The National Federation of independent business when they challenged the Affordable Care act all the way up to the Supreme Court. Host given all that experience, professor barnett, what do you think of the constitution . Guest like the constitutional law. I like it more than those who want to change it by creating interpretations of what is supposed to mean by eliminating large parts of the constitution. Host heres your book, by the way, restoring the lost consultation the presumption of liberty. When we had that argument between a living document in a strict constructionist argument, looking at the constitution, is that a fair argument . Guest i wouldnt put it quite that way. I want to follow the constitution and thats what keeps it alive. As firstrate construction, it was justice goalie when he says he went to correctly construe it. Neither strictly and are liberally, but accurately thats the thing we have to aim for. Host the subtitle of your book is the presumption of liberty. Guest the presumption of liberty is the way of putting that the constitution says into effect by basically saying that the government ought to be about to justify its restrictions on liberty of those restrictions are really reasonable. In fact, under current law, unless you identify a fundamental right at issue are your part of a suspect class of people overseas special protections, the government doesnt have to justify to restrict liberties. To get the presumption in favor and that tends to be a rebuttable. Host can you give an example . Guest and economic regulation for example would be very hardpressed to challenge it. For deliberate reasons, the congress and state legislatures are given virtually Unlimited Power over regulating the economy to one of the reasons we challenge the Affordable Care act, the only thing is the insurance mandate because that vista beyond which congress had ever gone before, so we are able to challenge that. Everything short of that was very difficult to challenge. Host what is the takings clause in the constitution . Guest the takings clause is private property be taken for public use without just compensation. Host how is that taken away our liberty . Guest certain parts of that have been part of the lost constitution. The lost constitution i should clarify or the parts of the constitution that have been taken away. It isnt completely taken away, but the public used phrase has been reinterpreted by the court as meaning public purpose. So rather than taking property for public use, which refers to schools or highways or railroads were Something Like that, a public purpose has been construed as broadly as economic development, nick in the world a nicer place in individual homes likes to say kilos home got taken to do it develop that would be on behalf of the company in new london, connecticut, which never got done by the way. She lost her house because of the public purpose, not because of the public use. Host what was the end of the case . Did she lose her house . Guest she ultimately lost five to for the Supreme Court. Finally, the city consented to allow her to the house to another location. The neighborhood she was part of his gone. Its a dumping ground for debris. Said the part of the last constitution, the theme of my book is that public use should be restored in place of what the courts have put in its place, which is public purpose. Theyve either been completely eliminated or key phrases have been substituted. Host such as . Guest the ninth amendment says the enumeration in the constitution insert i should not because true to deny or disparage others retained by the people. That would have a dead letter. That is when the courts dont follow. The Fourth Amendment has been in his classes is no state shall make or enforce any law, which shall abridge villages or immunities. If he came from mars they told you that was in a legal document, you might say that sounds pretty important. Wonder what that means. It sounds very important. In fact, its only been used one since 1873 and i got it from the constitution five years after it years after it was put in the constitution in a case called the slaughterhouse cases. Recently when given the opportunity to restore the privileges or immunities clause in 2010, the Supreme Court declined to do so. Host randy barnett, as a former prosecutor, when she taking peoples liberties away from them . Guest course good advice, government takes peoples liberties away when they violate the rights of others and also can properly regulate is on its regulations are reasonable and can be shown to be reasonable in the pursuit of an appropriate government purpose. I dont know if its nose, but a great many regulations are in pursuit of helping some special Interest Groups at the expense of the general public were some other competitor. Those would not be generalinterest types of regulation. Reasonable regulations are constitutional prohibitions are also constitutional. I became a state prosecutor because state prosecutors prosecute crimes of murder, armed robbery, theft and those violate the rights of others. Host why is the individual mandate in your view in the Health Care Law unconstitutional . Guest is actually not only my view. I justices on the Supreme Court including chief Justice Robert thought requiring people to engage in Economic Activity or commerce in order that it can be regulated was beyond the powers of congress. Therefore, the individual mandate is unconstitutional and the reason he was unable to uphold the Affordable Care act with his view that do this ceiling construction which he changed mandate into an option to either pay a tax combat pay the penalty which he construed as a tax or buy insurance, but you are no longer required to buy insurance because i was unconstitutional, just like we argued. Host randy barnett, if someone reads a restoring the lost consultation, do they have to be a law scholar . Guest i hope not. It was for a general lay audience i have people who fret at more than one third event of gifts to others because it really opens their eyes about what is missing in the constitution and how it came to be. It is a serious book. It is not superlight, although i try to be lighter than a material added at the end of the updated edition, which came out of the last few weeks. Their 60 pages of new material at the end and i think theres a lighter touch to that than there was the beginning of the book. Generally speaking, is accessible to a generally educated audience. Host do you think the constitution is further amended . Guest i proposed an amendment to the constitution. The intention is to restore the lost count to two shin. Host another one . Guest oh, i think theres a proposal to, well, theres a proposal that the court should follow the original meaning of the constitution which is what the book is about. Theres a proposal to, basically, repeal the income tax amendment and say congress cannot tax income no matter how derived, but they could have a National Sales tax instead. So theres that proposal in there. Theres a proposal to ban Unfunded Mandates that are imposed on states. Although there are very few of these proposals that have to do with states across states, theyre mostly all to do with individual liberty. Host randy barnett, what courses do you teach here at georgetown . Guest well, after teaching my way through the curriculum, i teach our course on common law i, common law ii which is constitutional rights, and this book is about both of those things, and ive taught contracts since i started teaching way back when, and i have a case book in contracts and constitutional law as well. Host a lot of our political discussion these days is about National Security agency, privacy. Whats your take . Guest well, i dont talk about it in this book, but i do have a recent piece in the journal called engage published by the federalist society, and i had an oped in the wall street journal arguing that this bulk data seizures that the nsa has been engaged in is unconstitutional under the Fourth Amendment and its actually illegal under the usa patriot act which is what they purport to have as their authority for it. So im actually greatly concerned with what the nsa is doing, and ive argued theres serious constitutional questions, and i even joined an amicus brief with jim harper arguing it was unconstitutional. Host i think i read that texas has passed a law making email, giving email Fourth Amendment protections. Guest um, im i havent heard about that one. Host right. But if thats the case, i mean, with the Commerce Clause and the interstate Commerce Clause, how would that play out . Guest well, all texas could do is protect email from their own Law Enforcement officers in the state of texas, which is what they ought to do. They cant really have any effect on what the federal government does when they pass a law like that. Host in your view, is email due Fourth Amendment protection . Guest absolutely. I do think they claim to give can it Fourth Amendment protection when they say they cant read your email, they can only survey the headers, information as to who you send it to and who you got it from, and theyre claiming not to be able to read your email, so theyre sort of admitting that email is protected already. But be i think metadata which is what they call the headers or in the case of a telephone who you all or how long you talk for, metaa data ought to be protected as well. It doesnt mean you share it with the world, including your friendly government. Host when you look back at the Supreme Court, who are some of the justices that you most admire, some that you dont . Guest i actually dont have very many heroes on the Supreme Court. Most of them i probably am sort of tepid to lukewarm about. I would have to say the first Justice Harlan who wrote the dissenting opinion in the civil rights cases which was otherwise unanimous besides his vote was and also a dissenting opinion in plessy v. Ferguson on behalf of a very important reading of the 13th and 14th amendment, he is somebody who at least at that stage in his career i admire. Also chief justice salmon p. Chase who was an antislavery lawyer. His nickname when he was a lawyer was the attorney general for runaway slaves. When he became chief justice succeeding the racist Justice Roger tawny appointed by abraham lincoln, i thought that was a great moment for liberty, and ive done a lot of work on salmon chase in recent years. Host randy barnet, t, restoring the lost easy for you to keep an eye on what is happening in washington. In washington. Washington journal continues. Host were back with two authors. Mie parnes and Jonathan Allen coauthors. What story are you trying to tell in this book about Hillary Clinton . A couple of storylines. One is her comeback story. I find it fascinating. I think anyone would find it fascinating. Mostly how she would govern if she were president. This is her biggest management job. She manage a 70,000 person bureaucracy and how does she govern and what decisions does she make and who does she surround herself with . All of these things are highlighted in the book. If you are trying to figure out what kind of president she would make, what did you think you needed to say about her . We needed to figure out how makes decisions, what she puts an emphasis on, what her priorities are. She has had a lot of experience inside washington. Nobody campaigns successfully as the ultimate washington insider. That might be good on television but not necessarily for president ial candidates. The truth is what we see with a lot of recent president s is the inability to maneuver in washington and work with congress, a lack of understanding of how agencies and the private sector work and interact. We wanted an idea of her views on those things. Is of the things we found that she is seen as having a bias for action, wanting to do things and be willing to take risks, calculated risks, but take some risks in order to try to achieve something. Most politicians are riskaverse. Host what did you learn about , her personality, her decisionmaking process . Guest the bias reaction she has. She is a retail politician in her own right. We think of bill clinton as a gregarious guy but she does it as well. We tell a story about how she left the state department and cents 16,000 thank you notes to people, 5000 of them handwritten. Quite a task. We thought that was interesting and also how she kept tabs on politics. To 112 away and travel countries, but she always had her pulse on what was happening here back home. Host why do you think that matters . Guest it matters in terms of politics. Running for president , we detail how she cut the operation and continue to reach out to the business community, to supporters throughout her time in the state department, helped her husband settle scores on the campaign trail, held president obama with the election. It all sets her up in a better 2016, thanking people. A lot of times when president ial campaigns do not work out, candidates and and it is the end of the world for the them. Not only does it help in terms of trying to win an election later, but it helps when you are trying to move them on public holocene issues later on. It is classic politics, the thing all oldschool city mayors would do, and something that is one of hillary and invite these ways of reaching out to people. Her husband has great charisma in terms of Winning People over. She has got to work harder at that. It is interesting there is a lot in here about bill clinton and what he is doing at the same time that she is secretary of the state. Why did you include that in the book . Guest they are interwoven. I see her as an individual person, but he is so much a part of her life. His story is her story. They are tied together for good and bad. Host would her aides like it . Guest i do not know they necessarily like the image. I know not all of these things in this book. Land anda hillary eight the world and they make a claim you universe and there is a crossover when you have two principles with their own interests, sometimes, it lines up perfect we and sometimes less than perfectly. There are strategies for getting things done. A lot of conflict. Did you hear from the former secretary of state . Are not talking about who we got it from. We heard the reaction. Its reviews. Some clintonites not happy with us. Some happy and content with the book. Guest that is probably a good way to say it. One of them was this hit list where they tracked the people who do not treat her particularly well and then bill clinton went out on the campaign trail and not many of them out in the primaries. Nobody in clinton land like that at all. That made news, but there was one part in here where you talk about claire, the senator, by how much she is disliked the clinton camp. Why is that . To this day. It is interesting. She has come out early to endorse Hillary Clinton. To 2006. Back the clintons had campaigned and fun raised for her and she was wasmeet the press, and she asked about president clinton, and she said something to the effect of, i think he has been a great leader but i would not want my daughter near him. That angered a lot of clintonites and following that, she made a quick to a friend saying, she would not want to be stuck in an elevator with her, which we found to be interesting. In 2008, she not only it sourced says in senator obama, but the issue of a fresh endorsement every day on television, they had the headquarters, people were cursing their tv sets every time they saw her on whichever show she would be on. They got very upset or you now where come full circle she is trying to get back into clinton posses good graces. Hillary clinton herself and bill clinton will be gracious about that, but when you talk about their talk to their aides, they still hate that and it will not change anytime soon. I want to go back to her personality and what goes into it. Your book. Part of she has something driving her more than just power. A strong moral compass. This is a quote, that she leans into. She does not wear religion on her sleeve, but if you had any length of conversation with her as a methodist and talked with her about her faith, she will be very insightful. Oft do you make of the role faith . Is something she has spoken butt at times before, clearly, it is important to her. We found out she is on an email chain with a small set of old friends. 2008, ah adviser in longtime clinton aide, Jesse Jackson before them. They s andss religious teaching stuff like that. She does not often want to go to church in public because she worries about disturbing other peoples ability to worship because of the fanfare that comes along when she sleeps in with the secret service or state department detail. It is something that matters to her. Her fate is in methodism, a strong component of Public Service in it. Role to do as her things for the better good. Not everybody agrees with her view of how that should happen or what is the better good, but it is something driving within her. You writes that played a role in her decision to accept president obama, many please for her to join his it ministration and take over the state department. Guest she dodged him a few times. Went out to chicago and they sat and she said no and he said to think about it and sleep on it. Calls aed his fault few times. What eventually happened was he offered it to her, and she said, lets talk conditions and called him back one morning and that was a sign. The way she explains it is, if she had been president elect, and she had asked president senator obama to serve for her, she would have expected him to do it. She has a call for Public Service. She is a politician, but this is something she really believes in. There are more details to d