the framers never asked their fellow americans what they wanted. nd so they never gave them a chance to weigh in on what specific type of republican system they prefer. rather, with matteson steering the proceedings, delegates agreed to keep the discussions private party supposedly so they could speak freely. as a consequence, there is no public record of the proceedings of the constitutional convention thomas jefferson for one was dismayed by this news and he wrote to john adams, i am sorry that the convention began their deliberations by so abominable a precedent as that of tying up the tongues of its members. and jefferson's estimation, nothing can justify this example but the ignorance of the value of public session. nonetheless on september 17, 1787, the new constitution was approved, but only by 39 of the 55 delegates. we can argue whether that was a good thing or bad thing, but the two years -- more than 200 years after the fact, he has some unsettling question. he asked that we americans ever had an opportunity to express are considered well

. >> that, you know, face it, the framers of the constitution thought not everything should get passed but it was senator patrick leahy and the senate judiciary committee had justice stephen breyer up there to talk about the role of the justices under the constitution. gwen: it's unusual for justices to testify. >> the scene of the crime is the senate judiciary committee when they're trying to get through the process and only a handful of times have justices returned to testify on something so we thought it would be a terrific moment. gwen: they were comparing who got the most votes from the senate, and i think it was scalia. gwen: we'll talk about more of this, we'll keep gabbing on the web. you can find our "washington week" webcast extra on line at 11:00 p.m. eastern tonight. also on our website, you go into our vault and view our program from 10 years ago this week when president bush launched the war in afghanistan. keep up with the developments on the pbs news hour and we'll do our best to make sense of it all next week on "washington week." good night. download our weekly podcas

in the framers would've said yes, that's exactly the way we set it up. this of the contradicting power because the name -- the main tale that beset us as hamilton said in the federalist when he talked about a separate setting, he said yes it seems inconvenient, but in his matches main tale that beset us is in excess of legislation that won't be so bad. this is 1787. he didn't doubt in excess of legislation was. so unless americans can appreciate that and learned to love the separation of powers, which means learning to love the gridlock, which the framers believed with beat the main protection of minorities, the main protection. if a bill is about to pass that really comes down hard on some minority, they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system. so americans should appreciate that and they should learn to that the gridlock. it's there for a reason that that the legislation that gave that will be good legislation. and does conclude by a main remarks. >> you may not get total unanimity on this issu

i think the framers were not willing to trust in criminal cases the judges to find the facts. indeed, at the beginning when the constitution was ratified cherry's used to find not only the facts but the wall. this was a way of reducing the power of the judge's to condemn somebody from prison. absolutely is the structural guarantee of the constitution. >> judge. >> yes, i think it is very important. i have never been a district judge. i was an appeals court judge, but my brother is a trial court judge. i was there a while ago in san francisco. he said, what he to see me selected jury. i was on a jury in massachusetts, gun selected, but he said he shouldn't go through your life without seeing that. congratulations. he now know how to select a jury. i saw a morning pass which was just terrific. you take 12 people randomly from that community and two alternates. by the time they're finished their thinking that there is this feature of this individual who is the defendant, in all likelihood in our hands. they take that because of the instructions and a level where the case as a ver

. >> that, you know, face it, the framers of the constitution thought not everything should get passed. so, but it was -- senator patrick leahy and the senate judiciary committee had justice scalia and justice stephen breyer up there to talk about the role of judges under the constitution and it turned out to be a lovefest, frankly. there weren't fireworks. gwen: but it's unusual for justices to testify. >> the scene of the crime is the senate judiciary committee when they're trying to get through the process and only a handful of times have justices returned to testify on something so we thought it would be a terrific moment. gwen: they're comparing who got the most votes out of the senate and i think it was scalia. we'll talk more of this. the conversation has to end here for now but we'll keep gabbing on the web. you can find our "washington week" webcast extra online at 11:00 p.m. eastern tonight and you can go into our vault and view our program from 10 years ago this week when president bush launched the war in afghanistan. find it all at pbs.org. keep up with daily developments

be different than legislative elections -- remember that we have two branches of government that the framers decided would be controlled by a majority vote. that is the executive and legislative. they did a pretty good job of keeping their fingers in the air, right? i think that people have a right to lobby. i think for people do not have the same access as rich people. i think for people have a lot of things that they cannot do because of the resources they have available, but i think lobbying in general, as long as it is not anything that is secretive

be different than legislative elections -- remember that we have two branches of government that the framers decided would be controlled by a majority vote. that is the executive and legislative. they did a pretty good job of keeping their fingers in the air, right? i think that people have a right to lobby. i think for people do not have the same access as rich people. i think for people have a lot of things that they cannot do because of the resources they have available, but i think lobbying in general, as long as it is not anything that is secretive, and that is one of the big problems in lobbying -- the secret of aspects of it -- but as long as they do not violate the law, there is going to be lobbying. i think a bigger problem and one that i'm glad i have a couple of minutes to talk about, is the political action committees coming into states and targeting judges. that is a huge problem. look at what happened in iowa. you had a supreme -- you know about the judges that got removed? we do not know about that? ok, let me talk about that for a second year of two supreme court justices wer

barely get our answer our e-mails answered is not a system that reflects the will of the people alone which is what our framers thought so i think that both sides don't have to give up their differences but they have to acknowledge out of the many come the one you pluribus unum the one idea here that we all should be able to agree upon is this government is corrupt and that corruption has to end how do you see this movement ending and where do you see in the meantime there is no leadership there are no concrete demands you think that we should have another constitutional convention here in the united states do you think of that could come out of this movement out of the occupy wall street movement where they have to be two separate things. well i think one leads to the other i think that if this movement matures and grows in size and begins to articulate its positions in a way that people on the outside of the movement can understand them and resonate with them so you know when you talk about the one percent of the ninety nine percent what is the point is the point that you're upset with the extraordinary corr

the fact that the framers of our constitution were the first in the history to declare that all men areated equal, endowed by their creator with certain inalienable rights, and the province has guided america throughout ourthroughout our hi. from those first colonists to arrive in the new world, to the courage of george washington during the darkest hours in a while before urge. -- in valley forge. to the tyranny of two world wars, and a cold war, time and again. america has been the source of light in a world beset by darkness. like a light house perched on the shore, we have provided safe harbor to the millions who have been adrift in a sea of economic misery. we can still be the country that we aspire to. a source of light and hope to all that live here and come here. anchored by our ideals, we can rebuild on a solid foundation of truth instead of the shifting sands of moral relativism. we can restore hope at home while projecting our values abroad. we can be the freest, most prosperous people to occupy the planet, if we remain one nation, under god. god bless you. thank you for comi

and the intent of the framers? you've been critical of the phrase a living constitution, as recently as i think of yesterday in the senate hearing you expressed the desire to see the notion or the concept of a living constitution died. how do you differentiate between looking to the intent of the framers as to the meaning of the constitution in the present-day? >> well, i don't because i don't look to the intent of the framers. i don't care if they had some secret intent. once again, i look to the words of the constitution. but i asked what do those words mean to the society that adopted them? and so, i will use, i will use the federalist papers, the writings of madison, hamilton and j., but i won't use it because they were the drafters of the constitution. j. was not one of the drafters. those papers to show what those words meant to the society that adopted them. and that the same thing i do with legislation. what do those words mean, what's that their understanding of them. and once i find that, that's my answer.

the framers made a deliberate decision not to make a general wartime or national security exception to our individual rights. moreover, i believe that the fourth amendment, among others, is well designed to protect national security as well as personal security. john used the metaphor of a need until a haystack. what we have been doing since 9/11 is adding more and more hay to the stack, which makes it much harder to find that terrorist needle, and that is the complaint that has been made by fbi agents, as you know, john, among others, have complained about overwhelming mountains of communications that intercepted communications that are coming into them. which they say are deluging, they don't have the able to process all of. the likewise, the data minding program has been kris sized -- criticized by intelligence experts and security experts and saying that this is based on some kind of junk science. the notion that somehow we can find patterns. instead, the fourth amendment, by requiring some individualized suspicions, some judicial second-guessing, is designed not only to protect pe

they're entitled to legislate specific subjects and the framers very carefully listed the subject on which they legislate. it is that necessary and proper clause that impact everything to do whatever they can do but it is what is necessary and proper to the other things that are enumerated. not what they think is necessary and proper period. given the fact that congress has limited legislative power, given the fact the president has the executive power and the supreme court by implication took on to itself powers to decide what it is consistent with the constitution and what is inconsistent with the constitution by way of statute, how did we get to where we are now? part of the way, this was a question framed by general ashcroft. i am not sure why judges went to insert themselves in these issues and this is a trend that started outside the context of war with griswald versus connecticut, a case involving the question whether connecticut can ban contraceptives or not. in point of fact that is a statute that was never enforced. but a mischievous professor decided to take it to court. t

on the one hand jefferson characterized the framers efforts to create the constitution as wise, virtuous and well meaning each. however it was more than a crude and experienced first attempt. that should be revisited and remedied. as jefferson wrote are certainly am not an advocate for frequent and untried changes and laws in the constitution. but i also know that the lobbies and institutions must go hand in hand with the progress of the human mind. and as that becomes more developed, more enlightened as new discoveries are made, new truths disclosed and opinions changed with the changed circumstances, institutions must advance also and keep pace. so my call and his call for the constitutional convention might seem an unlikely prospect. but a critical mass of people is rales and inspired they might come to the conclusion that of our government is failing to achieve the goal for which it was designed. and so high and might be right at last to consider jefferson's proposal to rewrite the constitution. the declaration of independence jefferson was charged to write was the work of a flawed m

eleventh despite the aura effect nature of those attacks the framers made a deliberate decision not to make a general wartime or national security exception to our individual rights. moreover i believe the fourth amendment among others is well designed to protect national security as well as personal security. john used the metaphor of a needle in a haystack. what we have been doing since 9/11 is adding more and more hay far as to the stack which makes it much harder to find that terrorist needle. that is a complaint that has been made by fbi agents. others complained vociferously about overwhelming mountains of communications coming in to them which they say don't have the ability to process through all of them. likewise the data mining program has been criticized by intelligence experts and security experts and this is based on junk science. the notion that somehow we could find patterns. instead the fourth amendment by requiring some individual suspicion, some judicial second-guessing designed to protect personal privacy and also to be sure that our precious resources, limited natio

i think the framers understood that the art of war would be a dynamic art. it had been in history, it would be in the future, and that there would be new technologies that would require the president to deploy the resources of the country in ways that perhaps have never been thought of previously. so leave to the president the capacity to defend the united states, and is do not try to elaborate the specifics of that capacity in a document which would have to serve for quite some time. normally, as a rule of law we tend to honor the specifics of a legal document over the generalities, but i don't think that should be the case in honoring the specifics of the constitution say as it relates to congressional power and to suggest that the executive branch's power in conducting a war would be any less valid because they were not specific. the reason for not being specific in elaborating the defense of the united states as a power of the president was to provide the flexibility so that the president's defense, indeed, would not be hamstrung, but would, indeed, be a

understand and we talked about at the beginning, this idea, this basic idea offing the intent of the framers versus how you divide that and how you have made the cices that you have in terms of experience, in terms of how you interpret what the intent is. >> i guess it's trite but i always admired the phrase judicial restraint. in one case i was so happy with a case called prince against the united states in which the issue was whether the federal government could enlist the help oftate law enforcent personnel to make background checks on gun purchase as part of the, what's called the brady act. during the perfect when the government was formulating its own policy. and could they use the state's chair as an interim. the court celled no the federal government cannot commandeer state ofcers. i dissent in that case. several times i think i was quite right to say there really was no particular history out thersaying whether the federal government could call on state agents for help in particular situations. i think there was history. history that showed they could. but assuming there was none at

>> i don't look to the intent of the framers. i don't care if they had some secret intent. again, i look to the words of the constitution. but ask, why did those words mean to the society that adopted them? so i will use the federalist papers, the writings of madison, but i willnd jay, not use it because they were the drafters of the constitution. those papers to show what those words meant to the society that adopted. that is the same thing i do with legislation. what do those words mean? what is the fair understanding of them? once i find that, that is my answer, and that understanding does not change. for example, whether the death penalty is proscribed by the eighth amendment, which prohibits cruel and unusual punishment. the death penalty may be a very bad idea, but no american ever voted to adopt a constitutional provision that eliminated it, that eliminated that as an option. the living constitutionalists will say times have changed and it is up to meet to decide what is cruel and unusual punishment. that is a constitution and has no bite if the constitution means wha

the framers of our constitution with the first in the history to declare that all men are created equal, endowed by their creator with certain inalienable rights. from those first colonists to arrive in the new world, to the courage of george washington during those darkest hours at valley forge, to the defeat of tyranny during two world wars, time and time again, america has been the source of light in the world that has been beset by darkness. like a light house perched on the shore, we have provided a safe harbor to millions who have been adrift in a sea of economic misery. we can still be the country we aspire to. a source of light and hope to all lived here and those who come here, an anchorage -- anchored by our ideals. we can restore hope at home while protecting our values abroad. we can be the freest, most prosperous people to occupy the planet, if we remain one nation under god. god bless you, and thank you for coming out. [applause] ♪ ♪ [applause] >> thank you for being here. that means that you get it. you know how important this upcoming election is and you will not let the

>> well, the framers of our constitution envisioned a time when congress itself would be the problem.o the ordinary way in which they imagined amendments to our constitution being proposed was that the congress would propose it and the states would ratify it. but if congress is the problem they're not going to propose the amendments to change it. so they gave a way for states to call for a constitutional convention. and all the convention does then is propose amendments, which then have to be ratified in the same way that any other amendment has to be ratified. so 34 states have to call for a convention. congress calls the convention. the convention deliberates. and then the convention proposes -- sends the amendments to congress. congress sends them to the states. and if 38 states ratify those amendments, they become part of the constitution. so that means 13 states, and there are easily 13 red and 13 blue states in our country, could block any amendment. so we don't have to worry about one side or the other running away with the game. but there's a way then to get congress to focus

you're mentioning the framers. the frapers who drafted the fourth amendment which is our right to be free from unreasonable searches and seizures is that the government should not have complete discretion to decide whose homes to search and who to aref. one thing the patriot does, does many things, grab bag of amendments to previous law but one thing most poem are familiar with is the surveillance provisions which makes it easier for the government to find out about us, what the liberians know about what we read, what the internet service providers do and at the same time make it harder for us to fine out what the government is doing because of gag orders, et cetera. >> what is the best argument that you have seen for perpetuating this act without any amendment or renovation? >> the best argument, and it's the argument that really became the winning argument in the fall of 2001, is a concept of a dragnet, really a central metaphor that i use, the idea that if we give the government broad hours it's possible that the

the framers never intended corporations to be intended as people under the constitution.nd for more than two centuries, we never treated them with free speech rights. this idea of corporations having free speech rights is a fairly new one. and this citizens united ruling is the most extreme extension of that corporate rights doctrine. we need to restore democracy to the people, with a 28th amendment that ensures that we, the people, rule, not, we, the corporations. >> as you know, i couldn't agree with you more. jimmy williams couldn't agree with you more. he quit his job and helped us establish the get money out foundation to drive this debate publicly. we're obviously in a period where we're trying to figure out what the best amendment to consolidate around is for everybody involved. i would like to read yours and get your analysis as to what you think about mr. bonifaz's language. he says, section one, we the people who ordain and establish this constitution intend the rights protected by this constitution to be the rights of natural persons. people, person, or persons

but to me what this story is about is the framers were right that if you have any knows about the power executed, exercised by one branch of the government without oversight, that is a recipe for abuse. and that's a lesson i apply to a lot more than just okay, what are they exactly doing about the national security letters right now? so you're asking why doesn't president obama change all of this? it seems to me that once you're president, i think the american people have a very unrealistic expectation that the president promised to keep us safe and keep our safety. the 9/11 commission said no president can promise the american people that. you can do your best. you can prevent some things but you can't guarantee safety. i think the problem is -- >> host: and i think the american people's credit they accept the fact we're in a new normal where absolute safety is no longer a realistic expectation after 9/11. >> guest: that maybe to some extent but i think people have accepted an appreciation in government power. >> host: i will read a passage, beautifully written passage, but also very,

but to me it was a story that the framers were right if you have an enormous amount of power being exercised by one branch of the government without oversight, that is a recipe for abuse. and there is a lesson i apply to a lot more than what are they doing it with the national security letter is right now? you're asking why doesn't president obama change all of this? it seems to me that once you are president, jack goldsmith who has a new book called the terror presidency, and i think the american people of the dreary realistic -- of realistic expectation the president can keep us safe and guarantee our safety. the commission said no president can promise the american people that. you can do your best and hope and prevent some things but you can't guarantee safety and i think the problem is -- >> host: to the american people's credit they have accepted the fact we are in a new normal. we are in absolute safety is no longer a possible realistic expectation after 9/11. >> guest: that may be to some extent but they have accepted the government power -- >> host: i will read a passage and it's a

indication of course we should take those small corrections but to me with the story is about is the framers were right if you have an enormous amount of power being exercised by one branch of the government without oversight that is a recipe for abuse and that is a lesson that i applied to a lot more than just okay what are they exactly doing about the national security letter is right now? secure asking why doesn't president obama change all of this? it seems to me that once your president, jack nicklaus matured and interesting book called the ticker presidency and i keep the american people have a very unrealistic expectation that the president can promise to keep us safe and say process and guarantee safety. the commission said no president can promise the american people that you can do your best, you can prevent banks but you cannot guarantee safety. >> host: to the american people's credit in the normal or absolute safety is no longer realistic expectation after line 11. >> guest: but also people have accepted the government power -- >> host: i read a passage, beautifully written pass

that is the way the framers wanted it. they could have written a constitution that on matters of foreign policy congress could back out, but they did not. there is no more important responsibility than the power to declare war. it is an incredibly important role that is enumerated for the senate to approve, and in terms of relevance, and now you can look through the past few weeks. some who are responsible for the delay might argue that it is important that the treaties are well-crafted. there is no question if you are korean that the delay and the details, and it may simply be a trade agreement, but there is no question it affects foreign policy. dealing with chinese situation, there is no question it is not just relevant but very important to our relations with china, so there is no question congress remains relevant in this debate. i see the attention being that in the abstract most americans agree we would like a consensus-driven, unified foreign policy, because that is easier to represent national interest. there are c

that is the way the framers wanted it. they could have written into the constitution that on matters of foreign policy congress will back out but they didn't. there is no more important responsibilities and the power to declare war. there is an incredibly important role clearly enumerated for the senate to approve and ratify treaties and in terms of relevance we can look at the past few weeks, after a long delay of three relatively important trade agreements, some who were responsible for the delay might argue that it was done in order to insure that the treaties were well crafted in their detail and that additional issues like trade adjustment authority were considered along with the treaties. and there's no question if you are korea, the delay and details in that trade agreement have shape your foreign policy choices and decisions with regard to the united states. it may be simply a trade agreement but there is no question it affect foreign policy. the senate approval of legislation dealing with chinese currency manipulat

that is how the framers wanted it. o the constitution that on matters of foreign policy congress will stay out, but they did not. there is no power more important than the power to declare war. in terms of relevance, we can adjust to the past few weeks -- we can look just to the past few weeks, approval after long delay a relatively important trade agreements. some who were responsible for the delay might argue that it was done in order to ensure that both the treaties were well crafted and that additional issues like trade adjustment authority were considered along with the treaties. there is no question that if you are korea, the delay in the details in a trade agreement have shaped your foreign policy choices and decisions with regards to the united states. it may be simply a trade agreement, but there is no question it affects foreign- policy. the senate's approval of legislation dealing with chinese currency manipulation is another important agreement, whether you agree or disagree with the legislation. there is no

the fact that the framers of our constitution and to declare that all men are equal endowed by their nalienable rights has guided america throughout our history, from the first columnists to arrive in the real world, to the courage of george washington during those darkest hours at valley forge to the defeat of tear tiernary in the cold war, time and time again america has been the source of light in a world that's been beset by darkness. and like in a lighthouse perched on the shore, we have provided the safe harbor to millions who have been adrift in a sea of economic misery? and we can aspire to a source of hope of light for all those that live here and those that come here, anchored by our ideals, we can rebuild on the solid foundation of truth instead of the shifting sands of more relatively and restore hope at home and while projecting our values abroad and we can occupy the planet if we remain one nation under god. god bless you. thank you for coming and allowing me to participate today. >> texas governor rick perry and gop presidential hopefuls speaking at the values voters su

it was a limited power, the framers had enumerated the various powers in the, s -- the constitution and none of them gave the government's absolute power. he played out the basic framework we are wrestling with and we still have this idea that the commerce clause is broad but it is not unlimited. where the limits are is something we continue to struggle with. the other thing i would really emphasize is the legacy of judicial independence. i do think that the court packing idea was probably the single greatest challenge to judicial independence, at least in the 20th century. i think the way he fought that off is something -- i don't think we will ever see another court packing effort. i think that is a great legacy. i would add in her book about the supreme court, he addressed what were the three worst supreme court decisions that the court had made up to that point. one of was a decision called the legal tender -- the legal tender decision. it was for the court first struck down a statue and after changing its membership and it up upholding the statute. he said it was the core's fault f

this is what the framers wanted. the to have simply written that they would put out but they did not. there is no important -- no more and more responsibility than the ability to declare war. and in terms of relevance we can look to the past few weeks of the approval of three relatively important trade agreements. and some who were responsible for the delay may argue that this was done in order to make certain that both the treaties were well crafted and that additional issues like the trade adjustment authority were considered along with the treaty. and there is no question that if you are correa, the delay and the details in that trade agreement has shaped your foreign policy decisions with respect to the united states. it may just be a trade agreement but there is no question affects foreign policy. whether you agree or disagree with the legislation, there is no question that is not just relevant by very important to the town of our relations economic and social and political with china. it is no question that cong