unprecedented and very dangerous conditions that unprecedented and very dangerous will change our history as a whole. the future will rely on how we deal with this phase we are going through and to what extent we are ready to face these challenges. there is no doubt that you are following with us the dangerous developments. you know what israel is doing against jerusalem and the citizens of jerusalem. for some time, the behavior has been escalating in this sacred town. there is a concentration that did not have many decades.

the building of settlements has become a daily behavior and they are implementing the ethnic cleansing. --. . the first and second of the mosques and the third of the holy places in islam has become a target of the occupation and the israeli extremists. these campaigns target the sacred places of muslims and christians, seeking tho alter the islamic and arab identity and to isolate the sacred town and to isolate the sacred town from the west bank, which is a on that seeks to force the negotiations of final status. in obstruction to the peace process as a whole, it was a

clear breach of the agreement and the commitments and the guarantees that were presented, including the american guarantee letter that was given to us in the madrid peace conference and also the other declarations of international legality and looking down on the feelings of muslims and christians in the world. i always said, my brothers, and i renew faith again today, that jerusalem is the jewel of the crown. it is the door and the gate to the peace. we reiterate that playing with the sacred town by the occupation is enhancing the fire of conflict and furthering the crisis and starting new wars in the region.

we, as we salute today the practice of our people in the holy town as they face off with the rest of our people, everywhere, the new tasks against the mosque and against jerusalem. we renew our commitment to every grain of soil and every brick of jerusalem. we are committed to defend the capital of our country and to defend the church of the nativity and all the sacred places. we are determined that to support the courage of our people. we reiterate that there will be no agreement that will not guarantee the end of occupation to our land, and number one jerusalem. there is no meaning of a palestinian state without jerusalem being its capital.

brothers and sisters, at this time when we are fighting to defend jerusalem and our nation, our people, we are facing a confrontation -- a very heated confrontation on the peace process. we have welcomed all the sincere attempts to relaunch the peace process. we have welcomed the new directions of president obama, particularly the two state solution. we worked with the u.s. administration in a continuing effort to translate this vision into reality. we are preserving the principles of our position that were determined by the arab summit and the arab initiative, as we have reiterated these positions everywhere. we never came under influence and we did not abandon our role. we cannot allow for the

palestinian voices to be absent from any form. but we wanted to be brave and courageous and present to defend our rights. we have reiterated in all international forums that we are committed to the peace option, with which we believe. we believe that it meets the requirements the international community has established, and president obama, to relaunch the peace process and the negotiations, one of which is the total freeze of settlement activities in jerusalem and the rest of the occupied palestinian territory. the clear statement of the framework of the peace process -- we have found understanding of our position in the world.

they understand the uselessness of negotiations while israel's activities continue, and the understand the absurdity of negotiations at the time when the occupation keeps working to delineate the borders that respond to its expansion must be used -- its expansionist views, and this country with provisional orders that we reject. we reiterate our rejection today. i understand now that any peace process is doomed to failure as long as it lacks a clear framework based on what the international community and the international legality has determined. this has been cleared through the u.s. envoy, george mitchell, in what we called the proximity talks, of which you have been

notified through the follow-up arab committee. mr. mitchell has said the that the framework or the time frame would be 24 months for talking about all the final questions and solutions and that the borders of the frontiers would be set within the first 12 months. our work to relaunch the peace process on its previous tracks -- we are committed to all the arab initiatives and joint coordination with all of our friends and brothers in all our steps. but the continuation of negotiations needs real partnership and sincere partnership. this partnership is contingent

on faith in the true intentions of the other side, the israeli side, and its commitment to the letter and spirit of the previous accords. there is no need for resuming negotiations without agreeing on previous agreements. the decision of the palestinians to relaunch these proximity talks under the auspices of the americans -- this is not possible if the change in the situation on the ground, continuing the building of the settlements by the current as really government -- by the current israeli government, which has continued to commit crimes against our people. gentlemen, i continue to say to

the arab people that jerusalem and its surroundings are a responsibility that god almighty has bestowed on us. the settlement and the risks of division we need to stop all of that. i call on you to work seriously and swiftly to defend and to save jerusalem, to reinforce our opposition to this -- to preserve its cultural and religious identity. i want to reiterate the importance of us working on a number of points. one of them -- to call the international community, particularly the security council and the european union, and also the international organizations, particularly unesco, to not recognize any

unilateral steps that israel undertakes in jerusalem. we put the responsibilities -- they take the responsibility to stop such measures in the historic archaeological sites in jerusalem, bethlehem, and galilee, and the rest of the occupied palestinian territories. save it from the israelis. there are more than 150 such archaeological sites. the israelis are working to include them as archaeological jewish places, as they claim. they need to send international monitors to observe the israeli breeches on the ground and to prevent them from happening and to provide international protection to our people. no. 2, the arab group in new york needs to call for a special

session of the general assembly to condemn the actions of israel in jerusalem and to impose the international illegality on israel as an occupying force that has no right to change the situation in jerusalem. number three, to mobilize the support of the arabs and moslems and incorporate with the islamic conference in jerusalem to stop the actions of israel in jerusalem and to mobilize international opinion to stop the aggressions on christian and muslim heritage in jerusalem and to realize that east jerusalem is an occupied land. all the measures the occupying force undertakes are nil, as east jerusalem is the capital of

the palestinian state. number four, to give immediate financial support to increase the support that was agreed upon in beirut in 2002, which were directed at the sites -- up to $5 million to preserve and enforce the resistance of the palestinians in jerusalem through these funds, the arab funds. they also need to implement developments in the sacred towns to reinforce the presence of the arab populations there and to work with the palestinians and the palestinian budget. 58% of the budget is now being dedicated to our people in gaza. number five, make a plan for

arab action to put jerusalem -- the secretary general needs to call on the arab league ministers to follow up in the coming three months. mr. president, majesties, excellencies -- saving the two states solution and the risk is facing and the peace and security in their region need swift action to impose on israel -- to declare a clear position of accepting the two state solution on the borders of 1967. i say the two states solution. israel does not believe this option. it is not working in this direction. we do not know to what direction

they want to take us. israel needs to be forced to stop all settlement activities, as the road that stipulates. implementing these points is necessary for the possibility of success for any revival of the political process which might lead to ending the occupation and lifting the siege on our people, particularly in the gaza strip. they must open safe passage to protect the unity of territory of the palestinians and preserve the possibility of having a contiguous, sovereign, independent palestinian state. we reiterate our acceptance and our welcome to the statement from the meeting in moscow on march 19, 2010, as we welcome

earlier the statement from the european union in december 2009. both are important. more important even is for all the parties of the international community, particularly the u.s. administration, to act sacred places of muslims and -- find mechanisms to force israel to implement what came in those statements. the frugality of the israeli government towards the future of peace and security in the region, not only to enforce to implement the agreements, but to take concrete steps to impose on israel to stop the settlement activities. my brothers, at a time when we are facing these challenges on

jerusalem and on the political front, we have been in the continued to be working on this very hard fulfill the national reconciliation and to stop the divide that has been forced on us. us by hamas in the gaza strip in june at 2007 and to regain the unity of the land of our people, and our institutions and political regime, and to put an end to the siege our people in the gaza strip face. we have responded with the efforts of egypt, with the support of the arab countries, which ended into the egyptian reconciliation memorandum which came as a result of many months of work.

5 california has signed this letter -- fatah has signed this letter and has lifted the obstacles to national unity. we say today that home loss needs to sign this paper, too. -- we say today that hamas needs to sign this paper, too. we believe in going back to the people and going back to the polls. this position is derived from our commitment to protect our loaws and our beliefs, to refuse violence and to refuse weapons. our interest in political action is to face the policies of occupation and its animosities. occupation is the only

beneficiary of our rift and our divide. that reconciliation reinforces the positive action of the international forces. i thank you all for listening. i am confident that we will come out of this summit, this very important summit, the summit of jerusalem, with great success -- with what is necessary and needed and what supports the steadfastness of our people in jerusalem and its defense of its sacred places, >> coming up next on c-span, a discussion on constitutional law with the supreme court justices scalia and briar. and then a group known as the coffee party holds a forum here

in washington. >> when i hear brother obama say this, black people helped make him president of all of america. >> coming up, travis smiling's form. at 830 eastern on c-span2. >> mr. gorbachev, tear down this wall. >> whether you are researching former presidents or just watching their spouses or if you missed an of an from the white house yesterday, you can watch it or share it online.

every c-span program since 1987. this is cables latest gift to america. >> this is c-span's america and the courts. up next, the justices scalia and justice briar. the supreme court historical society hosted this discussion at the supreme court on tuesday. >> thank you, ralph. i think the supreme court historical society for and biting my class to attend but tonight. we're very fortunate in having to distinguished the justices so willing to discuss publicly the differing approaches to constit.

in our core said georgetown, we have taken a historical look at cases involving civil liberties. it will not surprise to that one of our justices saw all the laws but one. this was a decision written by the chief justice that president lincoln did not have the authority to suspend the writ of habeas corpus but that only someone subject to the articles of war could be brought before a 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 surrounding the words, what does habeas corpus mean? --

we look to see what the purpose or the value is underlying that particular phrase. that is five. and sixth i think we all do and that is look at the value. if i can justify him, he is happier when he is only looking at the first four and i am happier when i am looking at the last two. i mean a happier one i say that i think the by looking at those last two things, that we can better carry out that the initial intent that this document will, in fact, government a change in society as society changes over the course of this century. i do not want to put words in justice scalia and's -- a

justice scalia's mouth. i think those are subject of ideas. substituting those subjective ideas for something objective and that is risky. he can confirm whether that is true or not. i'd think that there is not much of a risk, but he thinks that there is. >> if there is 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@@@@r >> they all said we cannot have that. i agree with that. but now, the question is, can you produce the witnesses in

court? ok, that sounds good. but suppose that if you cannot produce them, you cannot produce the evidence. that sounds pretty good. but suppose that the reason that you cannot confront, the reason you cannot produce the witness is because she is dead and moreover, this defendant is on trial for killing her. he killed the witness. now, can you introduce 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 abandon purpose, as soon -- as soon as we are there working with words to guidance we know not what, then we can reach all kinds of results. and then the result of something working badly is to say that he did it. we did not want to vote for that. the day are trying to be held responsible. one system is consistent and adhere to a democracy. the other kind is not. i am speaking in general. you can find examples, but i think that is true. i think that as a better reason

for following purpose. >> do you want to say something, jim? what i do not want to get in the way. but how do you discern the purpose? >> the only way that i know is the text of the statute that congress has enacted. . . 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@@@@@@@ @ '"rr 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? they'll say there are abuses of that. indeed there are. and the answer is to learn how to work that as a judge so you don't pay attention to the abuses, so that you understand all that's at stake is two warring parties trying to get in the floor statement what they couldn't get in the bill and that you'll understand as well when that isn't at issue, and when that legislative history is enlightening and all i can say is it requires a lot of experience and you can do it better or do it worse but it's no harder than trying to work with some kind of historical thing that happened in the 15th century that was reported in the 17th century and blackstone said something about it in the 18th century or the 19th century and i don't know about it. >> now we're back to the constitution. i thought you were talking about statutes and legislation and some good examples.

>> well, well, i think -- >> the roman emperor caligula is said to have had the practice of posting his edicts high on the pillars so the people could not read it and would be fooled into disobeying it. a government of laws means that a law ought to mean what it most applauseably would -- plusibley would be understood to mean by the people to which is promulgated, not what justice breyer -- justice breyer has a very exalted notion of the role of congressional staff. >> i was in that role for two years, so i can understand why that exists. but that is no way to run a system of free men and women. the statute should mean what it

seems to mean. and not what the first person to draft it had in mind. . >> >> it is relevant to the constitution.

the real question that came up is not something we're only you read the words, but you know the answer. it is more like the word "cause " you really do not know. on that kind of a case, that post has nothing to do with it. what we are looking for is a way to find out. >> go back to the constitution. >> i think that the words are quite simple how you can find a right to abortion in the due process clause is so far beyond me that i cannot express it. even the people who agree with the outcome of roe vs. wade, they have admitted that the legal reasoning was flawed.

once you say the word liberty isn't anchored, then you have to wonder what is liberty. you have to give the court an enormous power over democracy because every new thing that we do bridge's democracy. it means that you cannot vote on that anymore. it is not up to the people anymore. it must be this way. that is simply not the road that we must go down. if we want a responsible democracy, only on important matters do we go 12 significance of such as whether there should be a right to die.

all of this really important stuff. we cannot possibly dispose of those matters democratically by debating with each other and voting. all the really important stuff has to be decided by the supreme court. by deciding what the purpose of the word "liberty"was. >> it was probably the word "rebellious." -- the values. if we understand what the heart of this is, we begin to understand how to apply it. that is a general statement. we then see how it is done. this is usually pretty

difficult. and there we are permitted that -- what else can i say? i am comfortable and you are less comfortable because this -- i am comfortable because this is the heart of the matter. when you get to the heart of the matter, and that is why i am after, and then what about the fringes? i am characterizing you, and you are better at that. you like it better if you could have it clearer. i would say that there is a tradition along that line, and sometimes that is called for and i think there is a tradition in

my way, too. sometimes that is called for. that is the best i can do. >> gentleman, we have been over an hour. we are on my third question. but i think our audience has been treated to an amazing evening and i have managed to stay out of the way. but we do have refreshments afterwards and we are most grateful for your taking the time out of your busy schedule to share your approach to the constitution. >> i think i persuaded them. i think i made some progress. >> it has been a great beer summit. thank you. [applause]

>> you can watch this program out our website c-span.org. just click on "america and the courts." join us next week for

. >> in the coffee party, a

movement founded in response to the tea party movement held several meetings across the country this weekend. one of the advance was held here in washington and was attended by one of the coffee party's co- rounders. -- cofounders. >> i wanted to start out by thinking our host. -- a thinking -- thanking our host. we are thankful to be here. we have two special guests for today. this is unusual. we normally get together and break up into smaller groups. but today, we will introduce our focus, which is how to improve the legislative process.

how to have better representation in government and how to make our democracy better along those lines. that is the beginning of starting the movement. many of you know that i and the crazy person that created the web page. two months later, here we are. i sought a very dysfunctional government. after spending one you're watching the health care debates, which looked like a legislative train wreck, i said that this says that all. what is wrong with our process? i do not know what the solutions are, and i am glad we are coming together as a community to come up with solutions. that is why the vice president

of government studies is here and when that is a senior scholar at the woodrow wilson center. she wrote the book "the freshman: what happened to the republican revolution?" we need to have a rich discussion about what potential solutions are. we will talk for about 40 minutes and then we will open it up to a conversation with all of you to hear your thoughts and feedback. i will start with beryl. why are things so bad in washington? >> first of all, i want to thank you for organizing this. it has really been an amazing

week in washington d.c. because congress finally passed health care. it was a historic achievement. i think that everybody understands what difficult a journey that was. despite the passage of health care reform, we still have a huge problem with government and our political system. our system is broken. we are awaiting action on other pieces of important legislation, climate change, financial regulation, immigration reform and a host of other issues. when you think about what the problem is, it seems to me that there are different aspects that need attention. one is a problem with congress and the declining institutional performance that we see. in the senate, we have moved from majority role to super majority rule.

this is having to build the filibustered much more frequently. there were six or seven filibusters' per year and last year there were 130. we need an unusual majority to pass any legislation or even to get people confirmed or take basic action on the part of that. a supermajority requirement is devastating for any political system. that is something that we need to change right away. the atmosphere of extreme political polarization, the partisanship that we have seen for a number of years is highly problematic. a few weeks ago, cnn had a national public opinion survey and it said that 86% of

americans felt that the federal government was broken and that the system was not working. if we could spend a lot of time dissecting the problem, i am sure that everybody has plenty of ideas of what the exact nature of the problem is. i would like to take a minute or two just to talk@@@@br >> i want to talk about a few concrete things that people should think about doing that would help improve our system, make congress more functional and help restore public confidence in government. for example, filibuster reform has to be at the top of the list. when people talk about congress being broken and what we can do about it, if i were the czar and could impose any one thing, the one thing i would choose is

reform the filibuster rules because when the founders originally set up congress they wanted it to be a deliberative body. they didn't want congress to rush into any action. but they never envisioned the filibuster as a way to stop legislation. they wanted it to slow down the process so the process would be thoughtful, deliberative, aç variety of differing points of view would come into the process. but the fact that you could hold up legislation for months at a time is contrary to the ç constitution. tution. you could reform the filibuster in a variety of ways. you could basically allow filibusters and put time limits on it. over time, the threshold would start to drop. they could filibuster for up two

weeks. and eventually, the majority would drop to 51. it lowers the threshold and imposes a time limit so that you cannot use this procedural mechanism to stop legislation. that would be critical. any one senator could put a hold on a confirmation proceeding, and that means that the senate cannot act as long as that hold is in place. president obama has only 60% of its senior managers that are subject to senate confirmation process. he is not operating with his team because there are a lot of people that have not yet been confirmed by the senate because of senators have put a hold on them.

a lot of times, the whole will have nothing to do with the individual merit of that individual. they are basically engaging and taking that nominee hostage. this type of stuff has got to come to a stop. we need campaign finance reform. we could talk more about this this could open this to american politics. i am hoping that congress could pass legislation that would put a limit on that. otherwise, the 2010 election as one to be awash in big corporate money and will have an effect on what happens. we need to address redistricting. there are lots of things that people can do. i applaud you for coming out early on a saturday morning and

being interested in thinking about the steps that we could do. >> a quick question before we go to linda but i have been dying to ask. >> how do we get rid of the filibuster rule? >> unfortunately, to change any of the rules requires 67 votes. that is basically the rules. if you really want to bring change to the senate, you actually require an action by the senate and it will take at least two-thirds to change a filibuster rule or change the requirement to make any rules changes. the senate should make its rules for the two. between the elections and that at the start of a new senate, the senate should be able to

make rules changes by a simple majority vote. that would mean that every two years, if there is a need to change the rules work with the process or raise the filibuster or lower the filibuster, that senate would have the power to do that. there is a group of young people in the senate. they are committed to doing this. this is not a partisan issue. right now, democrats have majority. it is very conceivable that republicans may have the majority after elections. democrats will be the ones in -- be the ones engaging in the process. republicans will not be able to to any thing when they are back in charge. if there has ever been an area where there should be bipartisan agreement between democrats and republicans, it should be on rules changes. >> so, linda, give us

perspective here. do you think that it is really bad or has it always been this bad we did not notice it because we did not have multiple cable channels? can you give us some perspective on this? >> sure, thank you for having me. it is great to see all of these people on a saturday morning. last weekend, i went to prince william county to one of the first coffee party meetings. i think that people are angry. i think that people still -- people feel ill served. i was one to write my notes on my hand, but i had too many notes, so i brought them with me. 93% said that there was too much partisan fighting between democrats and republicans and very little cooperation.

i think that, across the board, whether you are a conservative or liberal, people feel that there is too much partisan fighting. i am curious about who is in the room. for those people that are watching at home, this is a sort of a hip area of washington. we may not have an exact cross section here. how many people here think of themselves as republicans? >> there were no hands raised. how many people think of themselves as democrats? how many think of themselves as independents? >> just about as many hands are raised as independent and a democrat. . .

sort of the largest block in about 70 years. i think these independent centrists who are the voters i'm particularly interested in, because i think they decide elections. they are -- everyone has heard about ohio and these swing states -- colorado, virginia has become very much a swing state. new hampshire -- these states decide the presidential elections and specifically these voters in the middle in those swing states decide who is going

to be elected to the presidency or congress. so, these are very important vote voters, and they tend to make their choices based on issues and on the candidate, not on the party. they elected ronald reagan, bill clinton, george bush and barack obama. and scott brown for that matter in massachusetts. so, i think that annabelle's question about is it this bad. she mentioned that i wrote a book about the 1994 elections and the republican revolution and 104th congress which followed, the gingrich revolution. "the freshmen, what happened to the republican revolution?" i was working at n.t.r. at the time and i remember travelling to oklahoma and talking to voters the summer and fall before that 1994 election, and they were very angry.

they were talking about term limits. they had wanted to throw the bums out, they didn't like the negative campaigns and commercials on either side. they were upset with the system. that is what brought us the republicans. much more so than the contract with america. the 1994 election was development an anti-democratic vote. vote rather than a pro- republican vote. it was two years after ross perot ran for president and got almost 20% of the vote, if you can remember that. that was a time when people were very upset about the deficit, very upset about government spending, very upset about the economy -- a time of economic instability. whenever we have economic instability, people are concerned and nervous and upset about their government. and i think they are worried about the bank bailout and they

are feeling that main street -- we are helping wall street but we are not helping main street. and i think people are just very unsettled right now. as daryl mentioned, one of the factors i think is fueling this discontent is this hyper partisanship and polarization in congress. moderates are disappearing from congress. you used to have a solid block of 30 or 40 moderate republicans. they have dwindled down to less than a dozen. moderate democrats -- you have a few more moderate democrats, mostly from the south and midwest. they are the most endangered democrats for reelection this time around. those moderates do not have a strong voice in congress, and i personally think that for example the health-care debate and the health-care

negotiations would have been very different if we had a strong, a vocal bloc of moderates in congress in both parties who could make their voices heard. i think we would have had more bipartisanship in congress if that were the case. i am curious. when you think of congress -- the pew at research center -- the pew research center did a poll. what is the first word that comes to your mind when you think of congress? >> corporations. >> corporations? dysfunctional? that was the number one word in a pew research survey period of 20 words -- the top 20 words -- not one was positive of congress. dysfunctional was number one. corrupt, self-serving, confused,

incompetent, ineffective, lazy, bad, suck, poor, crook, disappointed, gridlocked, idiots, slow, lousy, and terrible. [laughter] those were the top 20 words. if i was a member of congress would be pretty concerned about my job security. as annabel mentioned it two weeks ago, if this was any other job, if that was your supervisors -- the people are the supervisors of congress. we are their employers. if that was your evaluation from your supervisor, you would really be in trouble. and so it is a serious situation. so, you know, that is pretty much it. i think those elected to congress pretended to be at the extreme ends of the political

system. republicans, because of redistricting -- congressional districts tend to be very safe. once you are elected to congress, incumbency retention is very high. you have some years like this one, 1994, 2006, when you have a turnover. districts are designed to be safe for the incumbent and be saved for a republican or safe for a democrat. republicans have become more conservative. democrats have become more liberal. there is not much in the middle. is this a bad situati i have a couple of questions. one for darrell and one for linda. for linda, evan bayh has mentioned that he felt like the polarization in congress is a reflection of polarization and chronic cultural divides in the country among the people.

i wanted to know if you agreed with that and i'm going to ask you the question so you have time to think about it. i want you to help us understand institutional reasons why we have people that are so partisan in the congress. does it have to do with, say, the primaries? i just want you to think about that. linda, do you agree with that? >> that the country is polarizeç as well asç congress? i think there is something to that. i have spoken with efficient va. he is leaving congress. to a certain extent he is a moderate. he is one of the more moderate democrats in congress. i think that he has felt somewhat stymied. he has decided not to run for re-election. he's from indiana. i know that he and lindsey tpwraeufrpl, a republican, have writtenç a letter to the leadership of congress and asked

th them, can't we have monthly meetings where we all get together and have lunch and talk about our issues. members of congress do not get together as a body. the republicans meet in one room, the democrats meet in one room and they never get together. all they do is fight on the floor. the time was when they used to go out to dinner or socialize with each other. they don't do that any more. a think to some extent that does reflect the larger world. i think we probably can to socialize with people who agree with us, and i think the media has become -- i am a journalist. i have been a journalist my whole life, and i am concerned about what has happened in the media. i am very concerned. when i was putting things together last night for this, the phrase -- remember the navy recruiting phrase?

it is not just a job, it is an adventure? that is the way people used to feel about journalism. it was an adventure. it was an exciting pursuit. you were doing the people's business. it is not an adventure anymore. it is kind of like a bad amusement park ride. the economic conditions are so rough for the media right now that i think there are a lot of factors that have made a lot of -- there is less reporting and a lot more opinion out there now. i think there are a lot more websites that sort of espouse a lot of opinions, and i think people can read what they want to read that agrees with them. i think a lot of times they are not getting different perspectives. i also think the talking heads on television kind of reinforced this. they can be very shrill. it can be very sensationalistic. do we need another story about brittany spears's underpants or

sandra bullock's cheating husband or whatever the story du jour is? i think there is not enough substantive stuff. there is out there, obviously, the news hour on pbs. there is good stuff out there. but there is also a lot of crap out there. i think people have to really work to be well informed. it is work to be a good citizen, which is why you guys are here and why i really applaud you. it takes a lot of work to be an involved citizen of a democracy. and that is what we need -- more active citizens who are going to make their voices heard. >> i agree with many of the things linda just said. when you think about why there is so much partisanship in congress, redistricting is crucial. we basically created districts that are very liberal and very

conservative, created safe seats for 95% of members of congress. centrists and their voices are not heard very well. the media system aggravates this. the media system has become polarized and fragmented along with the political system. the information system of a society being polarized and sensationalist -- you should not be surprised when the political system moves in that direction. the other thing i would point out, which we have not talked about as much, is the fund- raising system. you have to keep in mind that only about 5% of americans make contributions to political candidates. it is a very small group of americans. when you look at the republican fund-raising base and the democratic fund-raising base, it is a system that essentially rewards extreme political views. republican donors tend to be

more conservative than their party as a whole, and certainly the country as a whole. on the democratic side, it is the same thing. democratic donors tend to be more liberal than democrats in general and the country as a whole. as our system of elections has been, more expensive -- have become more expensive, they are spending more of their time doing fundraisers. the people they are talking to are much more extreme than the country as a whole. there are some people that blame public opinion for the polarization, but that is not supported by public opinion data. on most issues, american public opinion still resembles a bell curve. many of you have -- 20% liberal, 20% conservative. the bulk of america is in the

middle on a bunch of issues. the problem is a mismatch between public opinion and congress. congress is much more polarized than the public in general. >> in terms of the causes for that, you are saying it is about fund-raising -- the reality of fund-raising and the media? i am trying to see if we can figure other causes that can help us with solutions. can you think of other things that contribute to that? it is a big mystery to me. >> i think the institutional factors are a big part of the problem -- the money system, the way congress is structured, the gerrymandering that takes place at the state level. i think it is not a big mystery when you look at it. how you go about solving the problem is much more difficult because on redistricting, that is done by the state legislatures, subject to

gubernatorial vetoes in each of the 50 states across america. if you really want to get involved in the political process, we are having the sense is that takes place. i hope all of you return your census forms by april 1, the deadline. the reason why that is important is that the legislative redistricting will come out of the census numbers. literally, in 2011 and 2012 is when the big redistricting process takes place. people need to pay attention to that. it is one of these issues the general public does not pay much attention to, but it is one of those things. if you are upset that congress does not address health care, climate change, emigration, or anything else, redistricting is one of the root causes. >> before we start our conversation with you all, i want to kind of bring friends this way.

one of the things i have seen with the coffee party phenomenon and movement is the fact that it seems like, as you mentioned, there is so much concern that some things have to change. people are tired of fighting. people come to facebook and on the website with a sigh of relief, like "thank god people feel the way i do." i think we feel sometimes alone in this, feeling like there is only -- like we are the only one seeing what is wrong in the system and feeling so alienated from the political process. i think that as someone trying to start a grass-roots movement i want to address that alienation, the sense of alienation people feel from the process, in an ongoing way. there are campaigns. we have ways we can plug into the campaign process. beyond that, in an ongoing way, we do not have good

opportunities to have input -- to have our voices heard. i wanted to see if we could talk about solutions considering that. we have to get people engaged in order to make these institutional changes and to change our culture. >> i have some thoughts about that as someone who covered congress for a long time. i think you can make your voice heard, and i think you need to do it. i think people need to do it. members of congress -- we talked about fund-raising. it is true. they spend way too much time fund-raising. lobbyists give them donations. lobbyists buy access. and the former member of congress will admit it. but not necessarily buy votes, but they do buy access. the thing that trump's money is votes. the whole reason to raise money is to get votes. if you are the voters, you have

the ultimate power and can make your voices heard. organizing is one way. a group of 10, 20, or 50 is more powerful than a group of one. you can ask to meet with your members of congress. we are just headed into the easter/passover break. members of congress will be home for a week or two and will be holding town meetings. i suspect there will be a lot of tea party people showing up to protest the health-care vote this week. there has been a lot of ugliness over the past week and it is very disconcerting -- harassment, intimidation, vandalism, and this kind of thing. if you show up and meetings and say this is not how we want to behave in a democracy, we want to make our voices heard but this is not how we could work together, i think it can make a

difference. if you establish a dialogue with your elected official -- you check in. you write them e-mails. you write them letters. you phone call. the show up to town meetings. you get them to know who you are. you get your friends involved. this is what members of congress will respond to. they want to be reelected. they want to keep their jobs. they want to respond to their voters. that is how you do it. boaters can really make an impact. they really can. it is hard work. you have to stay on top of it. think of them as your employees. you are managing them. there are a lot of other more interesting things to do. but it takes work. but you can do it. i fervently believe that voters can have an impact on the system if they make their voices heard.

>> jenny is going to come around with the microphone. before -- can i see a show of hands how many of you have questions so we get a sense? while. ok. -- wow. ok. do you want to start from the back and move forward? how many of you have taken this on our website? this is 8 tool that helps us get a snapshot of where we stand politically, individually and nationally. it is an incredible tool that shows areas where we agree and areas where we disagree. it is absolutely extraordinary. sticking to this whole idea that we are very polarized, if you actually look at the data from the sphere, you see that where we expect division by gender, by

race, there is so much more agreement than disagreement. i want you to take a look at the sphere and the data. i personally think -- and i think this accounts for why there are so many independents -- is we are actually not that polarized on a lot of issues. it just seems like we are -- the story that comes out of the media is that we are very polarized. it's sort of thrives on that kind of conflict. no offense to all the media in the room, by the way. so, any of you want to -- >> i am jan johnson. i have been involved since i was a teenager in los angeles. i work for the federal government. i think there is a better way to

communicate with congress. i was in immigration in march. i cannot make my voice heard by staff or by e-mail because i am always shy. are there better ways to increase that message to make i and other voices heard in washington d.c. -- washington, d.c.? our hands are tied behind our back. we are working in a job or we cannot do these things on the job. >> i think one of the most important things you can do is write letters to members of congress. you can write columns for various media outlets.

you can use technology to try and express your viewpoint. i think technology has opened up many new opportunities for citizen activism. we saw that during the 08 presidential election. we're seeing it among conservatives right now who are unhappy with the current direction of the administration. i think there are lots of vehicles out the key thing is really making it a personal appeal onç your part. members of congress get flooded with communication, but a lot of them are kind ofç mass written generic things. they really want to hear from their constituents and they want to hear your personal stories about what it is, how things are affecting you and what your ideas are. >> i tphknow we are organizing coffee with congress in april. we are going to break up into groups in about 20 minutes and

discuss like what we are going to actually tell our members of congress. >> i'm a senior democracy fellow. i wanted to shine a spotlight on something you all alluded to anç crystallize it, which is how interconnected the different breakdowns and different areas of democracy are disconnected. we have filibuster reform, we are talking about redistricting and campaign finance as far as democracy. so, it is something that is addressed more than justçç th different siloç efforts. in one person the system has beenç brought up that needs toe part of the picture is the breakdown in the electoral

process. we had better turnout inç 2007 and 2008 but it is still extremely low and the electorate is skewed. far more people are voting. in addition to the members of congress and other representatives responding d disproportionately to people that give them money, they are also responding to people that come out and vote and a lot of this is skewed to actual institutional barriers in the voting system that need to be addressed as well. be addressed. >> especially in midterm years -- this is a midterm year and it has been a superheated political year with the health-care debate. but voter turnout tends to be much lower in mid term election years than presidential election years. as she pointed out, the independent voters tend not to

vote as often in midterm elections as they do in presidential elections. in primaries, you have the ardent liberals and conservatives coming out and voting. that is what you end up with with to get elected. it is terribly important that people turned out and vote. >> there were demonstrations in massachusetts because scott brown, the new senator, won his victory in a relatively low turnout election because it was an off-year election. but he is just filling out the current term. he comes up for reelection in 2012, a presidential election year. turnout is going to be higher there. massachusetts tends to be more democratic at the statewide level. president obama is going to be on the ballot. it is going to be interesting to watch how senator brown votes over the course of the next two years. he is someone on whom i have high hopes that he is not always

going to vote the republican line. if he does that, he is probably going to lose in 2012. >> this is a question for linda. you talked about the negative perceptions of congress, which is sort of a big, faceless institution. what about the traditional point that even though people think congress is bad they like their own representative? that is a big problem. >> that is true. that is what the polling shows, although this year -- typically, polling shows that people may know or like their own individual member but as a holding congress is not doing a good job or is not a good institution. however, this year polls have shown they do not think anybody should be reelected, both

republicans and democrats. no incumbents should be reelected. i think the discontent is so high this year that i think it is hard to point to, at this juncture, while democrats -- will they all hold on to the majority or will republicans get it? i think all incumbents are at risk this year because i think voters are so angry about the lack of action. again, the passage of health care -- very hard to see, in march, how that is going to play out in november. it is way too early to know. i think we had -- i hesitate to say her name in this room. we had sarah palin yesterday saying the republican party is not the party of no -- we are the party of hell no. that may play with her right wing base, but that is not going to play with independent

centrists who want some activity, who want some action. it is going to be interesting to see how the voters react come november. >> you want to start? luks many of the people in the room -- i am guessing they are voters from the district of columbia. we continue without representation. i have written to other members of congress who are really my representatives, but they blow me off horribly both in letters and in phone calls because i live here and not their constituents. they view me as a nonentity. how can we influence -- how can we do more to have an influence

and to get some federal rights? >> i think that is a good question. it certainly is the case. members of congress are much more interested from hearing from the people in their district and other states as opposed to anybody outside of their states. the advantage we have is really proximity. there are members of congress that are going out and doing events all over d.c. if you go out and talk with them, you have the opportunity to have a face-to-face dialogue that people in other states do not have. >> i know darrell and i are both registered in the district of columbia. i am very irritated by the disenfranchised voter. the democrats said they would do something about it. i guess it fell down on the list of priorities. to have a voting boys in congress -- i was very disappointed.

>> the copy party -- the coffee party -- this week shows a complete difference between the coffee party and the tea party. other than that, it is too soon to tell. i know it is a general question, but what are the differences between the coffee party and the tea party? >> two main things. we are actually not try to start a third party. it seems like from what i have seen with the tea party that they are very interested in starting something like a third party. what we are trying to do is really change our political culture, our culture, so that it is a culture where there is a sense of civic duty and a sense of honor and a sense of responsibility and participating in the democratic process. what we would love to see is to have the majority of americans participating in the democratic

process so that we have a government that truly reflects the will of the people. we deal with voter turnout. we deal with redistricting. all these things that are institutional issues -- if we can get the majority of americans as active citizens, we are able to resolve many of these issues. i mean, at the very basic level, the way i see the movement -- it is a democracy movement. people want better representation. we want better government. there is very wide consensus. the second thing is -- what social change. we want political change, cultural change. how will we get there? the methodology is very different from the tea party, from what we have seen. i am not an ex-member of the tea party. everything is translated to the media, so it could be wrong. a lot of tea party people say i do not understand them.

that is possible. but from what i have seen, i think there rules of engagement border on uncivil and destructive. what we want to do is have a methodology for social change that is really taken from the teachings of people like martin luther king -- non-violent, peaceful, and constructive. yes, it is passionate and it is often critical and challenging, but we are not trying to destroy our government. we know that we need the federal government to be part of the solution. again, i think with the tea party -- their rhetoric sometimes feels to me like we have declared war on the federal government. it is like they are enemies. we feel like that is not accurate. it is the only apparatus we have for collective decision making and action. we need the federal government to be part of the solution.

we want to have constructive, solution oriented conversations with people in congress, not go out there and say we are against you and everything you stand for. that is not going to help us deal with the challenges that we face. in terms of agenda and policy and all that, we have to come together as a community and practice democracy. we're going to have to learn to deliberate in a constructive way. that requires changing some of our habits and may be adopting certain language that is more about values and about policy. we have to go to the deliberation process. ultimately, as a community, we're going to have to vote. we're going to have to put together a process -- a lot of it will be on line -- where we deliberate and we vote. we're going to say this is what people believe then and we believe this is the majority of americans. that is how we're going to have

power. [applause] >> i think it is really important not to throw up your hands and say the system is terrible, there is nothing i can do. you all have heard the same "by winston churchill -- the same quote by winston churchill -- democracy is the worst form of government except the other ones. you have to make it work. there are no options. there is no choice. >> picking up on what the lady said back here about being disenfranchised, i think we should make it a priority in the district, in so far as we communicate with representatives elsewhere, to

have them put statehood at the top of their priorities and to lobby the president to come out for this. that is the biggest kind of redistricting you can do by adding two more democratic senators at some point in congress. fund-raising -- i am getting sick and tired of the dnc. i get about 30 e-mails each day from the vice president down telling me -- >> all the mouth away from recall the mike away from mouse. >> i am sick of being told 30 times a day to contribute. there must be a more effective way of raising money. during the presidential election, apparently it worked. but when you get 30 a day --

they do not care but my opinion. they just want my money. >> just tell them to take your name off the list. >> that is not going to help them make money. the big problem is to get -- >> can you move your microphone away from her mouth a little bit? >> is this better? how are we going to get the tea party and the coffee party together? there is no way to have a dialogue. i know we can come up with clever ways to do this, but i think maybe we can do this -- we can have debates or quiz shows where people answer questions about american history or they have debate contests with essay questions so people have to learn how to formulate what they're really believe in rather than just saying yes and no.

maybe it would promote debate. >> i want to clarify something. where i see differences with the tea party -- we are not the opposite of the tea party. in fact, we have people coming to our@@@@@@ it is an opportunity to speak up the community. we are not the opposite. it is not an either/or situation. but in terms of including them in our process, that is actually happening. on march 13, when we had close to 400 events across the country, tea party members did come to our events and it ended up being a very productive conversation. so, again, i think that is the direction we need to go. we need a new model of civic

participation. that is what we are trying to prevent with the coffee party. >> i'm a student at american university and i'm originally from rhode island, so, carol, i remember you from your days on nbc and expert commentary you used to provide for all of us. we have a candidate for governor in rhode island right now who used to be a moderate republican senator and i understand there are other candidates across the country who are sort ofç0centç independent candidates who don't seem to be in the tea party style, who seem to be moreç moderate both in politics and rhetoric and temperment. i w] wondering what theç pane thinks of the influence of independent candidates in this election even though you said the coffee party is not looking to start a new party. but whether or not you think the independents running across the

country and who are viable share the values of the coffee party and whether or not there is a connection there. >> what we are seeing across the country is an outpouring of candidates from a variety of perspectives. you point out a former senator who used to be a republican and now is running for governor of rhode island as an independent. i got a call from a maine newspaper. they have something like 30 candidates running for governor in their states. one of the virtues of a time when everybody is upset -- i am expecting turn out to go up this year in the midterm elections. we are seeing more candidates. summer going to the republican or democratic party. some are running as independents. i think that is a good outcome and shows the discontent leading to positive action.

[loud noise] >> i am awake. >> my question is -- [microphone feedback] i think that one of the problems is, in the media, we define partisanship as real differences between the parties. i think in multi-party democracy would be wonderful. we do not have one. the differences between the two parties are not enough. we have not heard a word about the war and the cost of war, things like what can we have health care, why can't we have

jobs. we're spending this year at $1 trillion. i do not think that is a partisan issue. but it is a partisan issue in congress. the representation you see does not get respected in congress. nancy pelosi is arguably representing the most liberal district in the country and yet she has voted for every war bill that has come across her desk, without exception. there is a problem with representation. we cannot find said tourism. the majority of people in this room who say they view themselves as independents -- it is not because they see themselves as in between this liberal democratic party and conservative republican party but because we think the democratic party has not represented debase them voted --

the base that voted for them. the question for me is control of the congress. it is not just about a civic 101 lesson about how we should talk to our members with public concern. letters are worth a lot. phone calls are worth a lot if you can get through. e-mails are worth very little. they are the lowest on the hierarchy of what matters. but we do not have access because we do not have input. it is not just about making a $5 donation. we are not the corporations. citizens united at the supreme court -- every election for the last however many years has been controlled by corporate money. it is a much bigger problem than just this one decision by the supreme court.

the question that i have is -- what is the kind of engagement that would allow us to transform, as the anti-war movement did, the political climate in the country. how do we transform that into a position in congress? 78% of the public are against the war in iraq and afghanistan. hawaii twitter's let -- how do we translate that to 70% of congress? >> if i can gingerly suggest that this room is probably not reflective -- this is a liberal room. it is probably not reflective of -- about the same percentage, about 40% of people identify themselves as independents around the country. about the same percentage say

they are centrist in their views. the smallest percentage consider themselves liberal around the country. i would say there is a difference between the democrats and republicans. i think we saw it in health care. there is a big difference. there is a difference in philosophy, and we saw it played out in health care as we have not seen it in a long time. democrats believe that government can do things and solve problems. they were very much pushing, perhaps, their potential political detriment. there were pushing the idea of expanding coverage. republicans do not believe that government solves problems. they believe that everything should be done by private industry, people should take care of themselves with private enterprise. there was a stark difference i think you saw played out in the debate over health care. i do think the parties reflect different philosophies. >> do you want to speak to money

and corporate influence? how fair is that. the think that is a fair statement that congress is controlled by corporations? >> is certainly is a fair statement, in the sense there is a huge amount of corporate money that goes into both parties. based on the citizens united supreme court decision, there is going to be even more of it in 2010. if you are worried about what you can do to stem that corporate influence, the model is obama's campaign in 2008, from a fund-raising standpoint. what he was able to do -- he was a charismatic candidate. there's a lot of grassroots discontent over the iraq war and other issues. out of that, they were able to mobilize small donors. obama doubled the previous record. bush had 1 million contributors. i think that was in the 2004

election. obama had $2 million, the bulk of which were small donors -- the $5, $10, and $20 donors. that is a new model of fundraising. if it can be generalized to other races, house and senate races, gubernatorial elections -- that would be the most transformative thing we could do. the problem is it has been hard for other candidates to replicate that model. obama was able to do that because he is a celebrity, he is smart, he is charismatic, and there was this grass-roots discontent. you need all those things. technology is starting to transform fund-raising in political races. that is a model -- my colleagues who are working on finance reform believe that is the way to go if we want to stem the power of corporate money in american elections. >> the american enterprise

institute is working on campaign finance 2.0. the next generation. their idea is to give an incentive to candidates to raise the bulk of their money in small contributions -- to incentivize this. 100,000 people giving $10 = $1 million. >> there are philosophical and differences that came out during the health-care debate. i think that is true. but many ideas in the bill came from republicans. >> there were some ideas that came from republicans. >> a lot of this -- i feel it is about gamesmanship. i feel we are still operating with his view that politics is a football game with two teams and it is about winning and losing.

they took certain tactical positions in this game about health care. the position that the republicans talk -- a lot of that was rhetoric to me. this is about big government. we should always be scared of big government. a lot of this is about smart government. it is not about big government. we need to take control of where the abuses are in the health- care industry. so that is not about big government. >> i think both things are true simultaneously. i think both things you're saying are true. i think the parties to look. there is no doubt they look at it as a bit of a game, a contest about winning and losing. i was talking about jim leach, the former government -- the former republican who is now at the endowment for the humanities. civility is a big issue from

him. he was saying that if we can only rise to the level of sports teams, where they shake hands at the end of the day and respect each other as competitors, instead of name calling on the floor of the house of representatives, which is purely dispiriting -- there is a real competitiveness. on the health-care debate, i think it kind of went down a road. i think the election of '94, the divisiveness in congress had been building. the gingrich congress was like the last nail in the coffin. things became very divisive in the 104th congress. the really dislike each other at that point in time and have not improved since. when the democrats won control back, they were like, "ha ha.

we are going to get our turn and show you." in my opinion, if the democrats had reached out a year ago and allowed the amendments the republicans offered in committee to be added in the floor -- there were stripped out. it is timely technical -- it is kind of technical. it might have worked. but once we got to the summer and the tea parties and the republicans saw the anger out there, they were like, "it is your baby. we are not going to help you. we are going to say no." it spiraled down. >> you have a question. >> i am from code paint. i live in washington, d.c. but i am from los angeles, california.

i have a couple of comments. you were talking about one word that would describe congress. for me, it would be fear. the fear based rhetoric coming out of the republicans and the fearful less of the democrats to respond. another thing -- what do you identify yourself as? i am a progressive democrats. -- a progressive democrat. i believe that what is going on was always going on. many of my family and friends are extremely involved in the republican party and it seems to be a one issue party. at the base, it is always one issue. i will tell you. when the bank bailout was gng when the tarp funds were being distributed the