meaning of the word good into a bunch of specific things. you are using that as shorthand for let's go back to statute, and what you mean by do the good is do what congress intended. that is what the good is in terms of the statute. it is also in terms of the constitution, what the basic value is underlying freedom of speech are 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 is not. is there a good reason for doing that? i put in transparency as one, but i certainly did not mean that as the main one. 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

try to interpret them in terms of the purposes and the intent of the congress, we enable congress better to do what it is trying to do. and if people see what it is trying to do and discover it works well or discovered works badly, they know who to hold responsible. the people who voted for this law, and therefore we are acting in harmony with a system that allows people to hold their elected representatives responsible for what happens as a result of their loss. as soon as we abandon purpose, as soon as we no longer make the effort to see what congress wants, as soon as we are they are trying to work with some words, then we can reach all kinds of results.

then the result of something working badly is, he did it. the other person, the courts did. we did not want to vote for that. that was not our object. that awarded us, and now try to hold them responsible. one side of the system is consistent and coherent with democracy. the other kind is not. i am speaking in general, because of course you can find countervailing examples, but in general, i think that is true. i think that is a better reason for filing purposes. >> did you like to say something, jim? >> i don't want to get in the way, this is wonderful. how do you discern the purpose of congress? >> the only way i know is the text of the statute that congress has enacted. to tell you the truth, no law has a single overriding purpose. the limitations that the bill

contains are as much a part of the purpose of the bill as its general objective, to help the poor, to provide health care, whatever. the limitations are as much a part of the purpose. and you cannot tell the limitations except from the text of the statute. and chasing around for purpose is i think a fool's errand. we are not governed by the intentions of our legislators. we are a nation of laws, not of men, the famous phrase from the massachusetts constitution. we are governed by the laws that congress enacted, not by what they intended when they adopted those words. 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 they meant. 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 am sure they are very upset to learn that the freedom of this press depends on this 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's. you cannot take them away. that does not mean that freedom and liberty means freedom of speech and freedom of the press. the first amendment says congress shall make no law abridging freedom of speech. says nothing about california. the reason it applies to california is because it has been applied to the word liberty in the due process clause. >> i don't know how far back you

want to go. let's go back to the articles of confederation. go back to the question, and to answer your question, i have to give an example. the trouble with legal examples is, by the time you get them out, the audience is asleep. but i will try. let me show you. we had a case where we were trying to interpret the word "cost." the word is in the statute. it's is it your job is a handicap and you tell the board of education he needs and better education and the board does not want to do it, and you win your case in court. does the word "cost" encompass exports? no one can win the case without experts, and they do not come

cheap. read the word 50 times. read it all you want. justice scalia is absolutely right, you can think of a purpose either way. the purpose, help the parent. it will be meaningless unless you give him his export costs. the purpose, save money. now is just the other way. so what do we do? lo and behold, in that particular case, when congress passed the statute, as you well know, both houses come to a conference committee and write a report that goes back to the chamber, and the system for the senate adopted a harmonized lot is a vote, do you adopt the conference report, yes or no? in this particular case, there was harmonization. the senate did vote yes,

unanimously. when it set in the conference report, as well as having the language cost, it says this word is intended to cover export fees. ok, i think maybe that gives us a clue, since it was signed by every senator and every represented at that conference and that passed unanimously. so i would say, i first thought this was tough, because you have a purpose. of the time i looked into it and found out what congress had actually done, it was not 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 in tax laws, and the way to

interpret -- it enacts laws, and the way to interpret the law was by looking at other statutes that use the word costs. the reason the majority can now the other way is that almost all of those did not consider cost to include export fees. >> all i am saying is, congress wanted the opposite. >> you do not know that. the only thing you know for sure that congress wanted is what congress said in the legislation, that was passed by both houses, and the congress adopted. congress never adopted the committee report. >> let me give another example, a harder one. there is a statute, as you probably know, that says you can recover if somebody in

government heard you, a tort. you can bring in action against the united states and recover your money. there is an exception, and the exception applies where the harm to you concerned your property. i am not positive i am remembering this correctly, but rep. it says there is an exception where the officers to take their property wrongfully. it says they have to do certain things, but it says it applies to customs, excise, and other law enforcement officers. the question in the case, does that term other law enforcement officers applied to a prison official? where does it apply to law enforcement officers that are light customs and excise officers, which prison officials are not? that is a hard question.

you can argue that up, down, and sideways. i did not know how to answer that, and then i began to look into what was in front of congress when they adopted, and who wrote it? it was an old petraeus writer who was in the department of justice said that time. -- it was an old treatise writer. he said he had copied it from something in england, and someone looked it up and it did mean law enforcement officers connected with customs and excise. i thought i would be more consistent with what congress wanted by limiting law enforcement officers in that way. let me make one last sentence. see what i am trying to do. what i am 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. >> to say that that is what congress intended, you have to believe that a majority in each house knew about this guy and knew that he had gotten it from this english thing and knew that the english king said that. it is 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 the cottage industry of legislative history. it is part of the function of k street firms in washington to write legislative history, which is carried out to the hill, given to our friendly senator or congressman, read on the floor, and goes into the congressional record. or if they are really good, they can get some teenager to put it into the committee report, which is not even read ordinarily by the committee members, much less buy the rest of the house. >> again, i think only a judge could make this kind of argument that has just been made. that is good, because judges basically do their own local and they are on top of the detail. -- do their homework. most organizations are pretty specialized, and they have bits and pieces. the president of general motors

does not know everything that is going on in every department, but he has a system of a large. i worked in the senate for a while. i thought it did not work then, and maybe it does not work as bad as people think. what would happen at the staff level is, staff work for the center, and that is absolutely right. the senator does not read every piece of work that comes through the committee, and nobody thinks they should. what he does is, he relies on staff, just like everyone else in the united states. most people have systems, and this is and there is, that staff person better be alert to what is in the interest of and the desires of the center for whom he works. we never let anything get out of the judiciary committee without showing it to everyone. there were not any teenagers who worked there, but i have nothing

against teenagers. [laughter] just as the presidency is a system and the department of agriculture is a system. one thing is not is it a system where every senator reid's every word of everything -- where every senator reads every word. there is a system. people do not like the system, they can elect people who will change it. the notion that it proves anything to say that the senator has not individually read the report or read the bill or read every word, to say that is a criticism is unrealistic and the 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 wall in accordance with the powers given them by the constitution of the united states, which is the whole point of the constitution. part of it is that this data is highly attuned to the needs, desires, and reactions of the person they work for. i see nothing wrong with that. i do not apologize for it, and i think our judicial system should continue to take that back into account. >> i will tell you what is wrong with it. you compare what happens in the legislature to what happened that the department's in the government. that is 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 clerks write the decision, but the judge has to sign it. it cannot be signed, and nothing the law clerks as are thinks has anything to do with the law. it is the same thing in the legislature. that is why when a senator or 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 go and vote on my behalf. it is forbidden. congress cannot say it is too much trouble to run the district of columbia. from now on, whatever the committee says is ok, they can take care of it. forbidden. the constitution says it must be

legislation by both houses of congress, and the members of congress must vote personally. and it does not matter whether they know what is in the bill. they can be falling down drunk when they vote for the bill, but if they take the active voting for it, that is what makes it a piece of legislation. and to say that all of the back room conferences with staff become part of this 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 step. it is never voted on, even by the committee. >> let's look at a logical leap here. as you yourself said, what the legislative power consists of,

and i certainly agree with you, is the non delegable power to vote. there is nothing in that that says the senator himself or the member of congress has to write the bill, and indeed, they do not. and now our question is not about the non delegable power of voting. our question is, what is the meaning of that which was voted upon? in respect to what is the meaning of that which was voted upon, there is nothing in what you have just said that requires us to believe our eyes to the institutional reality, which is there is a large, complex system for passing laws, of which senators are aware. if we want to understand what this technical meeting 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. that is why, unless you want to have a totally unrealistic process, in which every word in a bill becomes a bible of four thousand different words to foresee every situation, you have to understand what they are driving at. 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 four statements are helpful in that respect. what are they talking about? you will say there are abuses of that. indeed there are. the answer is to learn how to work that as a judge so you do not pay attention to the abuses, so that you understand where all that is at stake is two warring porter'parties.

all i can say is, it requires a lot of experience, and you can do it better or worse, but it is no harder than trying to work with some kind of historical thing that happened in the 15th century that was reported in the 70 sentry, and blackstone says something about it in 18th century, and black -- somebody else says something about it in the 19th century. >> the roman emperor caligula is said to have had the practice of posting his edicts high up on the pillars so that the people could not read it and would be fooled into disobeying it. the government of laws means that the law ought to mean what

it most plausibly would be moot meant to be understood to mean by the people to whom it is promulgated. just as briar has a very exalted notion -- justice briaeyer has a very exalted notion, but that is no way to run a system of free men and women. the statute saishould mean whatt seems to me, and not what the first person to draft it headed mine. what does that have to do with anything? the congress has to vote on a text. that is the only thing they know for sure. a majority of each house and the president, if he signed it, committed themselves to it. and a committee report in one house can use it, even though

there is no report in the other house and even though you have no idea what the president thought he was signing. he does not read the committee reports. i've thought we were just going to talk about the constitution, but we are really into legislative. >> i am not caligula. [laughter] but it is relevant to the constitution. these are questions that come up. it is not something where if you had only read the words, you would know the answer. it is more like the words other law enforcement officers, were you really do not know. on that kind of case, that post, and hiking in up like a flat, has nothing to do with it.

what we are looking for is a way to find out. >> i just do not agree with that. i think very often the words are quite clear and quite simple, how you can find a right to abortion in the due process clause is so far beyond me i cannot express it. even those who agree with the outcome of roe vs. wade have admitted that the legal reasoning behind it was flawed. a lot of decisions, once you say the word liberty, is not accurate. means whatever the supreme court thinks ought to be a liberty. you have given the court an enormous power over democracy, because everything we read into the bill of rights of bridges democracy. it means 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 we should go down if we want our responsible, seriously functioning democracy. only unimportant matters do we try to persuade each other and vote on. really significance of such as whether there should be a right to die, a right to assisted suicide, where there should be right to abortion, whether there should be right to homosexual conduct. all 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 purposes of the word liberty was, or whatever. what is the purpose of the word liberty, stephen? >> what is freedom of speech

about? it is not that tough. we know the heart of it. we understand what the heart of it is, the importance of political speech and so forth, we began better to understand how to apply it at the fringes. to see how it is done, you can look a lot of opinions of the court. then you will see. there we are. what else can i say? the basic value of that confrontation clause -- i am comfortable and you are less comfortable. i am comfortable with saying through an example, this is the heart of the matter. when you get to the heart of the matter, and that is what i am after with the values of the

constitution and what many judges have been after. and what about at the fringes? we will postpone that. i think you are uncomfortable with that uncertainty at the french, and you like better if you could have a clear rule -- uncertainty at the fringe. i would say there is a tradition along that line, and some time that is called for. i think there is a tradition in the judiciary as well, and sometimes that is called for. >> gentleman, we have been over an hour, and we are on my third question. [laughter] i think our audience has been treated to an amazing evening, and i have managed to stay out of the way of it, but we do have refreshments afterward, and

we are most grateful that you have taken the time out of your enormously busy schedules to share your approaches to the constitution. >> i think that have persuaded him, i really do. [laughter] i think i have made some progress. >> it has been a great beer summit, and now we are ready for the beer. >> we have smooth over the differences, and we are now one. [laughter] thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> as i sat there, i could not help thinking, wouldn't you love to be a fly on a wall with a conference on cases? i think jim will verify this, there was a reason that she justice renquist so religiously adhered to time limitations. there is a wonderful story about caligula and his horse, but we do not have time to get into it tonight. [laughter] let me just remind all of you that the next lecture in the 2010 electors series will be on several 20, 2010. a professor of sweet briar college will explore the supreme court and the appointment process. there are still a few tickets left available. you can get them by calling the office. members of the staff, whom some

of you have met before, jennifer low who is responsible for this program this evening, they are all here tonight. they all wear these funny little things around their necks. please do come up and introduce yourself to us so that we can get to know you, and if you have any suggestions for ways we can improve programs -- i don't think you can improve this one, but if you have ways we can better serve the court and better serve you and improve our programs, please come and share them with us. we are going to adjourn to the east and west conference rooms for light refreshments, and we look forward to meeting all of you there. we are adjourned. [applause]