberñ one on te

exemption. that exemption applied only to that. in this case, once you take up the argument that there was a fleeting images material policy, there was nothing for the commission to explain. they cannot be in valid on the basis of failure. >> let me ask you a question. you say looking back that it is clear that this is words and words alone and i am not sure where it says that but it seemed to me that in young broadcasting, there was the opportunity, and fox and pacifica, we're talking about speech. speech. alking about nudity. there was the opportunity for the commission to say as we say in the brief, spoken vulgarity simply cannot be analogized to the display of a person's

sexual [inaudible] a young broadcasting -- in young the broadcasting, the commission addressed fleeting nudity saying it was a fleeting. then noted however, it was intended to pander to shock. it says that we reject the assertion that this material is equivalent to other instances in which the commission has ruled that the fleeting remarks and a live an unscripted broadcast to not meet the indecency definition. in the footnote, it explains how the expletives, the fleeting expletives in other cases were not intended to pander and titillate. it drew no distinction an image of nudity that is fleeting and an explosive that is leading