 As those of you who followed the work of the Cato Institute know, we've long argued that courts over the years have so misinterpreted the Constitution that today the document serves primarily to authorize not to limit government. 20 years ago, for example, Randy Barnett and I spoke at a Cato conference on economic liberties in the judiciary, joining others at that conference to lament the demise of economic liberty under doctrines. The New Deal Court had fashioned from a whole cloth. Then in 1989, Cato co-published the first of Randy's two anthologies on the Ninth Amendment, the amendment that speaks to that great body of unenumerated rights the Constitution was meant to protect but hadn't under various erroneous readings of the document. And in the years since, we've continued to urge the courts to restore the parts of the Constitution they've stripped away to make room for the modern welfare state, the very state the Constitution was written to guard against. But it remained to put that all together in one place. We now have that, this magnificent book by Randy Barnett that aims at nothing less, as the title says, than restoring the lost Constitution. Focusing on the Constitution's implicit presumption of liberty, Professor Barnett takes us not only to the document's first principles, but to the first principles of government as such. In the course of doing so, he shows systematically, clause by clause, where the courts have gone wrong, and what they must do to restore constitutional government. It's a tour de force from beginning to end. Rather than my summarizing it any further, however, why don't we turn directly to the author, who'll give us an overview of his book for 20 or 25 minutes, after which we'll hear comments from Professor Walter Dellinger, and then from Judge Davidson Tell. With that, we'll open the forum up to questions from you in the audience, followed by a reception upstairs. Let me note before we begin, however, that the book is available outside at a reduced price, and you can purchase it and have it signed by the author. Randy Barnett is a senior fellow here at the Cato Institute. He is the Austin B. Fletcher Professor at Boston University School of Law. He has taught their cyber law, contracts, constitutional law, criminal law, evidence, agency, and partnership, and jurisprudence. Before entering teaching, he was a criminal prosecutor for the Cook County State's Attorney's Office in Chicago, where he tried many felony cases. He's a graduate of Northwestern University in Harvard Law School. He has visited at Harvard, Northwestern, and elsewhere. He has lectured both in America and abroad, especially in Japan. And he is one of the lead attorneys for the Oakland Cannabis Cooperative cases, now appending in California. And in fact, he recently won a case out there in the Ninth Circuit. His book, The Structure of Liberty, Justice and the Rule of Law, was published by Oxford University in 1998. As I noted, he is the editor of a two-volume anthology on the rights retained by the people on the Ninth Amendment, and a casebook on contracts. He has appeared on many of the media that we're all familiar with, and he is written voluminously in the law journals. And so without further ado, would you please join me in welcoming Professor Randy Barnett. Thank you, Roger, for that wonderful introduction. I want to thank the commentators for having so graciously given of their time to read this book and to come and comment on this book. It's oftentimes difficult to get people to read a whole book before you commentate, to be a commentator. And so I'm very grateful to you for agreeing to do so. One of the side benefits I hadn't really anticipated of doing this book tour that I'm on. I've done 10 schools, and I have 30 schools more to visit on this book tour, is that I'm learning a lot about my thesis that I hadn't realized from the commentators I'm getting. And so I think that's going to be a great benefit. But anyway, I only have 20, 25 minutes, so I'm going to get into my prepared remarks quickly so I can get out of them quickly and hear the comments that are forthcoming. On May 21, 1972, Laszlo Toth, a 33-year-old Australian geologist, slipped into St. Peter's Basilica. Toth dashed past the guards, vaulted a marble balustrade, and attacked Michelangelo's Pieda with a sledgehammer. With 15 blows, he removed the virgin's arm at the elbow, knocked off a chunk of her nose, and chipped one of her eyelids. Now, suppose that instead of the Pieda, a madman had managed to evade security at the National Archives and attacked the original United States Constitution on display there. Using a knife, he's able to cut whole passages out of the Constitution. The nation would certainly be appalled by this heinous act. Yet since the early years of the Republic, the justices of the Supreme Court have accomplished what no madman ever could, redact the Constitution by excising important parts of what it says. Just 30 years after ratification, the Supreme Court weakened both the necessary and proper clauses and the commerce clause. In McCulloch v. Maryland, Chief Justice John Marshall equated the term necessary with mere convenience, thereby converting a matter of constitutional principle into one of legislative policy and effectively removing this textual constraint on legislation from the purview of judicial review. In essence, it became the convenient and proper clause after that. In Gibbons v. Ogden, Marshall began a loosening of the power to regulate commerce among the several states by affirming that the enumeration, although he did affirm in his opinion in Gibbons v. Ogden, that the enumeration presupposes something not enumerated and that something must be the exclusively internal commerce of a state, which was a good statement. In fact, a statement that we're relying upon in our litigation in the medical cannabis cases, which do concern wholly interest transactions. He then proceeded to broaden the commerce clause beyond commerce that exists between state and state to include any internal commerce that, in his words, concerns more states than one. The next passage to be redacted was one that limited state power. In this case, it was the privileges or immunities clause, and it was redacted and eliminated altogether. The privileges or immunities clause says that no states should make or enforce or enforce any law which shall abridge the privileges or immunities of citizens of the United States. In 1873, a mere five years after its ratification, the privileges or immunities clause was functionally ripped from the Constitution by a bare majority of the Supreme Court in the Slaughterhouse cases. In the 1903 case of champion versus aims, the Supreme Court, and this time it was the Supreme Court that's sometimes called the Lochner Supreme Court, broaden the commerce clause by interpreting the power of Congress to regulate or make regular commerce between state and state, also to include a power to prohibit in this case it was to prohibit the sale of lottery tickets of which Congress disapproved. Later, when coupled with Marshall's expansive reading of the commerce power and even a further expansion under the New Deal, this turned out to give Congress the power to prohibit commerce of which it disapproved inside a state so long as that commerce concerned more states than one. In the 1940s, in cases such as Wicked versus Philburn, the court effectively ceded to Congress the power both to regulate and prohibit all interstate commerce that, in its words, substantially affects interstate commerce. And with its broad interpretation of the commerce clause and the necessary improper clause, effectively eliminated from the Constitution was the 10th Amendment that says the power is not delegated to the United States by the Constitution nor prohibited by it to the states or reserved to the states respectively or to the people also excised are two words from the very first sentence of the Constitution which grants Congress all legislative powers herein granted thereby referring to the enumerated power scheme those two words are now gone from the text at least as a functional matter. Also cut from the text in the 1940s was the 9th Amendment that says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others, retained by the people. In the 1947 case of United Public Workers versus Mitchell, Justice Reed confusingly asserts, quote, if granted power is found, necessarily the objection of invasion of those rights reserved by the 9th and 10th Amendments must fail. Now this sentence is confused on at least two grounds. First of all, it refers to rights reserved. The 9th Amendment speaks of rights retained. The 10th Amendment speaks of powers reserved. Secondly, it says rights reserved by the 9th and 10th Amendments whereas the 9th Amendment speaks of rights. The 10th Amendment speaks of powers. Clearly Justice Reed was confused. But nevertheless, the upshot of the holding was that the 9th Amendment was going to be eliminated in the following, for the following reason. So long as the court could find under its boundless interpretation of the commerce clause and the necessary and proper clause a proper power that the Congress was exercising then the 9th Amendment could not be violated which means it could not possibly ever be violated which means it would now was gone from the text. So over the past 200 years then the Supreme Court has done what no madmen like Laszlo Toth ever could do. Take a razor to the text of the Constitution. With these clauses removed, the Constitution enforced by the court is substantially different than the one you still can view in the National Archives. At its hands, what was once a system of islands of powers in a sea of individual liberty rights at both the state and federal level has become a system of islands of rights in a sea of federal and state power. And most modern constitutional scholarship consists of the effort to justify what the court has done. Now for any of you who think this imagery of Laszlo Toth is perhaps a little violent or a little provocative and perhaps it is, I ask you to consider the following. Imagine that this crazy person who gets into the National Archives is able to raise her out just the right parts of the Constitution, just the parts that get in the way of government doing good and government doing what people wanted to do. Well, why wouldn't all constitutional law professors applaud this wonderful improvement that's been made in the Constitution? And yet, in reality, I doubt they would. And I'm certain they would be as appalled by this heinous act as most of the public would be if they knew that the Supreme Court has effectively done the same thing by eliminating whole passages of the Constitution and only selectively enforcing the document. Now, as the Supreme Court gutted the textual limits on the federal government provided by the Commerce Clause, the Necessary and Proper Clause, and the Ninth Amendment, and on the states by the Privileges or Immunities Clause of the 14th Amendment, it adopted in their place a doctrine it called the presumption of constitutionality. Now, initially, this presumption was said to be rebuttable like presumptions are supposed to be, but at least since the 1956 case of Williamson-Veely Optical, unless a liberty is deemed by the court to be fundamental, and I'm gonna get more to that in a moment, this so-called presumption is irrebuttable, and an irrebuttable presumption is not a presumption, it is a rule of law. But since the 1956 case of Williamson-Veely Optical, in that case, Justice William O. Douglas essentially reasoned that the only justification a statute had to have in order to be justified was not a particular reason why the legislature did enact it that was good enough, but only that the court could imagine a possible reason why it might have enacted it that was reasonable, in which case, and in that opinion, there's a long paragraph about it might have done it for this reason, it might have done it for that reason, and with that degree of judicial discretion, I mean, judicial deference to legislative discretion, what would be left of judicial review? Nothing would be left of judicial review, but of course, as you know, we do have judicial review, so what is the basis of judicial review in light of this deference that's been given to Congress in the States? Well, the basis is taken from, or at least initially taken from, a single footnote of a single case that was decided in 1938, a footnote so famous that if you identify it by number to any constitutional law professor, they'll recognize what it is. In fact, if you mention it to any law professor, they don't even have to teach constitutional law, they'll know which footnote I'm talking about, and this is, of course, the famous footnote four of Caroline Product. Just say footnote four, there's actually an entry in encyclopedia called footnote four, that's how famous it is. Now, why is it so famous? It's famous because it defines the modern approach to constitutional rights, it begins as follows. There may be narrow or scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the First Ten Amendments which are deemed equally specific when held to be embraced within the 14th. Let me just reread the middle passage of that sentence that when legislation appears on its face to be within a specific prohibition of the Constitution, then the presumption of constitutionality can be rebutted and now the government must justify what it's doing. And this turns out to represent the entire, with some modification I'm about to discuss, the entire modern theory of constitutional rights. Presume all laws to be valid, except when an enumerated right listed in the Bill of Rights is infringed, in which case the court will then put the burden on the legislature or the executive to show that their actions are both necessary and proper. Gone now is the enumerated power scheme and its place is a sole reliance on some of the rights that are enumerated in the Bill of Rights. And I say only some because as some of you may realize, the Second Amendment's prohibition on laws that infringe the right to keep and bear arms has never been deemed by the court to be a fundamental right, even though it's one of those expressed prohibitions that happens to be in the Bill of Rights. Now for 20 years, the Supreme Court remained within this Footnote 4 framework. Then in the 1965 case of Griswold v. Connecticut, it struck down a ban on the use and sale of contraceptives because it said the law violated a right of privacy. Trying desperately to remain within the confines of Footnote 4 and his opinion in Williamson-Villie optical, Justice Douglas attempted now infamously to ground this right in the following way. He grounded this right in quote, specific guarantees in the Bill of Rights which have penumbras formed by emanations from those guarantees that help give them life and substance. Now this penumbra's and emanations language is kind of a laugh line in certain circles and perhaps for good reason, but I think that the history that I've just related explains why Justice Douglas resorted to penumbra's and emanations. He was trying to stay within the Footnote 4 theory that limited judicial review to those specifically enumerated rights and when he was enforcing this one that wasn't there. And so he used emanations and penumbras to connect the right he was enforcing to a specific prohibition in the Constitution. But emanations and penumbras could not conceal the fact that the court had now escaped the bounds of Footnote 4, the bounds that the straight jacket provided by Footnote 4 and after that all hell broke loose. The court came under withering fire from former New Deal or constitutional scholars who however much they might have agreed with the outcome could see no natural stopping point short of a return to the pre-New Deal scrutiny of state and federal legislations. In response to this onslaught, the court adopted a doctrine which has turned out to be very problematic. It limited its protection of unenumerated rights, the ones that are going to go beyond the specific prohibitions to those that in its opinion were deeply rooted in the nation's tradition and history or implicit in the concept of ordered liberty. Now, now courts were going to be in the business of picking those rights which are fundamental from those rights which were not fundamental, those liberties which are important from those liberties which are to be sacrificed to the will of the majority. That's an uncomfortable position for the court to be in but there's another hidden problem of this approach to fundamental rights that isn't often recognized and that is the outcome of the protections it affords depends entirely on how the right is going to be defined. So if for example you define a right narrowly or such as a constitutional right of homosexuals to engage in acts of sodomy or a constitutional right to use medical cannabis obviously that right can be disparaged if not denied altogether by saying what the hell just where in the constitution does it say that? But if on the other hand you broaden the right out to defend it as our general right to liberty obviously a general right to liberty is deeply rooted in our nation's tradition and history and in the case of medical cannabis a broader version of that right is simply the right to be free of unnecessary pain and suffering and the right to preserve one's life that seems clearly rooted in our nation's tradition and history as well as implicit in the concept of ordered liberty and yet this all depends on how you choose to define the right and here's the secret problem there is no right way to define the right there's no correct way both are right one is simply a general version the others are more specific version except doing it one way leads to one outcome doing it another way leads to another outcome and any doctrine that is so easily manipulable so would lead to whatever outcome you want is not genuinely a doctrine at all and it's something that's going to lead to fewer judicial choice as to which rights it's going to protect and which rights it's not in my book Restoring the Lost Constitution I propose we chuck that system and in its place and in the place of the presumption of constitutionality we adopt a presumption of liberty which would essentially protect liberty across the board now I don't have that much more time and I really don't want to eat into the time of my commentators but let me just briefly summarize before closing what I believe how this approach would work just so that you have some taste of it with a presumption of liberty the government would have the burden of showing that its laws were both necessary and proper at the federal level it would have to show that a law was truly necessary to accomplish one of its enumerated powers properly interpreted at the state level a law would have to be shown to be truly necessary to the exercise of a proper conception of the police power of states and I devote a whole chapter of the book to what is the proper conception of the police power of states to oversimplify a bit Congress with respect to interstate commerce and the states with respect to all other liberties we could regulate rightful and prohibit wrongful acts and to illustrate what I mean by that consider the right of free speech in the right of free speech we have rightful exercises of free speech that can still be regulated according to time place and manner restrictions in order to protect the rights of other people but those time place and manner restrictions or regulations must be thought to be must be concluded to be scrutinized to see that they're reasonable and necessary and not some pretext for actually prohibiting speech on the other hand in contrast we can prohibit wrongful exercises of speech such as speech that constitutes defamation or speech that constitutes fraud those sorts of speech are not can not merely be regulated they can also be prohibited what the presumption of liberty would do is extend the same protective presumption that is now afforded speech press and assembly simply to all liberty rightly defined in which case this would not be an express prohibition on regulation it would simply put the burden on the government to explain why it is such regulations are in fact necessary and proper why it is what is their justification for regulation something that under current fundamental rights jurisprudence the government simply does not have to do it never has to justify what it's doing unless you can first establish that the liberty is a fundamental one and which means it really has a carte blanche let me close now by emphasizing the following point to justify its presumption of constitutionality the supreme court had to eliminate passages of the constitution that inconveniently stood in its way which is a good reason I submit for rejecting this doctrine as unconstitutional a presumption of liberty would restore this doc would restore this lost constitution by holding congress to its enumerated powers and states to their proper police power while protecting the privileges or immunities of citizens and the rights retained by the people for despite the best efforts of the supreme court over the past two centuries all these portions of the lost constitution are still to be found in the duly enacted constitution of the United States but you don't have to take my word for it you can look it up thanks well thank you very much Randy um... there was a very concise overview and uh... get to the heart of the matter now let's see what uh... Walter Dellinger and David Centella are going to say about it uh... I'll introduce them separately just before they speak Walter uh... Dellinger is um... professor of law at duke university he's the douglas b mags professor of law he's also the head of the appellate practice uh... division at uh... the washington dc law firm of melvinian mires uh... in uh... nineteen ninety seven he uh... served as acting solicitor general under the late unlimited uh... clinton administration and uh... in that capacity he argued uh... nine cases before the supreme court uh... before that he was uh... advisor to the president and uh... head of the office of legal counsel in the department of justice uh... he is a graduate of the university of uh... north carolina and the uh... yell university uh... law school he uh... has published voluminously and uh... the harvard law review yell law journal duke law journal and elsewhere he's a he's appeared in all the uh... usual uh... tv programs uh... and uh... he is uh... one of the major legal figures here in washington today would you please welcome walter delinger i love this wonderful book this is a great book and you should be very very very proud of it and it's powerfully argued as a coherent thesis it's full of nuance and detail it both looks at the sweep of history it does it in light of an understanding of the basic postulates of the constitution it deals uh... with cases and ways that uh... are enriching i learned from every chapter uh... of this book and there is much of it with which i agree uh... in my ten minutes i think i'll emphasize that with which i don't agree let me just start by by saying that the things i wish randy and i are are are in agreement in which i'm so so pleased to find so powerfully argued in finding fresh support from positions i'd stumbled into the proposition for example that there are rights that pre-existed the constitution of the united states and that the framers at philadelphia during the debates understood that they were operating as the background of rights that already existed they weren't merely creating rights on a blank slate there's one wonderful moment for example when in debating the issue of whether there should be lower federal courts madison refers to the uh... double jeopardy principle that would prevent the government from appealing from an acquittal and i asked my students as we read the debates in the constitution convention what double jeopardy clause this is seventeen eighty seven there's no bill of rights not even gonna have one but there's an assumption that of course judges would enforce the right against being twice put in jeopardy you didn't have to write that down we agree that i think randy was as i uh... develops a salmon lecture that i delivered here for kato into a written document i will welcome your comments on a draft the thesis of that lecture was one that is finds more support in your book than i knew that there was a thesis was that the disparagement by some liberal scholars and jurist of the constitutional protection of rights of contract and property has actually weakened the protection of other personal liberties and similarly the disparagement by some conservative scholars of unenumerated personal liberties has in fact weakened the protection of rights of of property and that when you go back to madison you can see how fully both are included in the tenth federal as he moves from rights against paper money and and the seizure of property to protection of religious minorities against against other sex he speaks about the use of color as the basis of the most oppressive dominion ever known all is of a piece to madison's uh... generation and to and and to libertarians uh... i think uh... randy's book does the best job yet i think of uh... showing how wrong the slaughterhouse case was that that stripped the fourteenth amendment of much of its power uh... when the court held that uh... a monopoly that served no purpose except to exclude persons from lawful occupations did not violate the fourteenth amendment was not within the range of the uh... of the privilege of immunity is protected and randy and i both agree that that was wrongly decided he argues that more powerfully and does see the fourteenth amendment as as having made an important change in our constitution i very much like the passage of page two of three for example uh... where randy says the fourteenth amendment was born of a new found distrust of state governments and he knows that before and after the civil war the civil liberties it wasn't just about racial discrimination in the sequelae of slavery before and after the civil war the civil liberties of white unionists in the south and abolitionist in the north who happened to stray into the south including their liberties to speech assembly and the right to bear arms were severely restricted by the southern governments much to the dismay of northern republicans and creating an enormous distrust of those state governments in the aftermath of the of the civil war there was also the very strong republican notion of free labor which is also a piece of this notion that rights are indivisible the notion of free labor which you still see reflected in the party of lincoln at its best uh... even those occupational liberties far removed from slavery in its vestiges were part of the lincoln case against slavery the freedom to pursue one's occupation uh... to enjoy the fruits of one's own labors was so much at the heart of uh... of the case that that the lincoln made against depriving others of the freedom of their labor that that rights of occupational freedom are fully included within the uh... fourteenth amendment uh... with all of that uh... we agree he has a very good explanation of the way in which the american culture became more at ease with governmental power particularly the power of the national government which we're getting close to the place where we parked company uh... he has a very good explanation the american civil war randy writes enhance the moral authority of the central government and undermine the moral appeal of true federalism and it really was a transformative event that civil war was not simply the largest project in terms of men material and money the federal government had ever undertaken was greater in size and scope than every project of the national government from the time of the convention of the time the civil war combined it truly transformed this into a uh... national government may or may not have been there on paper in eighteen fifty the united states department of justice consisted of a part-time attorney general two clerks and a messenger after the civil war you have built the magnificent executive office building to house the departments of state navy and war that enormous building was inconceivable for the civil war that you would need such an enormous building to house the federal government when the justice department existed in a rooming house and i'm not i'm not speaking metaphorically there and literally the attorney general moved into a rooming house that had two clerks so the fourteenth amendment was almost not thinkable before the civil war they would have been such a ridiculous assertion in eighteen thirty that the federal government was going to hold itself out as protecting the rights of the citizen of georgia against his or her own state government with what resources after the civil war you transform the authority i think uh... randy has more concern about that than i did i guess my libertarian streak has never extended to the notion of distinguishing very much between governments national and state and i actually think in the national government in the extended federal republic there is much protection for liberties i would uh... join randy in invalidating federal legislation as well as state legislation that for example set up uh... licensure provisions uh... otherwise uh... otherwise interfered with with free markets i think uh... linkin federal uh... when justice black abandons any judicial scrutiny of economic legislation is wrong i'm more comfortable with national power i think the i think uh... randy does not persuade me if you read his chapters on the necessary improper clause my only any doubt would be set aside a little time to read what i think is the greatest of judicial opinions justice marshall's opinion and mcculloch against maryland i think marshall comes off somewhat better but you know that's that's pretty good praise you know he's uh... he was a heavy hitter uh... let me close how am i let's see where we're doing on time let me let me close with one point of disagreement uh... uh... you're you're wonderfully in your skewering of shecter poultry that that there are parts of the national new deal enterprise i i'd join you in uh... uh... uh... in in criticizing here's the troublesome point i think for all of us uh... the the subtitle of restoring the lost constitution is the presumption of liberty and we think of it as a presumption of liberty that government ought to have to justify its restrictions rather than having the person who's liberty is burdened uh... carry the day of showing why the government of restriction is is is inappropriate uh... is very powerful but it is it's it's critics will will see this as a mandate for greater judicial activism than some of us would find tolerable uh... i think randy's response would appropriately be it's just as much judicial activism to fail to invalidate a law that should be invalidated as it is to strike one down that shouldn't be nonetheless to the degree that as a practical matter at the end of the day courts produce results that are different from those reached by the elected political branches of the government i do think there is a continuing concern about that and i'll pick out one case which um... which comes in for praise at page two twenty of randy's book railroad retirement board versus alton railroad it's a fairly obscure case but i think a pretty good example of how i think the new deal court was too aggressive in scaling back on the authority of the national government and too willing to substitute its own judgment for legislative judgment it'll give you a good example of where we may divide at this point at issue in the railroad retirement board case was the railroad retirement act an act of congress in nineteen thirty five before social security was even constitutionally possible to provide for pensions for railroad employees enacted under the commerce clause mandatory time at sixty five extended to eight seventy year by year with a compulsory retirement plan funded uh... one third by employees and two thirds by the uh... railroads everybody would agree that acts of congress that increase the efficiency well i should say that everybody agrees but i would assume an act of congress that increases the efficiency of railroad transportation is within the power to regulate interstate commerce by making sure that it flows freely this is not guns near schools this is real so the issue is whether this act in fact is one that promotes the efficiency of railroads to the court's majority struck it down they saw the real purpose of the statute was not the regulation of commerce but the enhancement of social welfare of workers beyond the terms voluntarily agreed to with him with their employment and they looked at the rationale put forth by congress congress had a year of hearings and it really built a record and the record was both from what was done in europe and what was done voluntarily in business business people came and testified that when they adopted a retirement plan for superannuated employees with a pension that the increasing longevity of employment the movement away of of older and of older workers and the increased loyalty and morale and security increased efficiency that's the theory of why it's an appropriate exercise of commerce and there is a senate just leaps out in the opinion where the court says we've looked at all of that the congress looked at and i can quote four words exactly we do not agree that a pension plan if compelled by congress would actually promote loyalty and efficiency in economy we don't agree i think at the end of the day that is to intrusive into the democratic process so that i would be less willing to go that last step and that's the concern about how far one carries the presumption of liberty but i must say that those are remarks that are uh... but uh... a small criticism of what is a powerfully argued and in large measure convincing work thank you well thank you very much walter i couldn't help but wondering why if the pension plan did indeed crease efficiency the uh... railroads didn't lead to it uh... anyway let's turn out to our final speaker and uh... we've turned to uh... north carolina for both of our speakers today uh... judge david sentel uh... was appointed to the uh... united states uh... court of appeals in uh... for the dc circuit in october of nineteen eighty seven he too is a graduate of youth uh... university of north carolina both the college and the law school there uh... he has had an interesting and varied legal career uh... following law school he practiced uh... in private practice uh... in north carolina many became the assistant u s attorney in charlotte north carolina uh... from there he um... uh... served as uh... in newt north carolina state judge uh... after that he went back into private practice and finally uh... became a federal district judge in north carolina and then a uh... judge on the court of appeals for the dc circuit uh... judge sentel uh... appears frequently uh... at uh... events uh... here in washington and around the country especially for the federalist society uh... he uh... is also an author himself most recently of a wonderful little volume uh... published by the green bag press those of you who are lawyers will be familiar with that press uh... entitled judge dave and the rainbow people i will let that uh... let that uh... title just uh... hang there for your uh... for your uh... notice uh... would you please welcome uh... judge david sentel raise this up just a little over an hour in fact that u n c together we did not know each other which probably means walter didn't hang out in bars very much i will take the opposite tack from water and begin with where i disagree with our speaker our author excuse me and at the same time i will disagree with one of the blurbs on the back of the book and with the advertising circular put out by kato my old friend sandy sanford levenson states that the book should attract general readers as well kato says that he referring to professor barnett provides a new more realistic theory of constitutional legitimacy a question whether there can be a theory of constitutional legitimacy after over two hundred years of constitutional history and acceptance of legitimacy that can be in any sense realistic the fact that the professor barnett spends over forty pages belaboring the new theory convinces me he won't get very many general readers unless they are advised to skip that portion and jump directly to the meat uh... i had supposed and still suppose that the legitimacy of the constitution relies upon and rests upon the consent of the governed professor barnett says that can't be so because the consent is not unanimous neither on or anyone else had ever supposed that it was but most of us suppose that man in a state of nature joins in government for the protection of the rights life liberty of all and where a system of government for the protection of those assets is devised by a representative body in the most representative republican form available and then the most in the history of the world and where it contains the seeds of its own amendment the lack of unanimity simply bespeaks the fact that unanimity in such an endeavor is impossible professor barnett says it is possible look at leisure world i looked at leisure world and couldn't find any parallel to a system of government so i would repair the proposition that without government life would be nicely brutish in short as opposed to those of us who are nicely brutish and tall and that when we are told instead the constitution's legitimacy rests on a theory that a legitimate lawmaking process is one that provides adequate assurances this is in page forty five that the laws that validates are just in this respect that respect being for a law is just and this is page forty four and therefore binding in conscience if its restrictions are necessary protect the rights of others and proper insofar as they do not violate the pre-existing rights with the persons on whom they are imposed i don't think many general readers who have grown up steeped in the proposition that government rests upon the legitimacy of the constitution rests upon some form of consent of the governed are going to be very patient with a forty five page discourse that ends with a subjective new standard and i think they're going to be troubled by the proposition that this constitution was questionable in its legitimacy for over two hundred years and only became legitimate when a professor from massachusetts provided us with a subjective standard by which he found it legitimate that said i strongly advise you to read the book i just advise you to skip the first forty five or so pages and go directly to the parts that i agree with when we get to the part about how to interpret the constitution i've never seen a better exposition of what methodology is and that is an originalism that differs from some of the originalism you hear described and differs from it in a way that is i think entirely correct and is well defended by professor barnett both in logic and in history and that is that we should be seeking not the original intent of the framers which is an unfortunate phrase that is used sometimes accidentally and sometimes intentionally originalists of one sort and another we should instead be looking for the original meaning of the constitution the very essence of writtenness is an important theme of that portion of professor barnett's text and you're losing the value of writtenness if you began to try to determine well what did hamilton and medicine and the others intend to frame which was not at all the same thing as each other in many instances the question is not what did they mean to frame but what did they frame what they did frame is put down in the constitution and i think the first barnett's thesis that that is the originalism to which we should look is irrefutable i cannot say that the idea is novel and that to me is not a criticism that's an encomium to him that it isn't a novel idea it is in fact the original idea to which he is calling for a return we entered this written compact so that persons now they would say in persons in generations to come can determine precisely what are the limitations of government and i think that again is the right question and when we go far beyond the text of the constitution and the contemporary sources both within and without constitutional history that will tell us what the words meant we run the risk of trying to frame the constitution that we think they would like to have had rather than the one that they in fact were able to get the representatives of the people to agree upon and found a legitimate government that protected the pre-existing liberties that said then we come to the part of the book that i partly agree with we've been through the part i disagree with that is to say the one that says the constitution is questionable and illegitimacy until i find it legitimate i would say that again for the general reader this reminded me of the thought of someone coming forth with a new and exciting translation of the odyssey and spending the first fifty pages writing on why the professor is able to prove that the odyssey was not written by the blind Greek named Homer that most scholars have previously thought was in fact written by another blind Greek named Homer i don't think many of us would labor with that very long we would be interested in what the text has to say about the substance and here again what the text has to say about this substance is most compelling and in so far as the methodology it's irrefutable now when we come to the application of that methodology to the subjects of the ninth amendment the necessary and proper clause privileges and immunities and privileges or immunities whether we're speaking of the federal or the limitations on the states i'm not sure that i agree or disagree with everything that the professor concludes but i would say that his examination is quite thorough and quite convincing and i approach it only with the skepticism inherent in the article three position that i occupy and that is i'm not going to decide its specific application till i hear the other side argue as well but there are points in it that i have heard argued and am thoroughly convinced about one of them is one to which in your limited time you alluded today but in your book you explore it much greater length and that is the enumerated powers more specifically the commerce clause i believe that with proper attention to the limitations that are well explored in the text we will have fairly little reason to have to enter that realm of what rights dudes courts believe are protected by the ninth amendment and what privileges and immunities are those that must be afforded to the citizens that is to say and the book says it well if the acts of the federal government are limited to those areas that are enumerated and if the courts listen to that limitation on enumeration then we may never reach the point of asking is the right which this citizen is asserting one that is in fact protected either explicitly or implicitly by the ninth amendment or by some emanation or penumbra and frankly that bothers me a great deal the emanations and penumbra's i did go down and look at the original constitution and i couldn't find it anywhere unless it's that green haze that hangs over it and said case i'm a little more optimistic about the possibility of convincing courts of the efficacy of a return to the doctrine of enumerated powers than i am of the possibility of getting very far with a proposition that asked the courts to begin to outline what rights it is that are not to be disparaged or denied because of the ninth amendment and that really is all and that the men that speaks in terms of powers granted and not rights but that's really all it says the enumeration of the constitution of certain rights she'll not be construed she speaks of rights and not powers to deny or disparage others retained by the people i don't know and i'm not likely to find out what all those rights are in fact as barnett carefully out lays forth you're not supposed to know there's a lot of history that says that the people at the constitution convention say we don't know what all the rights are and people in the ratification conventions and the people in the early congress we don't know what all the rights are we just want to we will not lay out or try to lay out what they all are some of them are trivial but we will limit the power of the federal government and i think the tenth amendment and the ninth amendment as you defend were well designed to draw that line around the night that round the powers of government in such a fashion that it should be a seldom thing that we actually have to come down to saying is this right one that the framers intended to protect under the ninth amendment or is this power one intended to be denied under the tenth amendment because they told us rather plainly what rights they were handing out perhaps the best example and one very dear to my heart is the one to which you alluded and which you argue more thoroughly in the greater time available to you in the book and that is the interstate commerce clause as you noted today the supreme court has lost all sense of that interstate having any real meaning or content and stretched it beyond all recognition as you further lay out in the text the word commerce itself is one that has great limiting force and one that has been ignored in my view even more than the interstate character perhaps because i lost the fight over this very what the supreme court has done to these clothes is sometimes is not nearly as baffling as what the lower courts have done i don't know if any of you're familiar with the case of national association of home builders involving the california highway building project that was stopped because of the habitat of an endangered fly now while i could not find anything interstate in the character of an inveterate stay-at-home like the deli stands flower-loving fly neither could i find any commerce in its living or dying two of my colleagues in separate opinions the gist of which escaped me did i wrote the dissent which tells you what the law isn't but the supreme court failed worse than i did they didn't grant sir when we come to the specifics of application i think in this not fair to criticize somebody for not having written everything in a book i'd like in there but i would like to have had more thought on whether there is any real possibility of in fact doing what you're suggesting here and that is restoring the lost constitution it's not going to be restored on the ground as opposed to in theory unless some method is found of selling the courts upon it i think the possibility of selling the court is better in the area of the enumerated powers than it is in resort to the ninth amendment i'm not suggesting that i share bob borke's view that this is like an inkblot on the page and you can't tell what it means we're supposed to interpret or construe the entire constitution that's part of it and we're obligated if necessary when we have a case in controversy to find some meaning but if we look to the limits of federal power and those are rather plainly laid out then maybe we never get to the question of what those rights are in any sense in your own term by professor barnett's own terms to decide what that not the minimum means is more construction than interpretation courts are dangerous when they start doing a lot of construction if you think not then look at the history of what professor barnett in the book in here today is laid out so again to summarize with reference to the supposed new justification for legitimacy of the constitution i'd skip that part with respect to the method of interpreting and reading the constitution that is the true originalism of original meaning i think the text is irrefutable and while i have read as professor delinger suggested many of the things that professor barnett had to say in other places i've never seen them put together in a compact concise reasoned argument in one place as well as they're put forth here when you come down to the specifics of how that interpretation applies to specific parts of the constitution the book is fascinating and i expected to be the subject of a lot of controversy and writing and discussion by others reserve judgment on those specifics until they come to me in an article three case or controversy well i have to say as an author i'm i'm quite thrilled uh... by these comments i'm certainly far more thrilled by the areas of agreement that we have uh... this then i am dismayed by the areas of disagreement that we have and uh... not exactly the reaction i i i mix i was expecting uh... and i'm very very pleased i'm going to uh... in some sense in in gratitude limit my responses uh... just to a couple of points uh... the the in fact the two main areas of disagreement uh... let me just one emphasize one uh... very important uh... agreement i have with judge sentel and he knows this because it's in the book and that is i really do think that if the enumerated power scheme was properly interpreted there would be many many fewer opportunities or need to resort to any sort of protection of rights enumerated or unenumerated which is the reason why it wasn't until as late as nineteen sixty five that the first active congress was struck down uh... because it violated the first amendment freedom of speech uh... that's very late in our history there's a reason why it took so long for these rights disrace jurisprudence to develop because it took a while for the enumerated power scheme to unwine and once it did all we had left to protect liberty with these rights and a lot of far too much premium is placed on that by the uh... by the erosion of the enumerated power scheme of Lopez verses united states is a perfect example of that because it was found the gunfree school zone act was found to be outside the congress commerce power of congress you never had to reach the issue of whether the second amendment might have prohibited that that just gives you an idea of the extent to which i think that judge sentel is right about this uh... and i think we all must keep that in mind uh... let me just i just want to talk about two points i want to talk about the first forty five pages uh... legitimacy and i want to talk about the issue of judicial activism now close on that as for the first forty five pages i have a confession to make as an author uh... and i i i i hate to do this in such a large audience but the confession i make as an author is i wish i didn't have to write that first forty five pages and put it first because i i do think that it could be a screen uh... that would prevent people from moving beyond the first forty five pages but i've quite frankly uh... after considering long and hard if it was possible to avoid doing so i can't i decided i concluded reluctantly that it wasn't the reason being that i do find the prevailing consent of the governed theory of constitutional legitimacy to be wholly inadequate and not only is it inadequate it actually ends up being a weapon against the legitimacy of the constitution because once you start taking the consent of the government idea very seriously first of all you're then moved to see well just how much consent was there at the found at the formation of the government and then you're going to find what there was was voting by a majority of delegates selected to conventions uh... that might or might not represent a majority of people uh... in the population at the time and then the question always arises in political theory as to how can a majority by a minority how can a majority by its consent by a minority and that's just taking the founding as your starting point then the you have the next question which is always raised and that is why with the consent of those who were living two hundred years ago bind us today i'm not going to belabor all the problems with this position the forty five pages is mostly spent explaining why this concept of consent of the governor's problematic it's not spent justifying the alternative it spent showing why this is a serious problem but i think the alternative is significant it's actually rather simple uh... and it isn't some it isn't just the opinion of a massachusetts professor although i'm really consider myself more chicago boy than a massachusetts professor uh... but it's it's it's it's i think what is even at the heart of what judge sentel gave us his explanation of legitimacy and that is if you have a process of government that if you have a system of government that provides procedural assurances that it's going to protect the rights retained by the people uh... and it doesn't violate the rights of the people on whom it's imposed then that government is legitimate you know doing this by means of conventions in which you have these things hammered out and you have these majoritarian votes is one way of accomplishing it of course conquering countries like we did to japan and imposing a constitution on them is another way of doing it not the way i'd normally recommend but it didn't work out too badly for them uh... but the upshot of this is not where the constitution came from but how good a constitution is it and it isn't a subjective judgment or let's put it this way it is no more a subjective judgment to decide whether a constitution does effectively protect rights than it is to decide whether there really was at any given time consent of the government that's also an opinion that we have to reach after analysis not here and now uh... so i think reluctantly i had to put the forty five pages in and i would in fact urge you to read it but the truth of the matter is if you did skip it and you skip to the next chapter that'd be perfectly fine uh... provided that you by the book now the the said that last part i want the last i want to talk about is the issue of judicial activism i'm tempted simply to leave it at a aphorism that i i i i put in that kato uh... journal uh... all those twenty years ago uh... when i said in that in that article uh... before i really was a constitution i was just a contract professor then and that was judicial activism in pursuit of liberty is no vice and judicial restraint in pursuit of justice is no virtue uh... if it to paraphrase someone or another uh... carl hess or somebody the uh... but uh... the so uh... but i'm not going to say that i won't just rest on that uh... i i i i i i think that judicial activism point is an interesting one because the term judicial activism in my opinion is almost completely empty a meeting uh... i'd never use the term judicial activism to criticize uh... accord except once and that was to criticize the florida supreme court in bush v gore in an op-ed in the wall street journal in between their ruling and the subsequent reversal by the Supreme Court of the United States. And that was only because I was adopting the view that I'm adopting here, which is it is simply judicial activism to ignore the Constitution. That is the only, that's the only definition of judicial activism that actually has any substance to me. Otherwise, it's basically a word you use to criticize courts when they strike down legislation that you approve of. It certainly can't be something, unless you believe the court should never strike down popularly elected, popular, legislation that's the product of the Democrat, supposedly more Democratic branches. Then you are going to have to pick and choose when they're supposed to do it and when they're not supposed to do it. What's the ultimate criterion of when they're supposed to do it and when they're not supposed to do it? On my thesis, the ultimate criterion is does the Constitution permit this or does the Constitution not permit this? So the ultimate criterion of activism is whether the Constitution allows this behavior on the part of government and it's the first duty of judges to say no if it doesn't. And that is not activism if in fact they are enforcing the Constitution. And so on that note, I would suggest that we have to consider judges not to be the superiors of the other branches of government but to be the equals of the other branches of government. And before a particular law is found to be constitutional, all three branches of government must agree. And if one branch of government, like the judiciary, is going to defer to the other branches of government, as they do under the presumption of constitutionality, then we have lost a serious safeguard that was built into our original Constitution. Thanks. All right. Thank you. I'm going to take the prerogative of the chair to ask three quick questions and if you could give three quick answers, please. Walter, why don't you pick up on that point that I raised, the Railroad Retirement Act you said was one place where you disagreed with Randy because it was an example you thought of judicial activism in the court substituting its judgment for that of the legislature as to whether the imposition of this compulsory scheme would increase efficiency. The court may have said simply that we're not substituting our judgment but rather if indeed this would have increased efficiency, then why is it we didn't leave it to the railroads themselves to implement this retirement program rather than have Congress do it? You know, I think that is on balance a convincing point, but it takes me right back to Randy's point, which is to say that Randy's last point about judicial activism, I love being the apostle of judicial restraint on this panel, by the way, Randy's point about judicial activism in some sense assumes that these are sort of black and white answers and that you're an activist court if you failed it or you're acting not probably failed to strike down what you should strike down, but there are questions on which human judgment may pause and I think there are certain judges like John Marshall Harlan II who will often think, well, I think this act is not one that necessarily accomplishes the objective, but people in Congress disagree and there's room for disagreement and I'll stay my hand. I mean, there's an attitude of mind and disposition to think that others' judgment may be entitled to some respect even if you would differ with it. And so even if your point is well taken, that's a debate. I've always heard that argument as well and Congress resolved it and it doesn't seem clear to me that there is a basis for saying that you should strike it down. Okay, fair enough. David, you suggested that the founders were of the view that we're not supposed to know all the rights that we have and indeed Randy makes the point that that has to be the case because there are an infinite number of descriptions of our rights and obviously none of us can know infinity. However, you then went on to say that courts are more likely to secure enumerated powers than unenumerated rights even though both doctrines are part of the Constitution. Well, I can understand that coming from a judge who is, let us say, of the conservative persuasion. Maybe judges of a more liberal persuasion might think just the opposite and maybe it is the case that, and I have the Lopez, I mean the Lawrence case in mind here, where it was an unenumerated right that was secured by that decision, that it's possible that we can have both secured as we go along. That is to say liberal judges securing unenumerated rights and conservative judges reviving the doctrine of unenumerated powers. I think perhaps it's a difference of emphasis rather than a difference in totality and both topics are taken up and well discussed in the text. But there is in the real world as to whether you're going to get anything restored or not the question of whether you're going to be able to get first majority opinions and second majority opinions that are going to gain the fealty of the public and the political branches. And Lawrence may be a good example of a case that you're not going to lock the long range upshot of, because when the courts go out to identify the right. It affects me not at all. Let me make that very clear. Well, let me finish. Lawrence, I mean. Lawrence enumerates a right that you're going to have a hard time convincing. Most people exist or a great many people exist and you may find more tinkering with the Constitution and more attempts at court packing or court circumvention if the courts are attempting to come up with previously unprotected rights and write them into the meaning of the Ninth Amendment or the fundamental liberties of the fourth footnote or any other source than if you simply have cases like Lopez which Professor Barnett alluded where the court draws back and says the government just doesn't have that power. I will grant you the question of the guns free school zones was and perhaps remains a controversy but nobody's outdrafting amendments to the Constitution. Nobody's trying to run around the court on the subject of there are limits to the enumerated powers. Walter and I were seated not next to each other but very close together during the argument. Sandra Day O'Connor the famous swing vote asked the first question and her first question for Drew Daze was if we accept this government's position on the constitutionality of this act what is left of the doctrine of enumerated powers? Mr. General Day looked like he'd been kicked in the stomach. We wondered if anybody had mooted him for this argument at all but there was Sandra Day O'Connor whose vote is the one you're reaching for it was right there on enumerated powers and an opinion came out that revivified that doctrine in a way that hadn't happened in years so I think on the ground you're going to get a lot further with enumerated powers. I just wanted to point that we... Even I was persuaded by Lopez. Yeah, with Lopez on one hand and Lawrence on the other it seems to me that we've got both issues in play. Finally Randy you have come down to the famous phrase ultimately of deeply rooted in our nation's tradition and history which of course will get us only so far and indeed might even undermine some of the agenda that you'd like to see would you leave it at deeply rooted in our nation's tradition or history or do you see the need for the court to go beyond that touchstone by way of fleshing out unenumerated rights? No, my point was that that's a wholly inadequate standard. That's the standard that the court has hit upon in order to try to cabin its freewheeling discovery of unenumerated rights because after it was subjected to these sorts of criticisms for judicial activism but I don't... My point is that it's a wholly arbitrary principle in application because it depends entirely on how you define the right and if you find the right generally it will be deeply rooted. If you define the right particularly it won't be deeply rooted and so that doctrine simply is inadequate. I do want to... I didn't really address the point that Judge Santel asked about in his main talk in which he just renewed about what is the more likely avenue towards progress as a transition which I also don't talk about in the book but I tend to agree. My experience in the Ninth Circuit litigating the medical cannabis cases I think supports the fact that we're much more likely to make progress if we enhance the enumerated power scheme than if we try to pursue the unenumerated rights scheme. I'm obviously a big proponent of doing the unenumerated rights part but we won in the Ninth Circuit on commerce clause grounds. Unless you read the Ninth Circuit as having wanted to put it to the Supreme Court on the local... Well, my goal was to get the Ninth Circuit to think that way and so we could win and then we'll take the Supreme Court up when that time comes. But I also think I view the Lord's case in very similar terms. It wasn't so much that the right there was declared to be fundamental. It was simply that because it was declared to be a liberty that is a conduct that did not obviously harm anybody else now the burden was shifted to the legislature to justify what it did. It was a burden shifting move like it's supposed to happen in fundamental rights jurisprudence and the legislature had no justification beyond its bare judgment that the conduct in question was immoral. And if we allow legislatures to outlaw acts simply because in the opinion of a majority of state legislators that a conduct is simply immoral and nothing more there is nothing it cannot outlaw. And if there's nothing under a doctrine that a state cannot outlaw that is a tyrannical doctrine and not one that's consistent with limited government on either the state or federal level. Okay. Let's now turn it open to you. Please identify yourself when the microphone comes around and any affiliation you may have. Keep your question brief and please keep your answers brief up here. Let's start with Don Wallace. Don Wallace, Georgetown Law School. A question for Professor Barnett. Would we have been better off if there'd been no First Aid Amendments, no Bill of Rights? That's a great question. That's one of these hypothetical thought experiments that it's like what original intent people do. They channel the framers and they think what would have happened, what the framers, how the framers would have decided something. I have to confess I think not. There is, here's the argument why we would be. I mean, prior to the adoption of the Bill of Rights, many things were thought to be improper under the Necessary Improper Clause. There's your text, the whole Bill of Rights essentially could be found in the Necessary Improper Clause because the law would be improper if it violated these background rights. There might have developed a jurisprudence of judging that would have been judging the propriety of these things in the ways that I've said and would not be cabined or constrained in the way the Bill of Rights is. In that case, if that had been the counterfactual history, it would have been better off. The reason to be concerned that we wouldn't have been better off is that there's no reason to be overly confident that these judges who are, in some sense, the heavies of my story, I say in the first sentence of the book, if judges had been doing their job, this book would not need to have been written. There's no reason to be overly optimistic that they would have done this. And in fact, it seems to be that the safe harbor of textual protections of certain rights have probably made us better off. Because in the absence of that, we may have gotten nothing at all. There's a question right back there filled with this hand. Mike Gravel at the Democracy Foundation, I'd like you to address this concept of the consent of the governed. Now, with respect to the governed, I do not include the court, since they are part of the governing group and the Congress or the executive. Now, in our history, I know of no instance where we've had a determination by the existing governed of their acceptance. And so how can we continue to advance the thesis that our Constitution presently exists at the behest of the consent of the governed when I know of no procedure for the governed to assert their acceptance? Well, that is a question or that point is sort of a subset of this general first 45 pages that we've talked about that's been mentioned. But here's the sense in which I think the consent of the governed idea has proved to be a pernicious one. I mean, it's OK. Actually, it was invented for very good reasons. The consent of the governed or popular sovereignty was invented as a way of constraining the power of kings, which was a good thing. But here's the sense in which it's turned out to be a bad thing. If you have this version of consent, and it turns out in reality, no government can meet up. If you really take the point seriously, no government can qualify, including our own. And that's why you see all these sorts of disparagements about what things were like at the founding and how the 14th Amendment might have been ratified or different sorts of things. If you have a standard that no government can meet, then that delegitimates that government. And I believe this is a standard that if you really take it seriously, as critics of the Constitution do and they don't like it, the Constitution won't be able to satisfy. And that undermines its legitimacy. And in fact, what would greatly enhance the legitimacy if we realized it was the procedures that the Constitution puts in place that makes it legitimate. If those procedures are strong enough and good enough to protect the rights retained by the people, I think that the procedures in the Constitution, as written, have a much stronger case to be made for them than the Constitution that has been redacted by the Supreme Court on that score. Moreover, the consent criterion can justify too much and too often done. That's another very serious problem with the consent of the government. If you take it literally, that in fact the Congress somehow, for example, represents the people, is the people, personified, since by consent, we can consent to anything short of alienating our inalienable rights. We can basically consent to everything. If they are us and we are them, then just by passing their laws by majority votes, they can take away all our rights because they're us. That fiction is extraordinarily dangerous, and I do talk about that in the first 45 pages too. Is there a question right here? Manuel Lopez, not the Lopez of the Lopez case. Just to defend a little bit democracy and the governing by the governed, it seems like you leave out the most important objection to judicial activism that I'm aware of. Two important objections, let me put this way. First of all, it seems to me that when judges do things, they often do things in a very abstract and ideological way that doesn't end up representing a very prudent policy on issues, taking the most egregious cases of judicial activism where they step in and run school boards in order of school busing. They make blanket policies on abortion. They direct legislatures to, you know, change fundamental laws like marriage. All of these things, it seems to be governed by the bent of lawyers. They're bent for abstractness. They're bent to confuse justice with equality and a kind of logical sense of equality without more complicated considerations that people deliberating would consider. There are other things that are affected in people's lives besides the protection of a particular right that's issued. And the second thing would be the impact on the level of freedom. The level of freedom is, I think, a delicate thing. It has complicated grounds and one of the grounds of it is that people govern, that they don't feel like they're being, you know, don't defer to being pushed around by bureaucrats and judges and lawyers and that they feel like they, on the most important issues of the day, know their say matters. And I just would like your comment on that. Well, there's lots to be said about that. It's a very fundamental point and I, in the interest, I mean, of the time I'm not going to be able to say all that could be said about it, but let me just suggest this. I have a client, Diane Monson. I've never had a client before. I was prosecutor. My client was the people of the state of Illinois, which is sort of a theoretical client. I have real clients now. Although I'm not getting paid, it's pro bono. And my client, Diane Monson, is growing marijuana on her own property to consume herself and the federal government says she can't do that and she's a criminal and they've come to seize her marijuana. And she's suffering from serious illnesses that this marijuana helps alleviate and she is a law abiding small business woman, had nothing whatsoever to do with the pot movement or anything like this until she became sick and she found this worked. Now, the government's telling her she can't do it. Over the objection of the state of California, I should say, which says she can do it. The federal government's saying she can. Now, I see some bureaucrats now beating up on somebody. I see it right there in our case. And it's only a judge. In our system, they may be other systems. I talk about in my first book that might be possible besides the one we have. But in our system, where can she go for redress, if not the courts? And if the courts are going to simply say, as they have it, every stage of our litigation until the Ninth Circuit ruled for us, in our case, just a couple months ago, if the judge says, look, that's not my job, that's the job of the legislature to decide. Well, Diane Monson is out of luck. The only place in our system where the individual, as opposed to the lobby group, can go to get redress from a grave injustice which is being done to her in this case is a federal court or a state court. But in this case, we're talking about a federal court. And it's only federal judges. If the trial judge denied her relief, it was the Court of Appeals that granted her some relief. And if this is judicial activity, I don't think this is judicial activism. She's not asking the court to do anything but enforce the Constitution. And to me, this is as compelling a case for empowering the individual against the bureaucrats as it would be to empower individuals to lobby in order to pass laws that are going to restrict what their fellow citizens can do. Can't she go into the voting booth once every two, four, or six years? Can I have just one short comment on that? Sure. And it's an area in which I think there's more agreement between Professor Barnett and Member of the Audience than has so far been evidenced when you spoke of the activism of judiciary taking over and running school boards. That is a point to which, you find allusion in the text that there is a difference between a court that stops a government from doing something that's invasive of rights and a court that compels other branches of government to govern in a particular fashion. The courts are supposed to be supreme only in judicial matters when the courts overstep and begin to tell the other branches of government, the other levels of government, how they should govern, then that is something to which Professor Barnett does address criticism and I think rightly so. That's absolutely right. Yes, this gentleman right here. I'm Jay Baker. Professor Barnett opened his talk with the image of the court mutilating the Constitution by cutting things out. With modern technology, the court can do harm not only by cutting but by pasting as well. One of the pasting that particularly concerns me is with regard to the Equal Protection Clause of the 14th Amendment where they've added the phrase unless there's a compelling state interest. I wondered if you could say something about the origin history of this particular pernicious pasting. I wish I could but I can't. It's not about liberty and not about the Equal Protection Clause and so it doesn't discuss the Equal Protection Clause and I was not an originalist until very late in my career when I finally became persuaded of the position of originalism because I was persuaded prior to that of the criticism of originalism and I believe those criticisms are still valid but I then identified a different version of originalism that isn't a subject to those criticisms that I've typically offered but one of the burdens of being an originalist now I've discovered is that one can't opine on subjects about which one doesn't really know the history very well and my book doesn't really cover the Equal Protection Clause and so I can't really say very much authoritative about that. I wish I could. However, I will say this about just compelling state interest idea in a divorce from the Equal Protection Clause. It's a really pernicious concept because a compelling state interest is sort of the same thing as saying there's a good reason, there's a good idea. That is that itself particularly at the federal level is a complete evisceration of the enumerated power scheme. The only compelling state interest that are constitutional are the ones on that list. The protection of interstate commerce, the raising and supporting of armies, the establishing of post offices and post roads those are the only officially approved compelling state interest. All other interests, however compelling they may not be, are not genuinely state interest at the federal level. At the state level, this gets us into the issue of what is the proper conception of the police power and in the chapter on that I argue that the proper conception of the police power is limited to the government protecting the rights of each of us from those of others. A power the federal government does not have but state governments do have. They not only have the power but the duty to protect each of our rights that is the only compelling state interest that at states may instantiate. So I think the doctrine you've been the concept you've alluded to is extremely dangerous because it removes all constraint on the exercise of power at either the state or the federal level. It's one more of the products of footnote 4 in strict scrutiny. Next question. Right in the back there you see the hints. My name is Andy Hawks and I'm an attorney by profession. I don't mean to ask an unduly technical question but one of the legal doctrines it seems to me that makes it so difficult to restore the lost constitution is the lack of taxpayer standing to sue to give you a a concrete example the Kato Institute issued a statement recently criticizing funding for the arts federal funding for the arts which strikes me as a classic example of unconstitutional spending. But I don't think there's anyone in this room who could follow a lawsuit to stop it. Is that the problem of standing in your book or if you have any comments on it? It's a very good question. I don't have an answer to it. I'm open to the argument of others. I know the issue but I don't have a considered judgment on the matter. I will say this that even in our medical cannabis case we held our breath on the standing issue not with standing the fact that one of my clients had her plant seized under current standing doctrine if the judges of the Ninth Circuit wanted to they might have made my life difficult by asking me about that I think we had good answers but they were answers that if a court had wanted to reject they might have rejected so I know enough about standing to know I don't know enough about standing doctrine to have a reformist proposal that I could make today I do think you're right though and I encourage those of you who are here who are interested in research topics and want to advance the cause of liberty and the topic seriously. There's one of the great reasons that the general welfare clause has been expanded is because there was no standing at taxpayer had to challenge it. Walter you want to? Yes I do I think this is an area that really does define the difference differences we may have over taxpayer standing I'm sympathetic to the substance of the question it does told me that we have an agency that engages in basically censorship it decides what projects it will reject and what projects it will fund whether it approves of the message being conveyed so I oddly find that it may be odd but I do find that troubling taxpayer standing it does seem to me really turns the justification for judicial review on its head and Marshall said the only reason we as courts have the authority Marshall and Marbury against Madison the reason we have the authority to say what the Constitution means is because we have a job to do the job is to resolve disputes among two people with a real dispute here's a guy that says he deserves the commission to be adjusted to the peace here's this other guy who's withholding it from him we've got to resolve that dispute that's the only reason we have to apply law and the Constitutionist law what Flance vs. Cohen where the court partially expanded taxpayer standing says and the Warren court is to challenge expenditures to religious institutions the Warren court turns that upside upside down and says between the lines our job is to annunciate the meaning of the Constitution and we have to find a case in order to do it and I think that turns the justification of judicial review on its head and greatly expands it in ways that I would find troubling and it's one of the differences let me get some help here from my fellow Dario yeah again consistent with your text the judiciary is supposed to be supreme only in matters that are judicial when they are judicial you have a real case or controversy between people litigating their personal rights when you have the political question of whether a particular program should be funded in the first instance you don't have a concrete controversy between persons whose personal rights are invaded in the way that makes it a justiciable question there's not much use in having a legislature having vetoes if you can then bring a request to the court and say well I don't really have an ox being gored but this is a bad law and as a citizen my rights are being violated that you passed a bad law you're spending taxpayer money whatever you do therefore the courts then become open to everything we're no longer courts we're a super legislature a super veto power and I think the standing doctrine is one that performs more good than it does ill I think when you take away the plant it sounds to me like they're standing and let me say if you read my cases on standing if I think they're standing you're not going to lose many judges because you would not like most of my standing doctrine cases and I wrote most of the recent ones in DC but our function is to adjudicate judicial cases not to go into the philosophy behind good and bad laws well how then David would you handle the general welfare clause problem the question whether it is an independent power and the part of Congress to spend for the general welfare Hamilton well good but of course in Butler they decided to do the other way and then in Halvering they raised the dicta up to the holding of the case but the great problem under the general welfare clause was that nobody had standing to challenge the abuse of the general welfare you're forgetting the right to vote well then you see the question of the interpretation of whether it's an independent power or not a question of constitutional interpretation or construal it's rather a political issue no I can say I can on a run saying that we've gone off the track some of you approve of some of this general welfare some of you do not but I'm saying I'm going to institute a government that is going to be more restrained I mean you show so little faith in the people that we can't use that as an argument in an election I mean the premise of the question by the way was exactly right it is the limits on standing that reduce the judicial role and therefore the enforceability of some of these we just differ on whether we think that's unbalanced a good or bad thing we do agree with the premise of your question ready would you solve this problem I want to emphasize something the book that I've written which is under discussion day is a very ambitious book it covers an awful lot of territory but it doesn't cover all territory it is not a theory of everything constitutional it is limited to the following subject what should what should the approach what what is the correct constitutional approach when the government is commanding us to do or stop doing something when the government is telling us what to do or what we may not do that's a direct that's the issue of liberty there are many you have standing then then standing is not a problem and that's the subject of my book it's not about the equal protection clause which is another part of the Constitution that's extremely important but that's not the subject of my book which has to do with when can government give privileges to some and not give them to others and when it must treat all the people and when is a rational classification what is not it's not about that it's not about the general welfare clause either and so as ambitious as it is it is only about liberty and that means that there are other books to be written on these other subjects