Coming up next on American History tv, a conversation about the book the Classical Liberal constitution the for limited est government. Author, are the books theodore pstein, and ruger. This hour and 15 Minute Program was hosted by the National Constitution center. It was moderated by its president. Welcome to the National Constitution center. Im jeffrey rosen, tthe present is wonderful institution. It is so great to welcome you a the keynote event of blockbuster fall cycle. The National Constitution center is the only institution dedicated to the constitution a nonpartisan basis. A new gallery displaying one of the 12 original copies of the bill of rights. This is the first time that to l of rights is returning philadelphia. It will be joining the gallery copies of that making us the only institution in the United States of america to display three documents of liberty on the same place. Will join us. Ou i cannot help but plugging the evidence coming up. Incredible debate about collecting cell data information. We have the government on john marshall. The freedom medal. On october 27, the of rights the bill gallery. The gallery is being named after george h. Bush. It will be an incredible fall season. For all ou will join us of it. I could not be more excited to open this panoply of discussions on the bill of rights. With my friend and colleague, one of the most distinguished constitutional theorist, richard epstein. The the ew book, Classical Liberal constitution for limited n quest government. In our discussion is evening, well discuss how richard to the an alternative conventional theories of interpreting the constitution. Of the classic liberal constitution. Be thrilling to see the power of his ideas. By cannot be better served my friend, ted ruger. He has written about american legal institutions by the Supreme Court. We will have a great conversation. All right, richard, we had so much to discuss. I will jump right in with one of the most striking of your claims, which you make throughout the book, but in in the conclusion, using the central message of Classical Liberal constitution is to go against of jurisprudence you also save repeatedly that the conservative originalists have moved too far in embracing judicial restraint. One of the things you have in constitutional law is to sometimes accept the proposition that the obvious proposition isnt true. Various kinds at of constitutional provisions, many of them are drafted in very broad terms. You can only way that understand words like freedom and private property is to be they are igure out how used, both as political theory, and commonlaw. Private property, for example, is an old embracing notion. To say that you believe in the fidelity of text, and narrow interpretation, essentially puts to ideas and tension with one another. You are not loyal to text, if read it narrowly so, the is figure thing to do to interpret the reading. Austin, Justice Scalia thinks that the constitutional text is selfcontained. In fact, going back to roman tell you that uld of the last expert on roman strategies say that if we a prohibition on private property, we should prohibitions on that take you can never private property, for you if you can take private property, helped you measure should be ons when it just. Of s whole elaborate body noncontextual stuff must be read in. Conceptual stuff usually falls under police power. Where every constitutional provision is subject to health, safety, and general welfare. The project becomes extremely hard. Unfortunate, interpretation is a human activity. It is often done by people who do not get quite right. To do is when you go on the first wrong step, keep going down that path. In many cases, the thing to do ratify earlier errors. Two ive you just illustrations the general on judicial review. Pretty clear that if prone textualist, you do the two things. Able to n have to be incorporate those changes that become so ingrained in American Fabric that it becomes impossible to get rid of them. Look at land law. So, ted, richard has set a number of important things, namely that the conservatives are wrong to be pure textualist. Justice scalia says that being a is wrong for pure originalist. Progressives are wrong. Is he offering basically a political theory . He believes the Classical Liberalism and body by john locke is the right answer. Do you agree . Would just say to your two questions, yes and no. I should say, im very happy to be here. Love the book, it is worth reading. I agree with much of it, but do disagree with some things. I applaud richard critique of a intent, original originalism. There has been a renaissance of this kind of thinking. I think it is wrongheaded for many of the reasons that richard stated precision, intentionally s, vague words that chapters of the constitution used. I also applaud Richard Kander and bringing in this clear prescriptive unifying vision of Classical Liberalism. I think he plays his cards on the table. It is a powerful vision. It is a vision that someone who considers himself a progressive, i agree with many parts of this liberty protecting vision. This leads me to a few inconsistent quibbles more with the book. Im reminded in law school about inconsistent critiques we talk about the borrowed kettle it goes, my me and says e to look you about my cattle, and you gave it to me cracked. No, no, i have three reasons, when i bought it from you it was already cracked. When i gave it to you, it was in perfect condition. And third, what cattle, id never borrowed it. That is kind of my approach to this book. When the constitution was written, just a few blocks from here, is overstated in richards book. Being in york, that is where the articles of confederation were framed and drafted. They do not work. That is why the framers came back to philadelphia. If you read madison and hamilton, they wanted to draft a stronger document. A dison in 51 said this is very different the great difficulty lies in this, we must first enable the to govern, and the other framers n itself. Recognized this. Hamilton wrote about enabling the National Government with force and vigor. Think richard spoke addresses that concern. And maybe deemphasizes the back n that we had to come to philadelphia to have a National Government that had some force. Just more quickly, id rather my other ard, but are stent reactions ch is framing here richards framing here is right historically. We fundamentally changes the country in the 20th century in is entirely appropriate to adopt an embodied in our constitutional tradition. The myriad ways in which our culture different today than they were over 200 years ago. An exceptional form and revise rethink our understanding of the constitution and the government. Along with that, we have the hardest constitution to amend in the world. Which means that constitutional change often have to happen outside of the text. If we do have a constitutional today, i different think that is entirely appropriate, and the pathway to constitutional change that the framers may have envisioned. Finally, we all share certain liberty protecting impulses. In that extent, i think that document protecting out, when i come viewing liberty, not merely economic liberty, but religious beliefs, reproductive freedom, we may be at ces, mark of liberty feud over a 200 year cycle. So, richard, i want you to respond to teds powerful critiques. The aid first of all that framers took a broader view, and also that the government expanded so much, that is a good thing. Classical liberal would strike down let me tell all, you what the vision is. There are few things that had said that i would like to correct. To figure out. Choice of remedies that are not there. I did not say that the text was vague. The word private property does not mean exclusive possession, has always meant exclusive possession plus use. When you start to read these things as vague, what you do is you narrow the definition of property. The can expand the scope of federal government and to create nationwide criteria. Sent essentially wrote on the dangers of mercantilism. It turns out that those sorts dangerous apply today as much as it did then. With a standard reading of the commerce code is always created a situation in which agricultural, labor, the whole system of cartels is there. Wrath against the liberalism is the cartel machine. Circumstances do not today, transportation and communication is better than it is ever been. The movement of goods in and boundary lines original conception that congress could keep the arteries of transfusion communication open, and do more powerful is today. To the situation of the articles of confederation, he is right. The articles of confederation did not have last i did, i and it the constitution said we have a president , we do not have to. That is clear, though sometimes we may want to have a substitution. It turns out, we have judicial power. It turns out, we did not have money wer to tax or raise by debt. You look at article 1 and says that congress has the power to tax, to pay for our debt. This is much broader than no power at all. But the recent decisions, starting in 1937, embrace unlimited power. Paying the debt is paying public debt. Comments defense is a collective good. And the general welfare of the United States did not mean the welfare of individual citizens, it meant the collective welfare of the nation. The whole point of this position is to say that congress cannot take transfer individual to one another. You saying, when you get this from. A commonly comes from the text, and every consistent the rpretation of constitution that factional only be limited by putting realtime limits on the taxes. A changed world . Yes, we do. I want to make very clear is that when i tie this back to the Classical Liberal. , the we were ports that there, i do not think that anyone would want to deny that. But im also saying, the theory is the imated that of perpetual what you have some political conflict, shortterm taxes, special of those things madison the game that called factions. Clear, to make it not a cal liberalism is theory of the world at large, it is a theory that saves you structure human institutions so that when anyone acts within the rules, he can y way that improve himself is improved factional level of social welfare. There is no connection between ern progressivist absolute antithesis. Ted, much of richards response focuses on the limits e clause and the of power, the most controversial parts of his. It e been the claim that if were applied, most of the postnew deal state would be struck down. Richard says in his book the only Justice Thomas of the Supreme Court embraces his view of the Commerce Clause. What would happen if richards view were adopted . Tell us about the Affordable Care act case, which you have a lot about, and all adopted a view. Testament to is a richards view. What we write the Affordable Care act cases, we can discern richard epsteins influence. A reduction of the scope of the Commerce Clause. Is also asked if this richards vision, i would say no, they did not go far enough. They made they said that the which would andate, have made people pay a penalty, paid tax people not have f they do insurance. Somebody to ompel act, and does it regulated in rather than action. They kept the commerce books, but added a cause that the government could only regulate action. Now, i guess one thought often had and is understated in richards book is the notion of political restraint on government power. The government as relentless in its desire to regulate and over regulate, indeed, sometimes it is. Lets take an example from the care case the claim was made that if the government can force you to buy insurance, to buy force you broccoli, maybee even eat broccoli. That was indeed something that came up in our argument. We know that the federal to ernment cannot force you eat broccoli, but their 50 count ments, more if you the seat, that could enact broccoli mandates. Zero broccoli im state g of course about governments we do not have broccoli mandates or anything like it. I think we have to ask ourselves, if we have the conception of the government will always regulate to the maximum of its power, why any broccoli e mandates. I think its answer is in a twoparty system. In the natural ability of imperfectly influenced their legislatures. One of the things i want to make very clear i thought the arguments about broccoli is of the dumbest arguments. Let me see if i can give you a slightly better argument. Key decision on the clause analysis it was said that the United States power to regulate commerce the of t included the Ability Congress to regulate the amount grain that he could speak feed to his cows. My wife said, will you stop teasing me, im not that stupid to believe that. But what she did understand, and i did not explain at the time, it was a perfectly sensible reason for the new dealers. What happened was, they wanted of grain down. Ice what they did was they said you pay this in interstate commerce, you can only sell in domestic commerce. Killed the cartels. The cow rs bought fields. 20 of the grain produced the object to tes can be regulation. If you want to find one program the event immediately terminate, it would be agricultural subsidies. I think ted agrees with that. What was done, it was allowed to go forward. Obamacare at keeps alive. Congress ion is, is always relentless. No, it is not always. It is not bad, just that we want to get rid of the Cartel Facilitation that takes place. Justice roberts opinion is intellectual blunder of the first order. Why . Not just because he is the commonest cause wrong, but the about ing to understand early presence was that you cannot use the Commerce Clause use taxing power, and you couldnt use the taxing power where you use the Commerce Clause. The same they are stuff, and it turns out that if look at these d various types of situations, if did not decidedly regulate under the Commerce Clause, then attacks cause have to follow it. This was developed 100 years ago over child labor tax cases. Deal constitution what happened was in 1918 a key case, a statute was struck down that said you ship interstate commerce by any factories that had violated child labor law. Considers smarter that the business direct regulation of local production, and i will not tolerate it. Right about it. Few dollars by using child labor, but you lose a lot to sell not being able your goods in the market. Congress put at prohibitive tax on the same goods. Now, you cannot sell them in the state commerce because the tax will kill you. They start that down. The you may expand Commerce Clause, but point, but it is very different from broccoli. In fact, the worst enemy of a good Classical Liberal theory is some kind of ingenious conservative argument that starts to take these silly examples and treating them as though they have structural significance. Richard is not shy about telling us his opinion, but i want to drill down on the consequences of his theory. He is not shy in the book. He suggests that proper application of the Classical Liberal constitution might cause problems with the safety laws, health laws, environmental laws. Other administrative agencies. Spell out what you believe the consequences would be, what would have to be struck down. And then we will let richard respond. I think you have pointed the way there, jeff, which is that the vast majority of federal agencies that regulate public health, health, safety, traffic conditions, etc. Are based on this i should say traffic, airlines, perhaps that would be i think we could be, richard and i would agree that we save those. The tsa is ok. The epa would be gone. No. Complicated. I want to hear what would be left of the epa. Agencies like osha and Workplace Safety agencies. Probably the nlrb is gone. But what is interesting, i mean labor is almost gone even without the constitutional i mean union rates in the workforce are at almost a are at a 40 or 50 year low without constitutional change. Your claim about cartels in that context is overstated. Lots of these agricultural price regulations i think would be gone. I am certainly not here to defend the wisdom of the agricultural policy, although i will defend the constitutionality of those things. And interestingly, and i guess it was a question. I will make an assertion. I am not sure, richard, that you would say that major programs like medicare and Social Security, the kind of taxandspend programs, are those still ok . Those are not typically justified under the commerce power. But they do not meet the taxing standard i set out. Ok. I think that some people that subscribe to your views on the Commerce Clause would save medicare and Social Security under the taxandspend power. Yes, but let me answer this in the following way. It is one thing to deal with these things that have been established and in place for 50 years, and you are trying to uproot them. Where i think it is dangerous that you do so. And i talked about this in my book some 30 years ago, i said you cannot do these things because retroactivity, vested property rights, are very important. If you want to amend a program, you cannot do it in a set of circumstances when there are a lot of people if you struck down medicare, there are people with no source of income. That would be a giant mistake. The problem about the transformation is very different than what the original validation of these programs were. One of the reasons why it for obamacare i would want to fight so hard is that this thing will turn out, as it is turning out to be, something of a systematic cala