i'm jon scott, i will see you at midnight eastern time with special coverage of the president at the korean demilitarized zone and we will see you tomorrow for another fox report. >> you are professor and director of constitutional law center at stanford law school, hoover institution, you've argued 15 cases in front of a supreme court, that's not -- widely regarded as scholar on

free exercise and establishment clauses, tenth circuit from 2002, 2009, published broadly, bonafide are quite significant. a number of topics that i want to touch on during the course of this hour, we are not going to get everything i'd like to talk about but we would get to some of them, the first one is impeachment, we hear impeachment being discussed left and right in the country, in the media, by politicians, here is the impeachment clause of the constitution and here is what it says, the president, the vice president, all offices in the united states shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors, here it said with popular culture that that pretty much means it's a political

decision, the house of representatives has the votes, that's pretty much good enough, is that how it works? >> i don't think so, mark, so phrase high crime misdemeanor is specifically chosen to be a very high bar and the reason for that is that our framers wanted the check and balances against congress which they thought, you know, perhaps inaccurately was going to be by far the most powerful and most dangerous branch of government and they did not want donning be able to toss the president out on the basis of any low standard at all and they deliberately chose the phrase high crimes and misdemeanors which had a history in the common law because it referred to -- to misdeeds of a public nature of a very serious

abusive power and i just wanted to mention, you read the impeachment clause to us but you didn't mention the fact that when the congress, when the senators are judging an impeachment, they are actually on oath which tells us that this is not just a political boat, that they are engaged in a serious legal matter in which they are actually swearing to do justice at the time and chief justice of the united states to make sure the entire affair is being done as a court of law and not just as a matter of politics. >> so if it is pursued as a matter of low politics, would it be your point then that that's not what the constitution provides? >> that's right. >> that, in fact, it's illegitimate use of the

impeachment power? >> that's right. that isn't to say that it can be overturned because the senate is the sole judge of impeachment, there's no higher court to which it can be appealed but the senators are on oath to comply with the constitution. >> and the words as you point out, they had meaning, common law, they debated it fairly extensively at the constitutional convention and things they dismissed, right, in orderr to make sure that barr ws relatively high. >> so george mason proposed that the president be impeachable madison objected to that that would be at the pleasure of the senate, they could get rid of it

and it's pretty clear that madison believed that he needed to be isolated from impeachment for anything that isn't really truly high crime or misdemeanor. >> related to this, present day we have a slew of subpoenas being issued by slew of eommittees in the house of representatives, one party lost the b house, the opposition pary took the house. the subpoenas cover the presidents taxes, thee president's bank records, the president's communications with his accountant, the president's financial records, members of his family, his businesses, associates and so forth. is this something new? >> to hear much of the discussion you would think the inquiries go back to the beginning but they don't, they

do have the right to ask, request regarding the state of there union which presidents bak to georgeio washington have complied with but only after first decline to go provide information where they thought it would be contrary to public interest to provide it. subpoenas and investigatory powers are not there. that was voted down by the constitution convention and it is true that from very close to the beginning i think 1827 may have been the first year that this happened, congress has

subpoenaed private individuals to come and provide information when it is necessary for the legislative duties of congress fairly narrowly understood. this did not extend to executive branch officials, i believe the first time that congress ever attempted to enforce a subpoena against the executive branch where the president had invoked executive privilege it was under richard nixon and first time an executive branch official was held in contempt of congress in connection with the subpoena, where the president had invoked executive privilege was 1982 and gorsuch, the mother of supreme court justice neil gorsuch, that's only happened a few

times, never been approved by the supreme court, this is really a matter of political dispute between the two branches. >> so half a dozen committees literally hundreds of subpoenas now, allegations that if the president doesn't comply with the subpoenas he's obstructing congress and they're even arguing obstructing justice, the president is taking them to court to litigate this issue, how can it be obstruction if he's litigating the issue on separation of powers grounds and also on whether or not the house of representatives has the original authority to demand these kinds of records from the president or for that matter from any citizen given the point you just raised, that is there needs to be some legislative purpose? >> well, i think we have to understand that words like obstruction are thrown around, they are political rhetoric rather than serious legal arguments and the only way the

house of representatives or its committees can actually enforce subpoenas is by going to court, this is only been done 3 times in american history, it's never gotten passed the district court decision, it's not entirely clear the courts even have jurisdiction but this is what the house will need to do if it wants to enforce the subpoenas but those are civil -- civil cases asking for declaratory judgment orin injunction requirg the executive branch to provide the particular materials and if such case is brought and the court holds, executive branch teds to provide materials i'm pretty confident they'll be provided. >> what kind of precedent does this set for future presidents? >> seems to me that the house democrats are being very

short-sided, do they think that when they do this against president trump the future republican congresses will not do it against future democratic presidents, it's very hard for me to believe that they think that this is the proper way to do business. >> now, in terms of oversight activities which you mentioned subpoenas which we talked about, legislative purpose, what would the legislative purpose be of the president's tax returns? >> i think it differs, 81 subpoenas, some of them are much more closely related to legislative purpose than others, claim of president's personal tax returns and whether internal revenue service is properly auditing the president, not clear to me why that requires looking at tax returns from before he was president, that's

an unusual case so that when a particular subpoena, i think it's the only one that's pursuant to a specific statute that's been passed by congress authorizing a subpoena and that statute does not limit the inquiry to legislative purpose, it seems on its face to allow the chair of the ways and means committee to demand tax return of not just the president but of anyone, mark, if they want to see, ways and means committee want to see tax returns, according to the current chair he can do it, that's what the statute seems -- seems to say, this is, i think, a bit of a civil liberties disaster, it's never done in this way, of course, they are using it just against trump but the statute is not complying with the

president, it's any taxpayer and i think it's succeedingly unlikely that the court is going to order this when the congress has no apparent legislative need for it. >> you don't get the tax returns, they said because the statute doesn't trump the constitution, you don't have a legislative purpose, you're focused on one individual, one president, your point, they are going back to tax returns from before he was president of the united states and they say we have scores and scores of examples of your relate purpose which is to make them public and the department of justice says that is not a legislative purpose, so that's where this litigation was headed right now. don't forget folks to check us out on levin tv most weeknights, levin tv, call t at 844-levintv.

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professor michael mcconnell with the tenth amendment of the constitution. the powers not delegated by the constitution, no nor >> prohibited to reserve to the state's respectively or to the people, is that true? >> it's nominally true. what matters how broadly interpreted is the powers to federal government and when words were written the assumption was that the powers would be interpreted fairly strictly and so the amendment amounts is very little. >> the amendment amounts to very little, that's the result of what? hejudicial decision in. >> it's a result of decisions by the representatives of the people in congress passing expansive laws that have been upheld by the supreme court, .et's not blame the court, these

are laws passed by congress. >> the court in part is to blame, right? the court gets to bill theig lok of bill of rights way of thinkinl government does not benefit from the tenth amendment. there's the legislative branch, the executive branch or the judicial branch, they interpret it in a way that is very destructive of federalism. you have bureaucrats in the bowels of the protection agency that have more powers than states in some cases. is that a post- constitutional type of problem? >> let me just say, people, left and right do not believe in federalism when push comes

to shove. so, certainly the new deal with progressives, they paid no attention to federalism go but frankly conservatives don't care much about it either so take immigration and whether the sanctuary cities question, here you have left liberals who are rediscovering the virtues of federalism but the other side of the coin is conservatives are forgetting them. >> immigration in the constitution is largely a federal activity, right? >> there are federal activities. >> we can have a whole hour of discussion of this. the constitution only gives congress power over naturalization. immigration was actually left to the states for the first hundred years. >> should be left to the states now? >> i think not. it seems to me perfectly reasonable to interpret powers

over commerce and naturalization to include immigration, and i think it is something that logically should be dealt with at a national level, but i don't think that means the national government is the only unit that has any authority to legislate. >> do we have a constitution going? how you interpret the constitution? i know we have precedent, we have, you make the point, you say hey, look, it looks like the ends justify for the political spectrum. federalism gets you where you want to go and you support that. if the national government gets you where you want to go, i would dispute that somewhat, i think at least constitutional originalists are little bit more clear about what they believe regardless of the outcome and i think the left is which is. [inaudible] but, what do we have?

>> let's not exaggerate. we do still have a constitution. the skeleton of this government, the bare-bones of the government are elected congresses, elected presidents, limited powers, division of power between the national government and the states, due process of law, independent courts, we stick remarkably to the constitution. it is true there are a number of provisions in the constitution where i think, and perfect trim perhaps you think the courts have strayed and congress has straight, but that doesn't mean. [inaudible] >> the new deal is simply president roosevelt's description of this program. he was elected president. >> we had a number of supreme court decisions that really had to turn the constitution

on its head. i'm not saying good or bad, whether it social security or a number of other decisions that were made throughout that time, the fact is, it's not in the constitution, but there is an adjustment that's made over the course of time, correct. >> the word commerce is in the constitution and we know what that meant, it didn't mean an explosive bureaucracy, it meant congress. >> this is true, but as we become a more integrative national economy, i think it is only logical that the ability to regulate that national economy has grown in scope, but we could argue about any individual or provision. i do think. those, there was a period of time in our history when the courts paid much less attention to what the constitution said then they should have and we have a lot of precedents that were set in

those periods. i also believe in the last 20 or 30 years, we have begun moving back toward court that is more attentive to the constitution, and i don't just mean the conservative justices, i think even the liberal justices on the supreme court are much more attentive to text in the history and the actual legal justifications for what they do than their predecessors 50 or 60 years ago. >> why do you think that is. >> i think there has been a big debate nationally among lawyers and law schools, to some extent, even out in the political campaigns over the nature of the judiciary, and i think that debate has been one on the merits by those who say that if we are going to be a constitutional republic that means we need to pay attention to the constitution and not just to treat it as whatever the supreme court wants it to mean. >> all right, we'll be right >> all right, we'll be right back. my experience with usaa

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>> president trump arriving in south korea, the president willing to meet north korean leader kim jong un in dmz and shake his hand he would be able to step borderline to north korea, the regime has

not agreed but called idea interesting, i will be here starting at midnight eastern. federal judge in california blocking the administration from using $2.5 billion in military funding to build segments of long-proposed border wall in california, arizona and new mexico, president trump says he plans to repeal, i'm jon scott, now back to life, liberty and levin. mark: professor mcconnell, progressive movement is not all that concerned about the constitution. when you read woodrow wilson or john dewey or all these other fellows at the end of the 1800s, early 1900s and they viewed the courts, in particular, as a

change agent and they would be dismissive of the declaration and the constitution and they wrote about it this constitution comes from wilson talks about, as you know, you can have separations exists in the federalism stuff is quite an interesting but now were an industrial power and a superpower in the different body parts have to work together. it's like a living organism. they don't seem to be all that worked up about the constitution in terms of complying with it. >> the progressives were openly contemptuous of the constitution. woodrow wilson was a critic of the constitution. we do not hear that very much today. modern-day progressives are not the same as woodrow wilson. in some ways better or worse but i think the respect for the constitution as a text that needs to be authoritative is

alive and well among modern progressives and, in some ways, donald trump has made it ever so much more so because when there's a president that they dislike and distrust where do they go? they immediately go to screen to the constitution and i don't mean screen and an insulting way but we all should scurry to the constitution for protection when our government is going awry so i think on the left that there is more interest in the actual content of the text and history of the constitution that there has been at any other time in my professional life. mark: what about the attack on the electoral college? that seems to be rather progressive and i don't think there's a candidate on the left that says but that goes to the heart of our republican system which is the national popular vote which specifically they

rejected a national popular vote. that changed the entire makeup of the government, it doesn't? >> it's an important feature that our constitution would survive a constitutional amendment to move toward a popular vote. what i don't hear the left saying we should ignore the electoral college but what i hear is a interesting work around that they are proposing for a compact among the states where a state constituting a majority of electoral college with promise and advanced to cast their electoral votes in accordance with the winner of the national vote but that is not to ignore the electoral college but that's to work around it. mark: i am not saying their lawless and i don't know how you would ignore the electoral college is a practical method

but could not the argument be made -- let me try this, could the argument be made that they've knocked down most of the obstacles that were problematic? as you said earlier there's no dispute anymore over the new deal and no dispute on immigration and it's a political dispute where the power is but there's no dispute about most of these things anymore so just a matter of exploiting. >> well, we have disputes over different things at different eras and we have plenty of important constitutional disputes. today it is true that when something has been thoroughly hashed out and the american people seem edified by the resolution that tends to be regarded as solid. mark: i think they've done a hell of a good job of turning the constitution inside out and it scares me because i hear the

arguments come out about taxes and arguments now about all kinds of proposals that i'm sure the framers of the constitution would have found absolutely appalling. and yet, i find, very little argument from the public debate, in the media, about is that constitutional or is there an obstacle to that? there are political arguments and economic arguments but i'm not finding constitutional arguments. >> i think this is true. on the other hand i think among our political classes we don't see very serious arguments at all but it all seems to be posturing and i don't mean all but there's much more posturing than there is substance whether constitutional argument or otherwise. one place you have not mentioned and i know from the book you care about where i think there's a very dangerous lack of regard for the constitution is freedom of speech where dangerously

large minorities of young people are now saying they do not believe in freedom of speech for people within with whom they fiercely disagree, various egalitarian ideologies trump freedom of speech especially on campus and i think that is one of the more frightening things going on. today, it's interesting because this is happening at a time when the courts are as protective of freedom of speech as they have ever been and maybe even more than they ever have been in so there's a huge disjunct between the protection for freedom of speech that is to be found in the courts versus the lack of regard for the values of freedom of speech that found on college campuses and a lot of other places in america.

mark: how is freedom of the press doing in your opinion? >> i think it's a legal matter and it's extremely strong. i think the press is an institution is, in very bad shape, i think it has economic problems with the advent of the internet but i also think that the political -- anytime an institution becomes heavily overwhelmingly of one political side or the other it ceases to do his job properly. i'm in academia and certainly universities are this way. they suffer from this but the process as well and when universities and the press is overwhelmingly of one political ideology they forget their job is truth telling and begin to think their job is i don't know, resistance or whatever the catchphrases of the day but we

what we really need is the press that fearlessly goes after the truth whether it's left or right and does not see itself as having a mission of supporting one political side of the argument. mark: we'll be right back. uh-oh, looks like someone's still nervous about buying a new house. is it that obvious? yes it is. you know, maybe you'd worry less if you got geico to help with your homeowners insurance. i didn't know geico could helps with homeowners insurance. yep, they've been doing it for years. what are you doing? big steve? thanks, man. there he is. get to know geico and see how much you could save on homeowners and renters insurance.

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♪ mark: professor mcconnell, first amendment, it says a lot of things about the first amendment but congressional make no law respecting an establishment of religion or prohibiting the free ask exercise thereof or abridging the freedom of speech of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. i want to focus on the establishment of religion which is the sister to free exercise of religion. separation of church and stat

state -- we hear this phrase all the time but is it in the constitution? where does that come from? >> the word separation of church and state are not in the constitution but as a shorthand version of what the establishment clause means and does have a deep history because there were in the 18th century prominent writers who ultimately advocated for a union between church and state is a famous essay by one of the bishops in the church of england by that very title and our framers did not believe in a union between church and state. they wanted them separate and the main thing to understand about the church of england and the established church is that this was the government control over religion and what our founders were most opposed to was having the government to be

able to control religion. this did not mean that the framers believed the american people should be any less religious than they choose to be and did not mean the culture and there was anything wrong with having religious elements in the culture but it meant we were not have a system in which government was able to tell us what to believe or control churches and decide what their doctrines were and who their personal would be and so forth. for example, we had a recent case in the u.s. up in court unanimous decision in a case called [inaudible] in which the civil rights laws of employment dissemination laws were used to tell a religious organization that they cannot fire a particular person who is in a position of the minister and the supreme court, held quite

correctly, that it's an establishment of religion for the government to decide who will be a minister in a church. of course, church here means not just christian churches but means synagogues and mosques and temples in any religious organization the government simply has to keep out of the business of telling them what to believe, who their leadership will be and essentially what they will do. mark: what about school prayer and manger scenes? we see these battles going on -- my father used to say to me we are jewish and we used to go to school and we would pledge allegiance and say christian prayer and do not bother me in the least. the one told me i had to become christian. or i had to change my face. for a long part of our history that was the case so it's unconstitutional or not and when did this happen?

>> i think the school prayer decisions are, in fact, correct. it is true that there was a school prayer in the public schools going way back but not to the founding, by the way, because of the founding we do not have public schools and public schools, as we now know them, are a phenomenon of the 1830s and thereafter. from the beginning prayers and bible readings in the public schools were controversial all along. just as an example in philadelphia in the 1830s the school board decided voluntarily to allow catholic students to read the bible from their own translations rather than the king james cancellation and when that happened the protestants of philadelphia rioted and it was an anti-catholic riot, very ugly thing. it was set off by this problem

the supreme court did not address this issue until the 1960s but i think it is quite reasonable interpretation of the establishment clause to say that the government should not take upon itself the duty of teaching our children what prayers to say and how to say them. from a religious point of view this is quite important because from -- if the government will do this is not going to do a very good job. what is it that the government does a good job of and the prayer that was written against the tally in the case and thus up in court was written by a committee and when i teach this case i like to tell my students that the prayer i read them the prayer and it's like to whom it may concern is completely bland and contentless prayer and for our government to be taking a

serious thing like a prayer and making it into this bland thin thing -- does not do anybody any good. mark: don't forget to join me almost every weeknight on live in tv. sign up at place tv .com -- mark or give us a call at three and one and join our wonderful conservative community. by the way, did i mention? four times "the new york times" number one bestseller. i know it's killing it. get your copy, on freedom of the press. fact is, every insurance company hopes you drive safely. but allstate actually helps you drive safely... with drivewise. it lets you know when you go too fast... ...and brake too hard. with feedback to help you drive safer. giving you the power to actually lower your cost.

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♪ mark: professor mcconnell, what of this religious issue, separation of church and state, and the point about what about that realism and the opportunity for local school districts and states to make their own decision because there is a rubber there? >> mark, this has been a big issue. at the beginning, there is no doubt the first amendment, including freedom of religion, applied as a matter of federal constitutional law only to the united states government. in fact, they voted down madison's proposal to extend our

religious freedom protections against state governments as well, even though he said that was the most important amendment of all the proposals for the bill of rights. they voted it down on federalism grounds and some we've been talking about but in the years before the civil war it turned out that states were using their authority to violate virtually every one of those important principles in the service of slavery so that abolitionists who wanted to make speeches against slavery were denied freedom of speech and newspapers that advocated for abolition could not be circulated and ministers who wanted to deliver sermons contrary to slavery were prevented from taking the pulpit and every single important bill of rights was violated in order

to prop up this, essentially totalitarian system of slavery. when the civil war comes and we have the 14th amendment the 14th amendment does nationalize issues of fundamental human rights that had been left to the states by the initial. mark: and ratified by the state. >> yes, ratified and there are lots of disputes about how this has done an eye, personally think the most persuasive interpretation is that it was the privileges or immunities clause of the 14th amendment that does that and the privilege and immunities clause states, no state shall make or enforce any law which infringes or denies to any person the privileges and immunities of citizens of the united states. now, there's lots of historical dispute but there were plenty of

people at the time, including the senator who introduced the amendment on the floor of the senate who said what are these privileges and immunities because he proceeded to read from the bill of rights. there is solid historical support as well as the logic makes so much sense after the civil war that they were not going to allow the state to be able to do things that had propped up slavery in this way. i think that is what the 14th amendment which ultimately means. mark: we'll be right back. ♪ ♪ (music plays throughout) ♪ ♪ .. "what do we want for dinner?"

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i swibecause they let metual, customize my insurance. and as a fitness junkie, i customize everything, like my bike, and my calves. liberty mutual customizes your car insurance, so you only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪ [ text notification now that you have] new dr. scholl's massaging gel advanced insoles with softer, bouncier gel waves, you'll move over 10% more than before. dr. scholl's. born to move. ♪ mark: what was the [inaudible] decision? >> that was one of the first supreme court decisions to hold that, in this case, the establishment clause applies against the states and every -- everything was about in the particular township there was only two schools and a public

school and catholic school. the legislator and the school board voted to treat all the kids exactly the same way and got free transportation to school and a number of people, including a lot of anti- catholic people, argued that this violated the separation of church and state because catholic schools cannot receive aid of any sort even on a neutral basis. they lost the opponents lost five-four in a very strangely worded opinion but later this principle was adopted with a vengeance holding that -- for example, in the case that i was involved in in the supreme court one of my feet in the report the court held that underprivileged kids economically and educationally deprived kids could not even receive special

tutoring in remedial math and english from public school teachers on the premise of their catholic schools. apparently, out of the worry that somehow these public school teachers would be influenced by, i don't know, crucifixes on the wall or whatever it was that would influence them to infiltrate religion as part of remedial math. i'm happy to say that case was formally overruled about 20 years later and now the supreme court takes the position that as long as the government is providing equal benefits to everyone, publics, private school, jewish school, whatever it happens to be, catholic school, if everyone is tweeted neutrally it does not violate the assessment cause. that seems to me to be a cracked homeschool.

mark: it's been fascinating, professor. i appreciate it. law students at stanford are lucky. don't forget, join us next time on life liberty and limited. [♪] jesse: welcome to. "watters' world." i'm jesse watters. 20 democratic democrats duking it out in miami. msnbc humiliated itself with multiple technical glitches. here is what the president posted. >> we are less than 50 miles from where 17 people were killed in a -- >> we are going to take a quick break and get the technical situation. >> what's