sure there are policies that sure it is affordable, to make sure that there are policies that assist with low income folks, and make sure we are supporting schools and health care facilities with connectivity. we need to make sure that the spectrum is available. there are a variety of things were most people would agree that government has an appropriate role in doing those things. there are a lot of different concerns. we think the plan points in the right direction. we think it is on the right side of history. as to what the job is that needs to be done, others will discuss was best suited to do that. >> the next step for the commission is to develop a timeline for doing all the proceedings needed to implement the plan. what factors are shaping the timetable? is it what is most urgent, what will give the most impact?

>> congress does not need to approve the plan. their core recommendations like incentive options were congress does need to act. we wanted to have fcc do certain things and not go to congress. . .

it won't surprise you one of our text is chief justice rehnquist and he discusses the ex parte marymount case which president lincoln alone did not have authority to expend the writ of habeas corpus and someone only before the articles of war can be brought before the military commission. chief justice rehnquist the historian cites from newspapers at the time that were severely critical of the decision. it's interesting to see chief justice rehnquist quote newspapers and president lincoln basically ignored the decision. justice bryer, you've written in your book about the

importance of thomas jefferson's words and the declaration of independence to secure certain inalienable rights governments derive their just powers from the sense of the govern and you write the need to trace authority from making governmental decisions back to the people themselves, so my opening question is that the public or media's reaction enter into your decisionmaking as a justice in a case here? >> whether the decision is popular or not, the point is it doesn't and you have to train yourself to that. from the point of view -- [inaudible] whether the decision is popular or unpopular -- [inaudible]

was to have a group of people who would be able to apply the constitution, as it states for its intent, even if the person affected is the least popular person of the united states in the particular because if that person is popular, he may not need the court's protection and that's the job. so the answer is zero or as close as we can >> justice scalia, would you like to answer, and we're not supposed to be fearful of telling the truth. the bill of rights which is the

most important part of the constitution placed in our charge is a validly anti-democratic, it tells the people they cannot do what they want to do even if they want to. without amending the constitution so one should not expect us all the time to come out with opinions that are popular. the whole purpose of the bill of rights is to protect you from the majority in some cases. >> justice scalia, why is it important to tie current decisions to the framer's views, in your view? >> well, i don't care a fig for the framers but for the people that ratified the constitution. i don't believe in original intent. i believe in original meaning, what was the meaning of the

constitution when the people ratified it? you quoted jefferson, the validity of government depends upon the consent of the governed. and you find that consent in what the people agreed to. so what the people agreed to when they adopted the constitution, what they agreed to when they adopted the bill of rights is what ought to govern us. the bill of rights is, as i've said, in a sense, anti-democratic in that it prevents the current majority from doing what it would like to do. but in another sense it is quite democratic, the bill of rights was adopted, after all, democratically. it was the people, self-limiting their power. now, the meaning of that, whether, for example, whether it prohibits the death penalty,

whether the eighth amendment that prohibits punishments forbids the death penalty. there is no doubt that no american ever wrote it for that when they voted to ratify the eighth amendment, the death penalty -- death was the penalty for all felonies, it was the definition of a felony. it's why we have western movies because horse thieving was a crime. and we wouldn't have western movies. to say nowadays things are different and we think the death penalty is a horrible thing and therefore since we think so it's prohibited to the people, that is not being faithful to the will of the people. states are free to adopt it or refuse to adopt it, to repeal it but to say there is something in the constitution

that requires that they abolish it is simply -- is not following the will of the governed. >> justice breyer, you've written our constitution begins with the words "we the people" not we the people of 1787. why is that an important distinction in your view? >> i think it's interesting event in part because it suggests where justice scalia and i are of tremendous agreement, the members of this court are ue than must in 40% of the cases -- are unanimous in 40% of the cases. and the issues, since i think that's our job, in a sense is to control the boundaries of the constitution. we're there, it's a document that creates a government. and it was supposed to create a government that would work.

and that kind of workable democracy was supposed to last a long time. but our job is to apply the words that created the government and not just those that protect liberties, there are some important ones that do that, to circumstances today. and we're likely to hear cases that are outside the boundary. otherwise, what's the case doing here if the answer is so obvious? so it's hardly surprising that people don't agree. on many of these cases. there are good arguments on both sides but now i'm getting to your question which is what you want to know is why on so many cases are we on different sides. and that is a question i ask myself. and i think the answer in part is this, and this is why i think we both would say this document is meant to govern

people from now indefinitely, they said in 1787, so it has to last. and that we read interest their intent, there, that's what they want it, as i read it into the meaning of the constitution, and how do we get there? there's where we might differ. i think when we read the language in any document, whether the statute or the constitution, in any difficult case, a judge will read the words, one. we'll look at the history, two. we'll look to the traditions surrounding the words, what does habeas corpus mean? that's three. we'll look at precedent, that's four. we'll look to see what the purpose for the value is underlying that particular phrase, that's five. and we'll, six, look at the consequences of deciding one way or another through the lens

of those values or purposes. i think we all do that. and i think if i can characterize justice scalia, he's happier when he's only looking at the first four and i'm happier when i'm looking at the last two. and when i say "happier" i don't just mean psychologically happy, but that i think that by looking at those last two things, purposes or values and consequences viewed in light of the purposes, that we can better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries. i don't want to put words in justice scalia's mouth but i think my approach makes him very nervous, because i think that he's afraid i, or if not me, others who follow this approach, will end up subjecting -- their subjective

ideas, substituting those subjective ideas for something objective, and that's risky. now, he can confirm whether that's true or not. i of course think that there isn't much of a risk, that he thinks there is. and anyway, am i right that he's happier on the first? >> well, i -- if there's a risk, i know a whole bunch of rights that have been found in the constitution that the people never voted for. whether you put the people of 1787 behind it or not. that's what's happened through the device of looking at the purpose of the provisions and saying we have to keep the constitution up to date, it is meant to last centuries. let me address the last concept

, the constitution is not an instrument of change, you don't have to change the constitution in order for society to change. all you need is a legislature and a ballot box. change will occur as fast as you like. the purpose of a constitution is to impede change, take the death penalty. the fact that the eighth amendment does not prohibit it doesn't mean that you must have it. if society doesn't want it, you don't need 5-9 members of the supreme court to tell you it's a bad idea. individual states can abolish it, as many have in this country. and it is not a recipe for change and for progress to read new things into the constitution. my constitution provides for a very flexible system of government. you like the death penalty,

persuade your fellow citizens it's a good idea. you don't like it, persuade them to the contrary and abolish it. that's flexibility. whereas once my court holds that the death penalty is unconstitutional, that's the end of the matter. it's no use debating it, it is off the stage of democracy, just as abortion has been put off the stage of democracy. there's no use debating about it anymore, cannot be prohibited. now, you can like that or not like it, but don't pretend that this is producing a flexible system. to the carriers. it's produce -- to the contrary. it's producing what a constitution will produce and that is rigidity and the people who come here asking us to define new constitutional rights come here for that very reason, because they want the right that they're interested in to exist coast to coast, in

every state, without anybody voting for it, now and forever. or until we change our mind. [laughter] >> well, i mean, of course no one invents new constitutional rights. the problem typically is that there's a word in the 14th amendment, and also the fifth, is "liberty." the word "liberty." and why these issues are so difficult is that word doesn't define itself. and moreover, there's an amendment, the ninth amendment, which says you should not interpret the existence of certain rights specified in the first eight. to me that word "liberty" is restricted to those. now, what does that show? i think it shows the people who wrote the document, well, they thought that the word "commerce" and the commerce clause might in fact encompass telephones, internet, radio,

even though they didn't even know that there was going to be such a thing. and i think perhaps the people who wrote the words "cruel and unusual punishment" might have had an idea that if flogging was currently present in the navy without anyone batting an eye, there could come a day when it would be considered flogging in the navy or elsewhere cruel and unusual throughout the world. and the most well known example i think is the most famous case in this court, brown versus board of education because at the time, people wrote the 14th amendment and then interpreted it in plethy versus ferguson, they probably in good faith believed that separate but equal was somehow going to help the people who the 14th amendment was aimed at helping. but certainly by 1954, it had

become absolutely apparent that what that phrase meant was two societies and one was kept down and the other wasn't. absolutely contrary to the purpose of the 14th amendment. and therefore the court must look at those words, a state shall not deny any person equal protection of the laws through the lens of what actually happened. not through the lens of what someone thought might happen on the ground factually in 1787 or in 1872 or 1865 or when they decided plethy versus ferguson 80 years before 1954. >> is he done? [laughter]

>> well, as far as the equal protection clause is concerned, it's a perfect example of what a sea change there has been in the attitude towards the constitution of not just judges and professors but worst yet, of the american people. this notion of a living constitution whose meaning changes to comport with what we think is a good idea today, it's relatively new, and all you have to think about to believe that is the 19th amendment, which was adopted in 1920, which in my lifetime at least is yesterday. why didn't somebody come to the supreme court and say, you know, they were only gentlemen at that time, what could be a greater denial of equal

protection in democracy than the denial of the franchise. you know if the issue came up today that's what would happen and the court would say yes, women have to vote. it's not the way americans thought in 1920 and it was a better day. but they thought in 1920 was, look, did the people, we the people, ever decide that you could not discriminate in the franchise on the basis of sex? is that what the people decided when they ratified the 14th amendment that includes the equal protection clause? and the answer to that question is very obviously no. nobody thought that the equal protection clause for bad discrimination in the franchise, not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. so it was an easy case in 1920.

if you are wanted that change, let the people vote for it, and they did. we adopted a constitutional amendment. and we are living under it now. but that's the honest way to do it, not to have the court decide that suddenly things have changed. and by the way, the issues on which justice breyer and i disagree are not issues of new phenomenon, new technology like telephones and so forth. we're going to come out the same way on those. of course you have to figure out how the first amendment applies to those new technologies. that's not a hard issue. where we disagree is on matters that existed a long time ago, the death penalty, abortion, the right to suicide, which we came within a hair's breath of recognizing. we said we're not yet prepared to recognize it but one day in

the fullness of time we may. those are the issues on which we severely disagree, in my view, whatever existed then is unchanged. the people knew that the existence of that phenomenon and they accepted it. if you don't take that approach, by the way, if you say that it changes, you've destroyed the whole purpose of the bill of rights. which is to prevent the current society from doing the stuff it wants. let's take cruel and unusual punishment. let's take flogging. well, do you think all the eighth amendment means is that oh, to thine own self be true we think corkscrews are cruel an unusual but if some other generation says they're ok, god bless them. that's all the eighth amendment means. of course that's not what it meant. and can it change only in one

direction? flogging can become bad although it used to be good, but thumb screws can't become good where they used to be bad? i mean, that's incoherent. the only way you can preserve the value of the bill of rights is to give it a constant, unchanging meaning and not water down, for example, the right to jury trial, not water down the right to be confronted with the witnesses against you. those are two issues in which the originalists on the court have championed the rights of criminal defendants. even though the modern soto would -- more than society would say we don't need so much jury trial and they would say so long as the hearsay evidence is supported by some indication of veracity. the only way to preserve those values the way the people voted

to maintain them is to give the words the meaning they were understood to have when the people ratified them. >> first -- let's see. what do you disagree with or agree with? i disagree 1920 was better. it was better for some people but for a lot of people it would have been a lot worse. then i agree you have to go backwards and forwards in the same way. you have to admit the theoretical possibilities that people -- application of a value can change in different directions, that the theoretical question that -- i've never seen it come up so i don't have to worry about it. but i think basically where i disagree the most is i think the examples given show take what you have to do in interpreting the constitution is to look at what the basic values were that underlie the first amendment, free

expression, religion, etc. those don't change. no one's talking about changing those, nor is anyone talking about inventing some totally new right. what we are talking about is talking about applying the constant value to changing circumstances. and if you don't, i guess you're going to say that flogging is still ok. and if you don't, i guess you're going to say that the original thought of plethy v. ferguson is still right. of course you have to change that. because circumstances change and as far as what the framers wanted -- to use a trivial example, to illustrate the point, imagine congress after the statute. and it says all endangered species will be protected.

and what at that time, if you ask members of congress, everyone would have thought that the czechoslovakia mink is not endangered. i don't know what the czech -- years later discovered it is endangered. of course the statute applies. they enacted some words that expressed a general purpose and even if they thought the application was not what it turns out it's going to be, you have to follow their general purpose or the value underlying the constitutional provision, applying it to circumstances that they thought might not even exist. that's the name of the job, in my view. and if you look at the particular, and i like that example about the confrontation clause because it gets emotion and sort of -- therefore i think it's a pretty good

example. justice scalia wrote, and i agreed with him and joined him, that when it says in the constitution every defendant shall have the right to confront his witnesses, that's basically what it says, confront the witnesses, what those framers had in mind was sir walter rollie, who in fact was convicted on the ground of some after davids -- affidavits people gave to a group of accusers in the house of lords and they never showed up themselves and blackstone and everyone else he knows by heart all said no, no, we can't have that, we're going to write the confrontation clause and i agree with that. and now the question is, very well, you have to produce the witnesses in court. ok. that sounds good. but suppose the defendant, if you don't produce them, you can't introduce the evidence. that sounds pretty good.

but suppose the reason that you can't confront -- the reason you can't produce the witness is she's dead, the accuser. and moreover, this defendant is on trial for killing her. he killed the witness. now can you introduce her prior statements saying that man, my husband, threatened me with death. that's a tough one. and where i think the majority there tried to find the answer, and i didn't, i was in dissent. they said we're going to look back to see what blackstone -- no, to see what sir -- no, to see what they thought in the 16th century in england, in the 17th century and they came up with an answer, which is the answer, keep it out. i looked at that and i thought that's not the answer. in fact, i can't figure it out, to be honest. so there was nothing said. ok. now what do we do?

and at that point i say if you want to do all this history, let's have nine historians on the supreme court. let us not have nine judges. because i will be frank to admit that i don't know the answer to that question historically and i do know the brief gave us opposite answers. so i have to try to use something else. and what i'll try to use is the basic purpose of the confrontation clause as applied to sir walter rollie and then try to figure out if this particular instance does or does not fit within that basic value or purpose. i don't see a good alternative. and that's why i think we disagree on a lot of matters and why we so often come out on opposite sides. >> deciding on the purpose is a very man up -- very maniplative purpose, do good and avoid evil? you realize the amount of discretion that leaves a judge? what is the purpose of the

confrontation clause? i assume is it to produce a fair trial. so do i say the constitution requires whatever i think will produce a fair trial? of course not. you can't run a constitutional system that way. and as for justice breyer's statement he doesn't know of any situation where we have tet -- retrogressed by applying the constitution, the very area he was talking about, the confrontation clause produces a perfect example. that area of the confrontation clause which he has no problem with, that you must produce the witness if he's available and alive, he must be in court. that's what it meant. nonetheless, what, 25 years ago , the court held, i think an opinion written by chief

justice rehnquist, i'm sorry, jim, the court held that all the confrontation clause requires is that the hearsay evidence you bring in, mainly you bring in a third person who says well, i didn't see the murder but joe told me that he saw it and he said the defendant is the guy that did it. that's hearsay, and all the confrontation clause requires, we said 25 years ago, is that that hearsay bears some quote reliability. we overruled that case, i'm happy to say, about 10 years ago, and what we said is that the only indition of reliability that will satisfy the confrontation clause is confrontation because that's what the clause said. and there wasn't any doubt about what confrontation meant. so don't think that this is a one-way street, that oh, we just get freer and freer, there

are more and more rights, more and more freedoms. it's a two-way street. you can gain rights and you can lose rights. it depends on which rights justice breyer likes and which ones he doesn't like. >> no, it doesn't depend on which ones i like but which ones are implicit in the value that's in the phrase. i don't put something in the free speech clause i think isn't covered by the freedom of speech. and if you want to know why i think it, i have the job of writing it down and i have to write it down in a way that you can understand. and if you think i'm wrong, you can complain like mad and it will get back and i'll see it in the paper eventually and begin to take it in. but any way you can judge what i've written, that if i'm writing and trying to look at history, i would say you haven't a clue. and that is one reason i think in a democracy it's better to look to the purposes. and i also think purposes are sometimes hard to figure out,

particularly talk about complicated statutes. try erisa or try the language. they're really com lex. but often you can find purposes, more obvious than not by a long shot. if you want to try something difficult, try looking at the history in the case justice scalia is talking about, i'll take purpose every time. the reason purpose isn't man up labble -- man up -- maniplable is a joke that explains it. why is it funny? you all loathe this joke. there's a couple people flying in a balloon in maine and they're lost and they come down and see a farmer and one shouts "where are we?" and the farmer says, "you're in a balloon." [laughter] >> now, why is that funny? because it ignores the context.

if my wife says to me there's no butter, she doesn't mean there's no butter at the corner store. she means in the fridge. ok. how do i know that? i know that because of context. and there isn't really this terrible problem that justice scalia sees in using purposes, because the context of the case and the context of the statute or the context of the constitutional provision tells us, more often than not, how to use it. so i see not much of a problem, though sometimes purposes are tough. but at least not as tough as the history sometimes when you try to explain that and deal with it in very complex, fact-specific matters. but anyway, sometimes tough. but even if it's equal, at least if you follow purpose and

you explain anyone who is able to read is probably able to follow it if you take the time. the ball is not hidden. and that's what virtue in a democracy, even if the others weren't, which they are. i never heard you make that one before, steve. >> that judging is best which is most readily understandable by the people. is that it? >> to quote erisa, my god. let's do whatever produces a good result. >> you know, when our opinions are reported in the press, they don't give you the details of erisa, you know, section 323, what we're really wrestling with trying to reconcile a lot of different provisions, they just tell you who won. was it the impoverished widow? or was it the dirty insurance

company? and if it was the widow, hooray, it's a wonderful decision. and if it's the insurance company, a terrible court. and you know, it's always going to be like that. it was like that in the most famous jury trial in history where the very clever lawyer says ah, yes, you may take a pound of flesh but if any blood goes along with that flesh, your bond is forfeit. and everybody says oh, brilliant lawyer. i'm sorry, she's the journal. brilliant judge, wonderful judge. that's a lousy opinion, really, to tell you the truth, because if you authorize somebody to take a pound of flesh, you surely implicitly authorize them to take whatever blood goes along with it. if it you brought someone to harvest wheat on your land and he shows up, i said you could have the wheat but didn't say

you could trip us. of course not. but who cares, antonio won and the bad lie lost and everyone praises porsche. there was a good reason to come out that way, which is the contracts to maim are contrary to public policy. but the motion oh, it's a wonderful way for judges to decide cases if the people can understand what they say. i mean, i never heard that before. and i certainly don't agree with it. it's why we spend years in training because of the stuff we have to wrestle with is different. it's difficult. it's arcane and not something within the reach of everybody. and moreover, you talk about the purpose as though the purpose is clear. what is the purpose of the due process clause? no person shall be deprived of life, liberty, and property without due process of law.

to begin with, i'm not as unsure as you are about the meaning of liberty. i think its original meaning was quite clear, those are the three penalties for a crime. life, taking away your life, taking away your liberty, putting you in jail, or fining you, life, liberty, or property. that's what was its original meaning. now, not only have we stretched it to include all liberties and it becomes up to us to decide what's a liberty wrblingt -- what's a liberty, but we've also ignored the fact it's only a guarantee of process. it doesn't say you cannot take away the right to abortion. it just says you can't do it without due process of law. but never mind, you know, we want to do something that achieves the purpose. what purpose are we achieving? making a happy society, doing whatever the particular judge thinks makes for a happy

society? i mean, it's just not that simple a matter to decide the purpose of a particular provision and then say well, you know -- anyway. >> well, all right. first, if i did make an argument you haven't thought of before, i wish you'd think about it. [laughter] >> and i think i'd add here that -- in talking about values when you talk about the constitution, that they're analogous to purposes and if you really think the word "liberty" is just talking about prison, then i fear for the newspapers and the speakers of the country because of course this court has long since read the word "liberty" to encompass freedom of speech which has nothing to do with going to prison. and there are a lot of others, religion, press, so forth. so i think we're beyond that. and when you talk about statutes, you talk about the purposes, and i agree, it's

sometimes tough. but you said, and i think this is perhaps, i mean, i'll be the target if you want, but i don't think i sit there and think let's do the good, i mean, that was aquinas but even he did unpack the meaning of good into a bunch of specific things. and here what you're using that as shorthand for is let's go back to a statute and what you mean by doing good is do what congress intended. now, that's what the good is in terms of the statute. and it's also in terms of the constitution, as i say, what the basic value is underlying free speech in the other provisions. so now is it so tough to figure out what purposes congress is trying to achieve? sometimes it is, but very often it isn't. and is there a good reason for doing that? now, i put in transparency as

one but i certainly didn't mean that as the main one. and if i were to think of the main one, i would think it was this -- we live in a democracy and as long as we take the statutes that are passed by congress and we try to interpret them in terms of the purposes and the intent of the congress, we enable congress better to do what it's trying to do. and if people see what it's trying to do and discover it works well or works badly, they know who to hold responsible, the people who voted for this law and therefore we are acting in harmony with a system that allows people to hold their elected representatives responsible for what happens as a result of their loss. as soon as we abandon purpose,

as soon as we no longer make the effort to see what congress wants, as soon as they're there trying to work with words to guidance we know not what, well, then we can reach all kinds of results. and then the result of something working badly is, well, he did it, the other purpose, the courts did it, we didn't want to vote for that, that wasn't our object, they thwarted us and now try to hold them responsible. now, the one kind of a system is consistent and coherent with a democracy. the other kind isn't. and i'm speaking in general because of course you can find counterveiling examples but in general i think that's true and i think that's a better reason for following purposes. >> you want to say something, jim? [laughter] >> i don't want to get in the way. this is wonderful. but how do you discern the purpose of congress?

>> the only way i know is the text of the statute that congress has enacted because to tell you the truth, no law has a single overriding purpose. the limitations that the bill contains are as much a part of the purpose of the bill as its general objective, to help the poor, to provide health care, whatever. the limitations are as much a part of the purpose. and you can't tell the limitations except from the text of the statute. and the chasing around for purpose is i think a fool's air and. we are not governed by the intentions of our legislators, we're a nation of laws, not men, the famous phrase from the massachusetts constitution. we're governed by the laws that congress enacted, not by what they intended when they adopted

those words. and the only way to remain that government of laws is to interpret laws on the basis of what they say and not on the basis of what we think. and we can imagine a lot of things, what we think congress had in mind. i did want to say that we have some members of the press over there, i'm sure they're very upset to learn that the freedom of speech and of the press depends upon the due process clause. i thought you could not take away the freedom of speech or the freedom of the press even with due process of law. those rights are guaranteed in the first amendment. and you can't take them away, period. that doesn't prove that liberty means freedom of speech and freedom of the press. >> well, i mean, the first amendment says congress shall make no law abridging the freedom of speech. it says nothing about

california. >> that's probably right. >> the reason it applies to california is because it's been incorporated by the word "liberty" and the due process clause. >> right. >> and that's why i think the word "liberty" in the due process clause encompasses -- anyway. all right. i don't know how far back you want to go. lets go back to the articles of confederation. but i mean, the more -- to go back to the question, and the trouble is to answer your question, i have to give an example. and the trouble with legal examples is by the time you get them out, since cases are complicated, the audience is asleep. [laughter] >> but i'll try. let me show you. we had a case where we're trying to interpret the word "cost." and the word is in the statute an says if your child is handicapped and you tell the board of education he needs a better education, and the board doesn't want to do it and you

win your case in court, it says right in the statute you get costs. question, does the word "cost" encompass the fees of experts? nobody can win such a case without having some educational expert and they don't come cheap. ok. does it or doesn't it? now, read the word 50 times. does it help? read it all you want. and justice scalia is absolutely right, you can think of a purpose either way. purpose, help the parent. one, it would be meaningless unless you give them their expert cost. purpose, save money. that cuts just the other way. so what do we do? well, lo and behold in that particular case, when congress passed the statute, as you well know, the law is different and both houses go to a conference committee and they write a report on the harmonized law

which goes back to the chamber and the system for the senate adopting the harmonized law is they vote, do you adopt the conference report, yes or no? well, in this particular case, there was harmonization, the senate did vote yes, unanimously 98-0 and what it said in the conference report as well as having the language "cost" it says this word "cost" is intended to cover expert fees. ok. i think maybe that gives us a clue, since it was signed by every senator and representative at that conference and they passed unanimously, and so i would say, i first thought this was tough, because, hey, you have a purpose in either direction. but by the time i looked into it and found out what congress had actually done, it wasn't nearly as tough. and so i wrote just that in my dissenting opinion. [laughter]

>> and when congress adopts a committee report, it adopts the language of the bill recommended by the committee report. congress does not enact committee reports. it enacts laws. and the way to interpret the meaning of the law the congress enacted was looking at many other statutes that used the word "costs." and the reason the majority came out the other way is that almost all of those did not consider costs to include expert fees. >> what i'm saying is congress wanted the opposite. >> you don't know that. you don't know that. the only thing you know for sure that congress wanted is what congress said in the legislation that it was passed by both houses and the congress adopted it. congress never adopted the committee report. >> now you're getting flavor

for where we really disagree. i'll give you an example because this is the harder one. let me give you another example. it's a harder one but absolutely one we'll disagree about. there's a statute, as you probably know, that says you can recover if somebody in the government hurts you, a tort, you can bring an action against the united states and recover your money. now, there's an exception and the exception applies where the harm to you concerns your property -- i'm not positive i'm remembering this correctly but roughly. there's an exception where the officers who take your property say wrong ghri, and it says they have to -- wrongfully, and it says they have to do certain things and you can't sue the united states in that example. but who does this exception apply to, but says customs excise and other law enforcement officers. question in the case.

does that term other law enforcement officers apply to a prison official? or does it apply to law enforcement officers that are like customs and excise officers, which prison officials aren't? now that is a hard question. and you can really argue that up, down, and sideways. i didn't know how to answer that. then i began to look into what was in front of congress when they adopted that and who wrote it? it was baron holtzhoff and he was an old treatise writer and in the department of justice that time and sent them a letter and in the letter said let's adopt this language and he said, i've copied this from someone in england and you look at what the thing in england was and it said absolutely law enforcement officers connected with customs and excise. and here he'll use this against me. and i thought i would be more consistent with what congress wanted by limiting law enforcement officers in that

way. >> to prove i'm right in that case let me make one last sentence and see what i'm trying to do. what i'm trying to do not always successfully is to have us interpret statutes consistent with what congress did or would have wanted in order to make it easier for the government to function well, a workable constitution, and for people to hold responsible their elected representatives. ok. >> ok. now, you know, to say that's what congress intended, you have to believe that a majority in each house knew about this guy holtzhoff and knew that he had gotten it from this english thing and knew what the english thing said. do you really think -- it is such a fantasy, such a fantasy. it is the last remaining fiction in american law, a

total fiction. we blind our eyes to the fact that nobody knew about this stuff. to say that it represents the intent of congress is simply foolish. and of course what it produces is a cottage industry of legislative history. it is part of the function of k street firms in washington to write legislative history. which is carried up to the hill, given to a friendly senator or congressman, read on the floor, and goes into the congressional record, or if they're really good, they can get some teenager to put it in the committee report, which isn't even read ordinarily by the committee members, much less by the rest of the house. >> again, i think only a judge could make this kind of argument that's just been made. and that's good, actually,

because judges basically do their own work and they're on top of the details. but most organizations in the united states don't run like judges, perhaps thank goodness. most organizations are pretty specialized and they have bits and pieces. and the president of general motors doesn't know everything that's going on in every department but he has a system of alerts. i worked in the senate for a while. i thought it didn't work then, at least in 1979-1980 as bad as people now tend to think, and maybe it doesn't work that bad. but what would happen at the staff level is staff works for the senator, and that's absolutely right, the senator doesn't read every piece of work that comes through the committee, and nobody thinks he should. what he does is he relies on staff, like everyone else in the united states outside the judiciary, we do have law clerks, too, but they go over everything. and most people have systems, and the system there is my goodness, that staff person

better be alert to what's in the interest of and the desires of the senator for whom he works. so these things are run -- we never let anything get out of the judiciary committee without showing it to everyone. there weren't any teenagers who work there but i have nothing against teen ablers. -- against teenagers. but early 20's. and one thing that system isn't, just as the presidency is a system, just as the department of agriculture is a system, and one thing it isn't, is a system where every senator reads every word of every bill. how many senators go through and read the words of a budget bill? nobody. for what? there is a system. and if people don't like the system, they can elect people who will change it. so the notion that it proves anything to say that the senator hasn't individually read the report or followed it or read the bill or read every

word is to say that is a criticism is unrealistic and a lack of understanding how the senate or congress or the presidency or most organizations in the united states actually work. and we have to deal with an organization that is capable of passing laws concurrence -- in accordance with the powers given to them by the constitution of the united states which is the whole point of the constitution. it doesn't work so badly. and as i say, part of it is that the staff is highly atuned to the needs, desires, and reaction of the person they work for. i see nothing wrong in that. i don't apologize for it and i think our judicial system which long has, should continue to take that fact into account. >> i'll tell you what's wrong with it, stephen, you compare

what happens in the legislature to what happens at the departments in the government. no. that's absolutely wrong. the legislature is like the judiciary. legislative power cannot be delegated, just as a judge cannot delegate to his law clerk the decision in this case. he can let the law clerk write the decision but the judge has to sign it. it cannot be signed and nothing the law clerk says or thinks has anything to do with the law. and it is the same thing in the legislature. that's why when a senator or a member of the house is going to be absent, he has to pare his vote, he has to find somebody on the other side who is going to be absent and they just cancel each other out. he cannot tell his assistant, you know, you go and vote on my behalf. it is forbidden. legislative power is not dell

gabble -- delegatable. a congressman can't say it's too hard to run the district of columbia. from now on what the district of columbia says it's ok, they can take care of it. foreforbidden. the constitution says it must be legislation by both houses of congress and the members of congress may vote -- must vote personally. and it doesn't matter whether they know what's in the bill. they can be fall down drunk when they vote for the bill. but when they take the active voting for it, that is what makes it a piece of legislation. and to say that oh, all of the back room conferences with staff become part of the legislation is such a distortion of what the traditional notion of legislative power has been. the staff cannot decide the meaning of legislation, which is what you let them do if you use the words in the committee

report. which has been drafted by staff, is never voted on even by the committee. >> look at the logical leap here. as you yourself said what the legislative power consists of, and i certainly agree with you, is the nondelegatable power to vote. there's nothing in that that says the senators himself or member of congress has to write the bill, and indeed they don't. and now our question is not about the nondelagable power of voting but what was the meaning of that which was voted upon? and in respect to what is the meaning of that which is voted upon, there's nothing in what you've just said that requires us to blink our eyes to the institutional reality which is there is a large, complex system for passing laws of which senators are aware, and if we want to understand what

this technical meaning is in section 867315 of the bankruptcy act of 1928, we better look to see not just the words that were in front of that senator, but much that went into the production of those words, and that's why unless you want to have a totally unrealistic process in which every word in a bill becomes a bible of 4,000 different words to foresee every situation, you have to understand what they're driving at. and to do that, you have to look to what the purpose and to what the system was that produced those words on the piece of paper. and the committee report and the floor statements are helpful in that respect. what were they talking about?