Teach you the narrative of con law as it’s developed over the past two centuries by looking at the hundred most important cases in really manageable descriptive chunks and there’s more there’s an accompanying online video library on which I think the author’s probably spent more time than writing the actual book these videos are
Enriched by photographs maps audio experts of Supreme Court arguments it’s really a neat thing more importantly this multimedia work is accessible to everyone you don’t have to be a legal scholar or law professor or even a law student high school student home schoolers college students are just generally interested in public I think
You’ll be able to understand it all law students for that matter can read and watch as they prepare for their law school exams instead of binging Netflix you can you know binge josh and randy so anyway here to discuss this ambitious project are the authors Randy Barnett who is the Carmel AK Waterhouse
Professor of legal theory at Georgetown University Law Center and also a senior fellow at Cato Josh Blackman associate professor of law at South Texas College of Law Houston and also an adjunct scholar at Cato and here to comment our Judge Thomas Hardiman of the US Court of
Appeals for the Third Circuit who was on this very stage yesterday to give the annual Beacon assignment lecture at our Constitution Day conference and David Savage the Supreme Court correspondent for the LA Times and also no stranger to this stage but you didn’t come here to
Listen to me read their BIOS and if you’re interested in this multimedia project I’m sure you’re capable of finding their BIOS online anyway so without further ado Randy take it away thanks so much and Elliott for having us and really thanks to Tom and David for agreeing to be
Commentators and putting aside their busy schedule to read the book and and offer their comments on it it’s a great pleasure to be here today I look out and I see a lot of people who are sort of younger students and a lot of people who are older folks and so one
Of the things I’m curious to know from and they take a show of hands is how many lawyers we have in the audience so how many lawyers do we have in the audience how many non lawyers do we have okay good numbers good numbers so this is future and hopefully maybe future
Lawyers but in it the more non lawyers the less you have to dumb down the president well they’re not as corrupted that’s for sure so this is a book primarily for non lawyers it is a book primarily for law students for before as they’re taking constitutional law for college students
Who are interested in the Constitution and might be taking a course on it for high school students for home school students it actually the course the book plus the videos make a homeschool course and it’s also for folks who are not lawyers who are just interested in the
Constitution I know we tracked a lot of those here at Cato two of the programs that Cato has and I take some of the other hands that were in the air that were not the students in raising hands are people who are just interested in the Constitution and that’s this is a
Book for you it’s also a book for lawyers insofar as you may not remember your constitutional law class or you may not have learned some much an ear constitutional law class which is typical of common law classes I have to say because this book takes a different
Approach and I want to describe the approach we take and then Josh is going to talk about the pedagogy of the book something about the called the flipped classroom and I’m going to talk about the canonical approach to learning constitutional law I’m a contracts professor as well as a constitutional
Law professor I have a contracts case book and the contracts my contracts case book is organized around legal doctrine doctrine that’s coming either from the Uniform Commercial Code or it’s coming further Restatement of law contracts or maybe it’s coming from old cases and you learn the rules and then in my view you
Should also you learn the theory that on lies the rules so that you understand why we have the rules we have and that’s the best way of studying contract law constitutional law in the United States is a different animal than that the Supreme Court does make doctrine and
They make doctrine that lower court judges Court of Appeals judges like Tom Hardiman are obligated under the rules of stare decisis to follow but the Supreme Court itself when it comes to making decisions kinda follows its own doctrine when it wants to it changes its doctrine when its wants to it disagrees
About what the doctrine is when it wants to this doctrine is not really driving the Supreme Court what’s driving the Supreme Court our underlying constitutional commitments that the justices have and where do those commitments come from they come from the history or narrative of the United States Constitution and the Supreme
Court itself the Supreme Court is a body that’s been sitting in continuous session for over 200 years its composition changes the Supreme Court remains the same and so there is an overarching narrative that’s provided by the Supreme Court as a court and the characters in that narrative the
Characters in that story are the justices themselves the ones that come the ones that go the ones that make a name for themselves the ones you’ve never heard of but there are there’s another important set of characters in the story of constitutional law and that is the cases which cases not every case
There’s been hundreds and hundreds of cases most of them are obscure deservedly obscure no it’s a very small set a handful of cases which are which constitute what’s called the Canon the constitutional Canon and what is the cannon the cannon are the famous cases the well-known cases famous to lawyers
Famous to every constitutional practitioner not the general public necessary but everyone who practices constitutional law knows these cases they know these cases are the correct cases the correctly decided cases the cases to be emulated the cases to be followed the cases that you want your case if you’re litigating a case like
I’ll it agait to the medical marijuana case you want your cases to be consistent with the canonical cases and you want to paint your opponent’s case as being inconsistent with the canonical cases because that is the intellectual furniture that the justices have in their own heads about how they decide
Cases they want them to work out according to the right cases and then there’s the wrongly decided cases which is also referred to as the anti Canon these are the Canon of cases that are famous for being wrong famous for being wrongly decided these are the cases that
You should not be emulating that if your lawsuit if your theory sort of leads to the result of a anti canonical case or is consistent with the method of an anti canonical case that you’re going to lose that case and you want to paint your opponent’s cases being like that what
Are some of the most famous cases like that Dred Scott Plessy versus Ferguson or even a case like Lochner V New York is in the anti Canon I’m not going to talk much about Lochner only that just the fact that it’s in the anti Canon doesn’t mean I agree that it should be
In the anti Canon I agree the Dred Scott and and for Presley plus he should be in the anti Kant and I disagree that Lochner should be in the anti Canon but it is in the anti Canon and if you’re going to learn constitutional law you
Need to know which cases are which the best most efficient way of learning this is to learn how these cases were decided in historical context as the events unfolded in other words chronologically how did these cases develop which cases rose which cases fall some cases are in
The Canon then they go in the anti Canon or vice versa and the best way to understand this story is to understand it as a story and that’s the story that this book tells it is the overarching narrative of constitutional law the overarching story of constitutional law which consists of the individual stories
Of each of these famous cases and that’s how we’re organized now it does divide the story into two parts part one is the story of the Canon with respect to constitutional structure how the three branches of government separation of powers federalism those cases that’s one story then it has a second story about
Constitutional rights that’s part two and how do those develop it just so happens that in the overarching narrative of constitutional law the structural cases dominate the early part of our history and the right cases dominate the later part of our history so even dividing it in two parts
One in parts to still maintain some degree of overarching chronological narrative but it’s not strictly speaking they’re consistently one continuous story anyway our book provides the most in fact there’s no other book on the market like it no other book that’s been published that’s like it our book
Provides the story of each one of these cases which means the facts of each one of these cases what the court tried to do in each one of these cases and how that case fits into the broader narrative that is the modern practice of constitutional law and with that I’ll
Turn it over to my co-author Josh Blackman the way that this way this project came about was that I invited Josh to be a part of my case book my case book is organized this way I wanted him on the case book because I know he’s an academic promoter and he would figure
Out a way to sell more case books and then he came at me with his and he came out at me with this idea let’s do a video series I thought that was a good idea little did I know how much work it was involved two years of real hard work
Scripting it and filming it and then what it turned out that our work product was just too important to be limited to people who use our case book and that’s when we decided to make a separate volume for everybody else who doesn’t use our case book to both read about it
And to watch it in the series of videos that Josh is about to tell you about and this is one of the rare instances that probably defies my general principle that PowerPoint is unconstitutional at least as applied in 90% of the cases I think this is one of the temporary this
Is powerful non PowerPoint this is this is very good thank you so much it’s a pleasure to be here I see many friends and familiar faces and face I don’t know please afterwards introduce yourselves we’ll be signing copies of the book we also have these book plates assigned you
Can’t get a cup of today we will be happy to sign one if you if you say you’ll buy the book online this project is designed to talk to a different generation of students I see a lot of students here students acquire information friendly today and they did a generation
Ago the traditional model of learning is you get this big thick book at the start of the semester you’re assigned 20 30 pages you come to class and then you talk about what what you read and most of what you read is just drilling out
The basic facts of a case what you read and there’s maybe a little bit of time to actually discuss that model of learning is quickly becoming I think obsolete the newer approach and the approach used in primary and secondary education is what’s called a flipped classroom what
Does that mean you flip the sequence with which you learn rather than having the same repetitive lecture in class you flip that to home that is you watch the basic lecture on your own to get the facts and basic understanding of a case and when you come to class you can
Leapfrog over a lot of that material and get to the core of what teachers do which is help you understand the why the what you can do at home the why is what you do in school and this book is designed it’s geared for the flipped classroom we wrote it for law students
But we kept the language such at college students advanced high school students homeschool students and a wide range of markets can utilize this project and I want to show a brief clip from one of the videos now this is a video that’s very near and dear to Randy’s heart it’s
A case called Gonzalez versus reach Randy argued this case before the Supreme Court in 2005 and it considered whether the federal government can prohibit locally grown marijuana I got your attention right locally grown marijuana and another listing right now the reason why this video series is
Important is we’re able to bring you in to the Supreme Court we have the audio from the Supreme Court oral argument we have the justices talking about the cases in their own words no book we’ll give that to you well we play this clip and I’ll give you some
Commentary afterwards um this is just a two-minute clip I’m play the entire thing the whole thing blends about 50s it already rejected any theory of enumerated powers that lacked a limiting principle during oral argument some of the justices seem open to the market substitute theory Justice David Souter
Suggested that whether or not an activity was economic depends on whether it had an economic effect on the national economy he then equated the economic effect on the interstate market of Angela and Diane’s homegrown marijuana with that of Roscoe filburn homegrown weak if there would be a large market effect it makes
No more sense to call this non-economic than Philbin’s use to this I responded that Lopez and Morrison stood for the proposition that the mere fact that activities may have an economic effect on the market does not make them economic activities to identify whether an activity is economic you have to look
To the activity itself but an economic activity is one that’s associated with sale exchange barter the production of things for sale and exchange barter so for example prostitution is an economic activity marital relations is not any economic activity we could be talking about virtually the same acting we don’t
Say that because there is a market for prostitution that therefore everything that has an effect on the market because it’s substitutes for what can be obtained in the market is itself economic activity after this exchange the justices drop the market substitute conception of economic activity ultimately the court ruled for the
Government by a vote of six to three the for progressive justices were joined by two of the conservative justices from the Lopez and Morrison majority justices Kennedy and Scalia in his majority opinion justice Steve Evans did not adopt the government’s Marcos funny right that’s exactly why we did this the
Supreme Court’s cases are not simple they are not straightforward they include colorful characters fun narratives intricate doctrine complicated precedents and conflicting reasoning and this project distills all that into a fun ten-minute video that a student can watch in the Metro on the way to class and that’s why I wrote this
Book let me briefly walk you through the chronology of these cases there are about a hundred em and they begin with the J Court Chief Justice John J when the authors of the Federalist win the first justices on the court and they decide the case of Chisholm versus
Georgia which you may have never heard of this was one the first major Supreme Court cases about the power of federal courts to hear suits against a state can a state be sued the Marshall Court which I’m sure you’ve all heard of was from Chief Justice John Marshall
Marvis Madison the power of judicial review McCulloch v Maryland the power of Congress regulate interstate commerce and the Necessary and Proper Clause Gibbons B Ogden and Congress regulated boats moving between states and Baron V Baltimore into the Bill of Rights apply to the States we move on to the period before during
And after the Civil War in the Tawney court progressive Pennsylvania involved the Fugitive Slave Act Dred Scott v Sandford the anti canonical case considered whether people of Afghanistan could ever be citizens and ex parte Merriman could the executives then the writ of habeas corpus and lock a person up without any judicial process
Following the Civil War we had the court of Chief Justice salmon chase when in Randy’s icons and he had a court grapple the scope of Congress’s powers for the local activity in DeWitt the court said Congress might regulate the self oil in Hepburn legal tender paper money was declared unconstitutional but a year
Later Knox versus Lee the court said no no paper money is just fine in slaughterhouse and Bradwell the court took this new provision the Constitution the privileges or immunities clause and reduce it to a nullity the weight Court was in the late 1870s and 1880s at case involving civil rights some good some
Not so good strauder said that a jury cannot be segregated and Nicko said that a permits can be not to Asian people in San Francisco but the civil rights cases was a huge decision which said that Congress does not have the power to prevent discrimination in place of public accommodation Congress when I
Tried another civil rights law for nearly a hundred years after that we move on to the progressive here in the early 1900s about the power of both the state and federal government labor conditions in EC Knight and in Lochner the court held that certain labor laws were unconstitutional but in champion
Verses aEM’s and Molli the court upheld various labor laws and of course in the same time with the anti canonical case of Plessy versus Ferguson which upheld a separate but equal doctrine we move on to the white court which sat primarily during World War one we had a number of
Cases involving the rights of free speech could you be punished for criticizing the government in shank and Deb’s and Abrams the answer was yes you can that’s half court in the run-up to World War two had some case involving substantive due process was there a right to raise your own children was it
Right to direct your children’s education Meyer V Nebraska and Pierce these aside if sister said yes then we have a case that’s in very firmly the anti cannon Buffy bell this decision upheld a compulsory sterilization law of so-called imbeciles awful awful decision we move on to the
Era before the New Deal where the court gradually expanded how much power the federal government had in cases like Schechter poultry the court said no no no Congress you cannot regulate the sale of local chickens but in other cases like nlrb versus Jones and Laughlin
Steel and Darby of course it yes you can you can go after local transactions and it was really here that the administrative state exploded this was the turning point during the 1930s move on to World War two with the case at Korematsu also firmly anti cannon which upheld the power of the federal
Government to detain people based solely mother nationality but the biggest changes in the century came during the court known as the Warren Court Chief Justice Earl Warren presiding for barely fifteen years but we had a revolution in constitutional law with civil rights of equality in cases like Brown versus
Board of Education and Cooper against Aaron we have cases involving free exercise of religion with Sherman versus Verner freedom of speech a right to criticise public officials in New York Times versus Sullivan of course Griswold v Connecticut recognized the right to constitutional privacy to have contraceptives and US v
O’Brien said you can burn your draft card but you get in trouble if you do so move on to the burger court which is cited in the 1970s of course the biggest case there was roe v wade the abortion decision but there were also cases involving affirmative action baki
As well as takings of private property in Penn Central the biggest chunk of our book probably a quarter of it was from the latter part of the 20th century the court of Chief Justice William Rehnquist this was he federalism revolution but the power of the state governments to
Regulate what the states are doing the court held in cases like New York versus United States and and prints versus United States that Congress cannot issue directives commands estates and in Lopez and Morrison the court held that a Congress cannot regulate non-economic activity all well and good then we get
To 2005 with Randy’s case Gonzalez versus Rach where the court broaden the scope of what economic activity is it gave Congress a very wide latitude to go after local activity in the same time we’ve Lawrence v Texas which is a right to homosexual sodomy and makalah the FE
C which is rights of free speech and campaign finance and of course a case we know all too well kilo versus city of New London and by the power of the government to take private property for giving it to some wealthy corporation most slightly exaggerating finally move
On to the current court the Roberts Court well we are now start off pretty good with DC V Heller which involved a right to keep them their arms or personal use McDonald you Chicago the right to bear arms against the state but then things go a little bit downhill
Another case Randy 902 L which is NFIB versus Sebelius which upheld the Affordable Care Act US v Windsor which declared the Defense of Marriage Act unconstitutional obergefell V Hodges which recognized the right to same-sex marriage and in most recent cases Fisher versus United States a University of Texas in affirmative action case and
Holmen’s health versus Heller stead which is an abortion decision the canon ends here for now but it will no doubt expand cases come and go our project here was basically download my brain Randy’s brain to a book and then give it to all of you so we got still everything
We know and we hope this we have valuable resources for students professors teachers judges reporters people like bad puns I mean a think-tank scholars and a friends everywhere thank you all so much and I walk more discussion later thank you I just want to add one thing to what
Josh said if you look at the icons that are represent each case you’ll notice there’s a photograph or a graphic this is just a teaser of what the videos are like josh is the one that’s solely responsible for having identified and selected all of these pictures all of
These clips all of these audios it is a Herculean task on his part he and I co-wrote the scripts we both went into the studio we were in the studio for something like 80 hours over two years we went over that we edited but he is the one that’s responsible for
Storyboarding this out and making sure they’re Illustrated and all of those beautiful pictures that you saw just illustrate how each one of those videos has great graphics to show you who the people were and where they were and there’s also a lot of illustrations showing about illustrating the basic
Doctrines thank you so now we know why the picture for NFIB is Josh’s book on the obamacare yes it was unprecedented yes we know that all right okay who wrote the foreword to that book all right it’s on my bookshelf judge okay that’s fine
Well let me say I just want to echo what a number of people said this is a terrific book I recommend it highly it’s it’s quite an achievement to take a hundred cases in and describe them clearly and concisely you know there’s a lot written on a lot of Supreme but they
Have clear concise descriptions of the cases I think they’re chosen well so I’d recommend it to anybody students who are young and not so young if you want to read about the history of the Supreme Court I must say though and going through it like any good work it
Caused me to think and have questions and they don’t go to what they have written about it’s the thought of what the Constitution says and what the Supreme Court has done over time in the index there are three only three cases on executive power and I think that’s
Actually a fairly good representation of what the Supreme Court has done over there so if you had to say which is the greater threat to that democracy to a constitutional government is it a elected House Senate and president who sort of go off the deep end or a
Parliament in Britain and does something really out of line or is it an unchecked executive but if you said how many cases are there in the Supreme Court’s history that have put checks on the executive power there are very few a couple of days ago I happen to be in a car this
Weekend you know the risks of some drone attack in and Saudi Arabia and the president put out a statement that said something like locked and loaded depending on verification now you know what that means he’s threatening what we could use the phrase military action now if you looked
At the Constitution if you’re a close student or not you’d read the Constitution didn’t think wait a minute and the president do that can the President on his own launch some war well I guess the answer is yes the Supreme Court’s never said otherwise and I find that sort of surprising I can
Explain it all years they’ve said there has to be a case in controversy split they’ve stayed away from any they’ve never made any such statement to that effect saying the we would think it was sort of quaint if the president had put out a statement saying you know if the
Evidence comes back and against Iran I may go to Congress and ask for a declaration of war doesn’t that sound sort of old old-fashioned you can’t put that in a tweet yeah it probably wouldn’t fit in a tree can the President on his own spend money for something that Congress has
Refused to appropriate money for I would have thought if you’d read the Constitution the answer is no it says no money show but we saw an interesting demonstration of the contrary this year remember the president wanted some I forget the number eight or seven billion dollars for a border wall the
House said no there was a so-called partial government shutdown at the end of the shutdown they agreed on some deal but it didn’t include the money the president wanted so a few days later he said I’m declaring a national emergency under some mid-90s and I’m going to transfer a couple billion dollars from
The military budget and I’m gonna spend it on the wall I don’t care whether you people in Congress agree with that or not and he did there was a lawsuit brought a judge issued an injunction predictably in Northern California and national injunction saying don’t do that the Ninth Circuit upheld that well a
Couple in mid-july on a Friday night I remember it well and Friday evening in late July the Supreme Court issued a five-to-four order based on an emergency appeal from the Solicitor General no reasoning no majority opinion no dissent saying yes we’re lifting that the the president can go ahead and spend that
Money and that will be the law through the end of for the foreseeable future because their cases are percolating all so anyway I come away thinking wow there are a lot of areas where it’s interesting Britain is going through a version of this same situation right now
You know you would have thought can the Prime Minister shut down the Parliament during a contentious time and sort of seemingly on political basis so he can negotiate it and I think a lot of people in Britain said well you can’t do that but you know we could sit on this side of
The Atlantic saying oh that poor Brits they don’t have a written constitution like we do and and they don’t have a Supreme Court that’s used to deciding cases like that but you know there is some sort of case I’ve been reading about is in the the Supreme Court and I
Don’t know how they’re going to decide it but it seems like they’re going to decide it if the same thing happens on this side of the Atlantic if two weeks from now the president launches a now talking hypotheticals here launches some war in the Mideast and the House
Members the house saying you can’t do that we didn’t authorize this war the president say I’ll go consult I’m gonna do what do you want if they would then bring some sort of lawsuit to try to stop it under a part of the Constitution that says the court can decide
Controversies involving United States we all know the court would say oh you don’t have standing or this is a political question we don’t decide that so anyway I came away thinking this book is a very good clear concise view of what the Supreme Court has done over time on deciding cases among the
Constitution but I also say when I come to read it I think wow there are whole aspects of the Constitution where I’m not confident the Supreme Court has done a very good job of enforcing and interpreting what the Constitution actually says also a paucity of third amendment cases I’m sure president Trump
Would love to be able to prorogue Congress but how do you how do we define executive power though that in your view that doesn’t include executive branch agencies well I’m I’m doing a lot of cases in there that involve executive power I don’t deal with what the president himself says I’m only relying
On I mean they talk about Youngstown she you know the great constitutional cases but you go yeah we covered no canning which is sort of an executive power but we see executor would be horrible to not see sort of delegated power from these from Congress the executive branch to
Regulates us what about Chevron is that intentional omission well let me talk about this I mean if you know what one of the difficulties at any time you say you know the hundred dress movies of all time or the hundred cases you should know you run the risk of
Having a lot of smart people say oh they left out these 17 cases before you answer let me just have mentioned this earlier I’m not setting my fantasy football lineup here I’m checking the hashtag Cato SCOTUS so any of you watching this on livestream again the multimedia up to date you know new
Student kind of era or for that matter any of you in the auditorium you’re welcome to tweet questions at me just use hashtag or comments use hashtag Cato SCOTUS anyway you know judges ask questions that’s what they do so I will answer his question he has to ask questions see the question your
Honor we had a very tough time picking cases now let me tell you something we did not start out thinking what are the 100 cases that wasn’t our plan at all we easily put a list together of case we thought that were worth studying and at
The end we had 103 it was completely accidental ow a great book will be 100 cases so I sort of call the list a little bit but we excluded stuff what do we exclude nothing in Criminal Procedure we do the fourth fifth or sixth amendments Miranda Terry V Ohio these
Sorts of very significant cases we just did not include we did include stuff in the federal courts of jurisdiction which is very significant rank in the federal courts actually here a case we dabble a little bit we didn’t talk about things like a dormant Commerce Clause which is very important the contracts clause
Which was very significant the early years the Republic we didn’t do death penalty Eighth Amendment cases or cruel and usual punishment we didn’t do voting rights cases which are also very significant there were a lot of topics we just did not cover altogether this is only meant to be as the title indicates
And introduction the constitutional law but we tried to pick the case if you read these 100 you will now be fluent in just about any conversation of common law the other thing I should add is that as I’ve said in the beginning the origin of this project was in my case book and
Now it’s Josh in my case book this is a Kaiser case books that are used to teach constitutional law at Georgetown we have divided up the constitutional law classes between con law one which is structure con law 2 which is rights in the case book like that and then the casebook decision
Of what to cover in the casebook is based on what you can realistically cover in a one semester con law one class what you can realistically cover in one semester con law two class and so that requires making hard choices and there are certain topics that are just
Not taught in your basic constitutional law class almost anywhere like Criminal Procedure is taught in a separate class federal courts is taught in a separate class so because they’re not covered by the casebook they’re not they don’t they’re not covered by our videos either although there are things in the case
Book like the dormant commerce clause that are covered in the case book and are not covered in this book partly on the grounds that it it it gets very technical and we really do mean this to be accessible to a broader audience and that just seemed like it was just a
Little too much for a book like this well I think the accessibility is perhaps its chief virtue among the many virtues of the book and I have to reluctantly agree with what Josh said about the multimedia presentation I’m dating myself but when I learned in college we were taught in our great
Books program that you’re not going to read Plato on Homer you’re gonna read Homer you’re not going to read Aristotle on Plato you’re going to read Aristotle and so on and so forth the the the method was insistent upon reading the most important things that had ever been
Written by taking the authors at face value primary sources and I still feel that way about law you know you shouldn’t read a 20th century legal scholar on Blackstone you should you know it’s available you know got it my chambers read Blackstone I feel the same way about Supreme Court decisions and
When I teach advanced constitutional law I forced my students to read every word of every case that we study that includes concurrences and dissents well I have the luxury of doing that because I teach a third-year seminar as anybody who’s been to law school knows there is so much packed into that
Curriculum that at some level it’s it’s a survey course and the case books themselves no matter whether they have 800 or 1,200 single spaced pages there’s a lot missing in those case books there are ellipses everywhere and I remember reading you know you read marbie review mattes and you’re all excited you think
Wow this is great they only give you a tiny sliver of the case because you have to get through the material so when I took a look at this book the thing that was most striking to me was if you have any intellectual curiosity at all about the law or the
Constitution or American history this is incredibly accessible and I think will provoke most people who are curious in any of those areas not just constitutional law to delve more deeply and you know it’s simply I’ve we have three children one of them’s here today and I’ve seen firsthand they do learn
Differently this generation learns differently and these videos I got to watch many of them these videos are going to draw people in I mean it drew me in and I’m over 50 so I can only imagine how it’s going to draw in really thoughtful high school students and college students and
And that’s for those of us who care deeply about the Constitution who work with the Constitution every day anything that gets the public more engaged with the Constitution is a wonderful thing my question you both of you sort of chose not to criticize the court’s decision
You you report them you explain them but you don’t directly say this doesn’t make a lot of sense it’s you just read my mind I wish I had just raised my hand to say something about that because this is a book that we would like law professors
Who disagree with us to recommend that their students use and in fact we have endorsements for men many prominent left-of-centre law professors for the book and a foreword by Dean Erwin Chemerinsky of Bald Hall School of Law wrote the foreword for the book we really wanted to be fair and
Accurate so that they couldn’t believe that we hid the ball or that we skewed the cases anyway having said that as Michael dwarfed in his comment his blurb says we do introduce our views at junctures about where we think the court is in internally inconsistent or whether
What they said in this case doesn’t quite line up with what they said in the previous case and so we don’t typically criticize the court for failing to be originalist I mean there’s we do have some videos which cover the original meaning of the privilege immunities clause briefly so this is not an
Originalist book so we don’t really make that criticism that they got it wrong but we do make criticisms about how their reasoning may not cohere or why the dissent might have the better of the argument you you you will get somewhat of our perspective through the best maybe especially through the videos as
Opposed to the book but it is there it’s just it has to be muted in a way that will not put off people who have different views than we do well I thought your comments on the Reg case were very mooted because it was your
Case and I thought he should win and he lost I remember the argument the court had said in 1995 that in the Lopez case that mere gun possession in a school zone was not commerce you know there was some federal law of guns that they said it’s
Just gun possession it’s not buying it’s a mere gun possession is not commerce well then Randy has a case where a sick woman living in California grows marijuana in her backyard or in another patient who’s given to and medical marijuana is legal in California so how is it that backyard homegrown marijuana
Is commerce and either Randy brought that case the supreme court I thought what that’s a good case you ought to win and he lost that some of the justices including Justice Scalia and Kennedy who were gun possession was not commerce found a way to say that marijuana in your
Backyard is commerce even though everybody agreed she didn’t buy it she didn’t sell it it wasn’t going on any market and then flipped forward to their famous case the healthcare case I would have thought wow I would thought that regulating insurance saying you have to provide whatever it is in regard
Pre-existing say what sure sounded like commerce now I realized there was a mandate question but the Supreme Court said gun possession is not commerce backyard marijuana is commerce regulating health care for them were willing I guess five of them said no no that’s not commerce and I would have
Thought that’s an interesting collection of views on what is and is not commerce but then we explained the reasoning of the court that distinguishes those three cases from each other there’s one other point I want to make that that that David’s question brings up and that is
In the Rach case we you saw on the screen that we got three votes on behalf of the users of medical marijuana who were our three votes conservative Chief Justice Rehnquist conservative Clarence Thomas and conservative Sandra Day O’Connor those were our three votes lost Justice Scalia we lost Justice Kennedy
But who which votes did we not ever even have a chance of getting it was the progressive justices on the court the left side of the court now you would think if you were a kind of unsophisticated legal realist who thinks that judges just act politically to get
The results that they like you would think that the left side of the court would like the results it’s a marijuana case it’s out of California it’s a Ninth Circuit case it had we had sympathetic parties we had sick women and we were arguing pretty much on behalf of other
Sick people who cancer patients who were taking chemotherapy you we had all the facts that we would want to appeal to the left side of the court and yet we never had a shot think David will agree we never had a shot at the left side of the court this
Is a book about why that’s true and it was because Ginsberg is I guess the little guy this is this this is this is a book about how these justices operate with a larger picture in their heads a larger narrative and where they fit into the narrative and our case did not
Fit into the progressive narrative of broad federal power that was going to be constrained only by enumerated rights or by a suspect classification or something like that we didn’t fit into the picture of the Constitution they carried in their head and they put their commitment to constitutional principle their
Constitutional principles ahead of their compassion for the sick and the dying this is what I do by the way which at some level you kind of have to admire that they put their principle commitments ahead of their compassion but this is a book to understand how that’s be and how Supreme Court
Litigators know this is the case before they go into court they know who they can have a shot at and who they don’t it’s the story the justices carry in their heads that explains this not the doctrine let me play another brief clip we develop a timeline to illustrate how
The through courts doctrines fluctuated long lines David so let me play this clip for a few second and has not spoken let’s conclude by returning to our brief history of implied powers Lopez and Morrison represented an effort Lopez was the gun case that David mentioned or to
Put the brakes on any further expansion of New Deal and Warren court doctrines governing implied federal powers now Congress could only regulate intrastate activity having a substantial effect on Interstate Commerce if the activity was economic in nature then in Raich rate was the marijuana case Randy did by allowing Congress to reach even
Non-economic activity as part of a broader regulatory scheme the court seemed to allow Congress to go beyond the high watermark established by the New Deal court in Wickard so here we put basically 80 years of Supreme Court precedent a single graphic however in NFIB versus Sebelius to court that’s the Obamacare case was
Not willing to extend Congress’s powers beyond the regulation of economic and non-economic activity to the regulation of inactivity this was not a repudiation of the New Deal rather the Chief Justice stuck with the Rehnquist court stance of this far and no farther without a judicially administrable limiting
Principle in other words the court would not go beyond the line it had drawn in Wickard and then extended in Raich so this graphic shows in basically one sentence answer to David’s question right how do you reconcile 80 odd years of precedent on implied federal powers
Why guns yes marijuana no why yes to a health care but not too hot we tried to synthesize a very complicated story that we take for granted in a way that anyone and you want to mean that you can get this invest 10 minutes watch this video
Can I make one more point yeah the way we were able to successfully formulate our health care challenge on Commerce Clause and necessary improper Clause grounds depended on our understanding of what the Supreme Court had really said and what there’s a difference between what the Supreme Court has really said
About a lot of things and what law professors say they said and how law professors teach that subject I believe that lower courts are bound by what the Supreme Court has said but I think they’re only bound by what the Supreme Court has actually said they’re not bound by what law professors have
Extrapolated from what the Supreme Court has said to some greater principle and as though I emphasis four primary sources right so and I think that’s absolutely right so this is what’s a good you you’ve got something in mind what’s a good example of that Randy for the audience’s where law professors will
Take some broad principle and assert that it’s the law even though it’s sort of an extract so for example they will say that the New Deal basically said that Congress has a plenary power to regulate anything that in Congress’s opinion represents a national problem at particularly when it comes to the
Economy and in fact that was a theory that it was on offer at the time that Wickard verse philburn was decided and there was an internal debate which our book in the case book discusses there was an internal debate as to whether the court should be candid and accept that
Proposition and at the end of the day they couldn’t bite the bullet and do that so they never said what that they never announced that Congress has a plenary power unreviewable by the courts to regulate the national economy they never said that now law professors have interpreted what they did as though they
Had said that so when you hit a case like NFIB versus Sebelius you would say well Congress is regulating the national economy they have a plenary power to regulate the national economy and therefore this is an easy case well it’s not an easy case if you go by what they
Actually said and the same thing was true this is how the Rehnquist court went this established of this far and no farther line in Lopez and Morris and they said look in the past we have never allowed Congress to reach inside a state and regulate wholly intrastate activity
If that activity is non-economic now the truth is that the court had never previously made a distinction between economic and non-economic but they had also not said and you can regulate everything and what Rehnquist Court did is they look back and they said if we look at all the cases we’ve decided we
Never went that far and now we’re not going to go that far unless you can do so without when provide us with a limiting principle so in order to litigate you sometimes need to focus on what the Supreme Court has really said even if it’s wrong as opposed to what
The law professors would like them to have said and I would urge lower court justices judges to do the same that is they’re bound by stare decisis but they’re not bound by like to draw an extrapolation from what the court has said often to the neverland never never
Lands about what the government may or may not do there’s they should be they should stick with the ratio decidendi of actual cases absolutely in and we I’d like to think we do that I know I try to do that every day we have a lot of moments in conference when the three
Judges on the panel on our court are conferencing cases and we’ll talk about the case at hand and a judge will make a point along the lines Rainey just discussed and another judge in the commerce say that’s the next case and that’s really an important self-limiting principle on
Judicial power is to make sure you’re deciding the case or controversy in front of you not deciding the next case it’s not always honored but I think it’s an important principle I want to add one other thing in response to David’s question and Randy’s comment and this
Comes up a lot when I teach my class the answer I think to David’s question as to how this happens is the facts matter and I was glad to see of a Norden he Perry and McCreary County versus ACLU these are two ten commandments cases decided
On the same day in one case the ten commandments is okay on the state capitol grounds in Austin Texas but ten commandments display inside the McCreary County Courthouse was invalidated and of course my students look at that say well what’s going on here how can they how
Can this be well the short answer is Justice Breyer went one way in one case and the other end the other longer answer is the facts matter and there was an extensive record in the McCreary County case about a back and forth between the government trying to make this display constitutional even after
They had a lot of comments that could be deemed proselytizing whereas that was a different record it’s let other people to in a you know somewhat an uncharitable way to say well that’s the inside-outside rule as long as it’s outside the commandments are okay if they’re indoors they’re not okay I think
It has to be old and outside well that’s the well we’ve got a yeah a new doctrine now with the Bladensburg cross case because that was the first outside well that’s an outside display that was also okay but the rationale of the Supreme Court in that case made clear that it’s
Not an outside inside thing it’s age longevity has something to do with it but I think this this book and the the videos when you tell the stories about the people involved highlights the principle that I make to my students again and again which is the facts matter when you tell these sorts
But they don’t always matter as Randi just said because sometimes if we assume I don’t know I didn’t I wasn’t involved in the case but if we assume that Rache was the sympathetic party the facts didn’t matter enough to break through that principle that Randi just articulated was more important to the
Justices that rule against Randy’s case but in many many other cases the facts matter enough that you see some significant doctrinal shift or perhaps an even contradiction from where the court was heading I’m glad you included both of those cases I’m glad you struggled a little
Bit judge to explain it to your students because I remember that I was doing a radio program for NPR that that year and I remember I went down and there were court was hearing two arguments on the ten commandments so I was on for about ten minutes to talk about the you know
The courts hearing these cases to decide can you have the Ten Commandments monuments on public land or does that violate the First Amendment so then I was invited to come back and late June the day they decided the case and and the moderator says wait a minute there
Are two cases and then one says this and one says that and and I had about five minutes to try to explain well yes you know did you know that it was entirely Justice Breyer and he had this view it’s not a it’s it’s a fairly smart view that
Court just used it in this Maryland case a couple months ago which is if some County officials are trying to make a public statement by putting up these religious symbols instead of making it a big deal that that seems like it’s the government making a public statement about religion and we shouldn’t allow
That but in the case this monument granite monument had been sitting on the grounds of the Texas State Capitol for more than forty years I think almost no one even knew that was there there were like 20 or 25 other more and some homeless guy brought this lawsuit saying
He was offended by this 10 commit and and in that case but I think Breyer was quite right to say do we really want to tear up on county courthouses all around the country to tear up old monuments or cover over Moses of if he’s painted on some Europe that it was a
Correct correct view that as a matter of judgment and the facts we shouldn’t do it but as a matter of pure legal legal doctrine it wasn’t very easy to explain I was a seminar in Pittsburgh before that case was decided and we had a lot of really smart lawyers from Pittsburgh
In the room and every single lawyer at that seminar thought both cases were gonna come out the same way no one was quite sure which way there’s only one lawyer that predicted they would come out differently and that lawyer predicted correctly and that was the only lawyer in the room who had argued
Cases in the Supreme Court one other thing is that if justice Thomas’s interpretation of the Establishment Clause is correct then none of these cases are rightly decided because the Establishment Clause did not actually protect an individual right which would then be one of the privileges or immunities of citizens protected by the
Fourteenth Amendment or properly incorporated under modern doctrine into the Due Process Clause and therefore there’s there should be a Free Exercise claims that could be the Supreme Court in lower courts could here but not any Establishment Clause came so so this whole area of law that we’ve been
Talking about would probably not exist if justice Thomas’s interpretation of the original meaning of the Establishment Clause is right and that just shows that that’s not what our book is about our book our book is our book is about Anna Kiel also thinks that Akhil amar does our book is about what
Has the Supreme Court done what is constitutional law in this country not whether it’s all correctly decided as compared with the actual original meaning of the text of the Constitution and I’m not saying that Justice Thomas or Akhil amar are right about the Establishment Clause but they have a
Very powerful argument and if they are right then none of the stuff we’ve just been debating really ought to be in the federal courts at all and of course Gorsuch in the cross case said that there’s an issue with standing just because you’re an offended observer you
Should be able to bear it offended it’s all that triggers people don’t swear defended it’s very very inconsiderate David before I open it up I got I did two audience questions and further two in that regard I did get a question over Twitter from Trevor Burrus the editor of
The Supreme Court review who’s upstairs editing a brief but he asked an interesting question so we heard that at some point y’all got to 103 cases and I guess I only had to chop three but whether in that process or otherwise what cases did you two have the biggest disagreement
Over about including or excluding yeah we just read about a lot but we didn’t we didn’t we didn’t disagree about that if you didn’t amend the question say what did you disagree about most and in general in the process of creating lists Randy you go first
Well we wrangled a lot about the scripts so Josh would do the first draft of the scripts and he basically based the first draft on the text of the case book which I had written over the years but there were times in which his understanding of what he thought these cases were doing
Is different than my understanding and we went back and forth we were not in the same room we were doing this all by email or by exchanging texts like you know documents and we had some very long discussions where I tried to convince him that he was interpreting these cases
Incorrectly and I won most of those in it so it was sort of like a little seminar between him and me but one private seminar I didn’t win all of them I my consciousness was raised on some matters that I hadn’t been familiar with but that I think that was the major and
It took a lot I mean so this was a this used up two summers which I had actually planned to spend on other projects dealing with these scripts and then going into the into the studio and then when we happen as a result of having gone back and forth this much sometimes
The scripts that we loaded up onto the teleprompter once we got him up there and we started reading them out loud we noticed wait a second that’s not right we sort of let some fact get by or we have the parties reversed or something and so we were trying to rewrite them on
This prompter and maybe disagree disagreed about things like that so there was a lot of that I have to give Randy credit his name comes first in the book so I consider him the senior author without question but he listens if I didn’t agree he never shut me down and we had a
Lot of long debates around that inclusion right what to include and what exclude and this is David’s format concision how concise was it you know this book is three hundred and thirty something pages that was not easy some of our first drafts of scripts were
Twice as long what do you cut what are you not that this is the great books in Reverse right how do you how do you distill down one substantive point we do disagree on it’s a police power we have a long debate if you notice whenever the
Police power is the idea that the state has the authority to enact laws to promote the health welfare safety in public morals of the people and if you ever notice in our book where police power always has or an alleged before it or purported or some sort of like it’s
The state’s claim to have this powers always these hedging languages and that’s one thing that that you look where we disagree is about the public morals part of it not the health and safety part of it so that it’s health safety and they also are alleged to have
A power over the public morals there are little hedges if you read careful of will you see some schisms but they’re they’re very deeply did you consider Shelby County versus holder the Voting Rights well we have in our case book katha mechanism organ which was a related case I’m voting rights we did
Not do Shelby County the Voting Rights area is just it’s just so many other doctrines we just maybe one of the things you have to realize David is that with respect to certain topics this is true of teaching the material in class as well as this as soon as you raise it
You’re really if you’re in for a penny then you’re in for a pound and so if you’re not prepared because you don’t have the space or time in class let’s say to go in all the way then you really have to avoid it altogether I thought
That was odd as a matter of the courts reasoning Congress in 2006 in a rare thing for the Congress in our era almost unanimously reauthorized the Voting Rights Act was a unanimous vote in the Senate almost unanimous in the house to reauthorize the Voting Rights Act with this special provision that in these
Southern states is this sort of preclearance remedy that is to stop cities counties or States from making sudden changes in their election laws that would have an effect on minorities the Supreme Court took it up and struck it down and Chief Justice Roberts said it violates the the equal
State sovereignty going there is no equal state sovereignty rule in the Constitution this was passed under the Fifteenth Amendment which at that time there were Union troops in the southern states so there was no assumption of equal state sovereignty there was the assumption that the federal government
Sometimes was needed to – and so I thought wow it was a big decision and I thought it’s very hard to see where did that principle come from yeah well some of the state sovereignty principles come from the fact that we are in a post New Deal world where Congress is given a
Huge amount of power they don’t quite have as much power as law professors say they have or at least the court hasn’t ratified a power on national problems power but they effectively exercised something close to a national problems power and then instead of limiting their powers there the court has restricted
Their powers by means of either identifying fundamental rights or by identifying suspect classifications the fundamental rights under the Due Process Clause suspect classifications under the Equal Protection Clause so yeah they can do whatever they want but they can’t do this and they can’t do that as opposed to saying they can’t do
Everything they want so Lopez for example the gun-free school zone act was invalidated because it went too far under the Commerce Clause because of that you never had to reach whether it violated the Second Amendment but most of when you when you give Congress an unlimited power
You then have to carve out exceptions so what happened after the New Deal in the Rehnquist Court is they started carving out an exception for states like they had carved out for suspect classifications and like they had carved out for fundamental rights why because if Congress really can regulate anything
That’s economic states are engaged in lots of activities that are economic they’re no different than companies when it comes to that so state Congress can regulate states and if Congress can regulate States then what happens to federalism well because federalism is a first principle then we have to we’re not
Going to repudiate the New Deal framework but because federalism first principle within the New Deal framer we’re gonna treat states like we treat suspect classifications we’re gonna treat States like we treat fundamental rights because they’re special they have special immunities sovereign immunities which I agree with
You is not in the Constitution but it’s a way of trying to in a world of second best bringing the outcomes of cases in this case federalism back into the picture without repudiating everything that the New Deal array actually repudiating anything that the New Deal actually did the court really wrestled
With that though because National League of Cities was decided and it didn’t last very long before Garcia overruled it so there’s a there’s a lack of clarity in that area that’s yet that’s the other black minute well I mean it’s also the Fifteenth Amendment right section to Congress shall have power to enforce
This article by appropriate legislation what does appropriate mean you can read lots of things into that all right let’s open it up to audience questions please wait for the microphone say your name and affiliation and actually ask a question right there fourth row thank you I’m Leon Weintraub
I’m not a lawyer but I am a retired member of a diplomatic service like to get back to the theoretical issue of whether the president might initiate a few missile strikes against Iran I’m wondering if in light of the congressional authorization for the use of military force if that could be
Considerably as I understand it that justifies a lot of what we’re doing in Afghanistan and elsewhere so they say could that if you want to follow that could that be used to to justify some perhaps some smaller strikes against Iran and is the AUMF completely stretched beyond recognizing the
Right of Congress to declare war well without commenting on the AUMF authorization for use of military force let me make a general observation about executive power of the kind that David was just mentioning in during this administration more than the previous one you have a lot of press attention to and
Political attention to decisions that have been made by the president president Trump and whether he has except exceeded his executive authority and in in this area in a lot of other areas and when the press ever comes to me when one of these stories breaks and it just happens he proposes something by
A tweet or something actually happens mostly it’s the tweet they come to me and they say well does the president have the power to do this under the Constitution and or is it illegal and not only the Constitution but is this does the other power to do it I said
Look you first of all I need to know what statute is he invoking that gave him discretion to do X Y & Z because you know what there are 10 tons and tons of statutes on the book that gives the president discretion to this and discretion to that trade policy you know
The stuff that he’s doing about you know same companies shall not do this or do that is that can he do that I don’t know tell me what the trade authority to tell me what trade authority he has what Congress what does Congress given him by way of discretionary power and you’re
Almost always going to find that there is a statute and that the president has act and it has actually invoked that statute now there maybe should never have been such a statute but those statutes were hunky-dory when a different president when different presidents were in power than when this
President is in power and as soon as this president gets in power and he uses the discretion that he’s been given by Congress all of a sudden this seems unconstitutional to people it may be unconstitutional but it may not be illegal depending on whether the discretion given by these myriad
Statutes that I just and so I can never answer the prayer reporters question I don’t go on the record because I say first I need to know what the statutes are usually that’s going to come several days later when we find out what statutes have been a vote and then we’ll
Look at those statutes now Josh unlike me on certain issues has actually gone through the statutes to see if the president has this Authority or that I typically just move on to the next story live tweets the statute right so you have what you want to say something about that I will
Starting the 1930s Congress basic gave away the house they said we will give the president whatever thority he wants you not to do it and this was the rise of the modern administrative state now that’s great when the president’s someone you like and when the president something you don’t like it’s not so
Great and we’ve seen the last couple years this this never-ending stream where the presence relied on statutes that are very broad and court said no no you can’t do this in the travel ban litigation for example this was about whether President had the statutory authority to deny entry to certain
Aliens from your Muslim countries this was a terrible policy but Congress has given some pretty big powers a judge in the Fourth Circuit actually wrote in an opinion that the president’s action would violate the non delegation doctrine right that the president is actually exercising legislative powers I
Can’t imagine any federal judge a low court judge least finally violations a non delegation doctrine but now they did because of the current situation we have now my hope is that if any principles endure it’s at some future president will allow Congress to scale back the powers given but I’m optimistic
Whether it’s Elizabeth Warren and Bernie Sanders or Andrew gang wherever it happens to be the gang gang’s going to keep the executor in place and you actually don’t see Democrats who are in opposition to this president really proposing scaling back presidential power they really do want to go to the
Microphones and criticize this that or the other thing and even call things illegal and call things unconstitutional but there’s never any serious proposal to revisit any of these statutory grants of discretion to the president because they’re going to want to use it when they get around to holding office yeah
Right here in the front row and then we’ll go to the third row middle Richard Coleman and retired from Customs and Border Protection citizens united the right to bribe anonymously how does how do we square that with any interpretation of free speech I don’t think that’s an accurate
Characterization at all first off the court didn’t get rid of disclosure requirements only just as Thomas would have so Citizens United upheld the right of Congress to for school to disclose also the word bribe there is a distinction between contributing to a campaign versus an in appendix Bennett
Or the court said that limitations can be made on contributions so I you know I don’t know that that’s an accurate characterization and the facts of citizen united was that a non-profit corporation which is why it made a court B it was a corporation random movie critical of Hillary Clinton that it
Wanted to run during the election and under the Federal Election Commission rules or the or the statute this was barred because it’s within 60 days of a camp of an election they could not run a video movie that they’d made that was critical of a presidential nomination
Their identity was known the video was known and then it was a question of whether they had a free speech right to run that video in a political campaign and so I don’t think or I the word bribe under no circumstances could be applied to the actual facts of that case which
Is why judge Hartman says facts matter thank you little the third row as I said and then we’re gonna go to the edge of the fifth row thank you my name is Andy Hawkes I’m an unaffiliated attorney could you discuss how a case becomes canonical as opposed to anti canonical because it
Seems to me the jury’s still out on a lot of the cases you’ve included that’s true and and and there are cases that are canonical they’re not depending on which political view you have so you would say Roe versus Wade for example which is a big case it’s sacrosanct for
One side and it’s an ESMA for the enigmatic for the other side so that in other words its status is still being contested so it’s not a super-duper precedent well that’s SuperDuper press it’s an inside joke some people have argued that there are precedents that are so important that they can never be
Reversed and that’s just a way of just putting a thumb on the scale for the precedents that those people happen to like I think it’s a it’s a good question and that is that the supreme the truth subtitle of the kit of the kit of the book is 100 Supreme Court’s cases
Everyone should know it isn’t 100 canonical cases it does use the canonical case approach by saying one of the reasons why you should know most of these cases is they’re considered canonical but not every case that we talk about is actually considered canonical and the direct answer to
Question is this is a sociological group based phenomenon it’s just a matter of attitude and attitudes can change so for example Lochner is considered anti canonical it has been taught as anti canonical this is the bakeshop case that was decided by the Supreme Court protecting Liberty of contract it was
Considered anti canonical by by progressives and it was considered anti canonical by many conservatives and I think it’s it’s it shouldn’t be I think it’s actually a great case and it was well decided the way it should have been decided and if properly understood but I can’t deny that both left and right
Think that it’s a bad case that you should not emulate hi my name is Zoe Smith I’m a student at American you did good in describing the court cases brought before the present panel you say that they started strong with cases regarding the Second Amendment and then
Went downhill when it came to cases such as obergefell V Hodges why is that and what indicates the transition from up to down oh I wasn’t mentioning a vertical to downhill I meant the more Obamacare cases the downhill he said but he said it that way yeah and I noticed that he
Said it that way when he said it this is the kind of thing that we sometimes this is this is what would happen in the studio if something like that would happen I would say hey wait a second you can’t say it that way yeah I was modest
Very astute I also had John Roberts Chief Justice Roberts on the scene in what two thousand five or six as it’s like this this Oracle of the law who had become this this neutral magistrate and we just we revered him with it with his piercing blue eyes and
His ability to just bat away he questioned the confirmation hearing we had Heller and McDonald which were I think positive developments nearly Roberts court then we a cases like the Obama care decision where John Roberts showed his colors and I didn’t liked him very much and then we have more recently
Chief Justice decision in the census case where I don’t know quite what to make of it but it’s very hard to square part one in part to his opinion there’s another Obamacare case coming up and I don’t know what John Roberts will do there but that that’s well as your
Frank’s but thank you for the question yeah I’m glad you were it shows you were paying attention very good thank you John Roberts is a good idea a good guy except for the Obama care line of cases because I think what that means well no
I mean I don’t I don’t know if I’ve ever asked you Josh what you actually think of a burger fell but I think he was wrong there too you know I don’t have a partially invoking Lochner derisive lease Evans I think the Roberts ascent
In a burger fella is a bit over the top a bit no Iife over the top I think and this is actually a good way to illustrate it in a burger fell Robert wrote this dissent where he basically compared gay marriage in Hobart FL slavery and Dred Scott and economic
Liberty in Lochner and those cases have virtually nothing in common and I think his ability to pair slavery with gay marriage was done for rhetorical effect say here we have this case which everyone thinks is evil ergo gay marriage is evil and I think that that’s a announcer that doesn’t
Really hold up but it’s a that opinion is a perfect example of how the canonical cases approach works in practice which is here are these terrible cases Dred Scott and he thinks also Lochner which he thinking I think he mentions by name like 16 times that
Are 14 times in this opinion and 17 times in this opinion so these are the anti canonical cases this case is like those cases therefore this case is bad as though the just by invoking the anti canonical case is that’s your argument it was that was now it’s not quite fair because there’s
There is an argument there but it’s almost a ritual incantation of anti canonical case anti canonical case and you’re just like that just shows how that’s how con law lawyers and judges think Justice Breyer will often say it locked during free speech cases he thinks that laws that use the freedom of
Speech to go after various economic regulations are just Lochner embodied so Breyer uses locked in quite a bit as well you’ll see that but thank you for the question go up there David Ralston retired Department defense I assume there have been no emoluments cases but
If there were one would it apply only to the President or to his family our law firm or whatever how could you say a word about that well you just happen to have one of the experts on the amalgams clause on the panel and it said it’s not me I noticed
There were no emoluments cases in your okay well okay the question was but the foreign emoluments was there actually two volumes clauses a domestic one president Rhee there’s also the the relevant here the third to make it more complicated for me the Saxby fix yeah it’s actually fix with hillary right she
Was unconstitutional yeah there was one that says that the president and so it was a lot easier to be on panels when Roger was moderating them when Manila is mutters Roger didn’t throw in a lot of these little asides that would that distract us from our answer but they
Make it more entertaining does anybody think this is more entertaining okay the short answer is that the courts have not ruled on who is covered by the foreign emoluments clause I have filed the number of amicus briefs in various courts on behalf of Professor seth barrett tilman in ireland and we’ve
Taken the position that the foreign emoluments clause the language only covers appointed officials and not elected officials this is a position that’s consistent the practices of George Washington who accepted many gifts from abroad without going to Congress for consent first one federal Maryland has disagreed with us and said
That we’re wrong we disagree with him and so she’ll be litigated I am doubtful the supreme court ever actually takes in a Molly moon’s Clause case on the merits if they take it at all they can probably dump it on various jurisdictional grounds we might not be standing or
That’d be a cause of action so I don’t know that we’ll ever actually get a court to endorse our theory but Seth and I spent a lot of time on this exact topic and we’re we’re pleased and it’s you know they got a Seth got a lot of
Pushback from law professors and and who thought that he was kind of you know making things up and saying things on that were unfounded and he’s really they had to back off their the the they had to back there’s just like the when they criticized the Affordable Care Act cause
Of action is frivolous at the end of the day it was not you may have been wrong but it was certainly not frivolous and and the same thing is true with with Seth Seth’s arguments yeah they apologized and the historians withdrew their claim against us they apologized
So I think I’m in good shape that’s a point I tried to make earlier I don’t know whether josh is right or wrong it and I but I would like to Supreme Court this is a part of the Constitution it hasn’t been invoked but it’s sort of an
Issue now but I do think it’s correct to say that if the case gets into the court the Supreme Court will say oh you don’t have any standing to object or you know nobody has and so they will not decide it so in other words it’s an another
It’s an important provision in the Constitution that the Supreme Court will say nothing about to either clarify what’s the reach of the monists clause and who’s covered I think that’s an unfortunate development way back where the court has chairs we’re only going to decide cases and then there’s all the
Rules of standing all the lawyers would know this but for the non lawyers you’d think well how could they not decide those questions because it’s all they’ve got a bunch of jurisdictions that allow them not to decide big constitutional controversies the name of my first monograph on the Constitution was called
Restoring the lost Constitution it was not about restoring pre 1937 constitutional law it was about restoring all the parts of the Constitution that are non-operative anymore because through one device or another the court has rendered those clauses irrelevant and inoperative all and that’s reason why you can’t go into court and argue
The ninth amendment you can’t go into court and argue the privileges or immunities clause you didn’t used to be able to go into court and argue the Second Amendment there were all these clauses that are lost and restoring the lost Constitution means restoring the whole Constitution as it was originally
Designed I’m gonna play a video in the background we actually graphically represented Randy’s book about restoring the holes in the Constitution good so they actually are chunks missing of the Constitution and we bring back [Applause] That’s that’s that’s Randy’s vision Roger has a question this is a question for you Josh when you were up there trying to use the word integrate the Commerce Clause line of cases from and I thought to be 2 all the way up to well actually NLRB shimmy NLRB to NFIB
Ok and and in between did you did you do much of that in your book try to integrate lines of cases and in the Commerce Clause line that you spoke about did you did you perhaps give the court too much credit in trying to make sense and square these cases which as
You know cannot really be squared there are if you have a book if you turn to page let’s see 22 which is right there I’ll just give it to Roger so you can see it we tried to illustrate props we tried to illustrate as best as we can
How the justices shifted their approach to implied powers what we articulate is it’s not just the commerce clause it’s the Necessary and Proper Clause the meaning of the word Commerce has not changed much since Gibbons against Ogden in the 1820s it means if the exchange or intercourse of goods and service between
States there’s an exception about health insurance mode we’ll get there another time right but the the meaning of Commerce has been pretty fixed what’s fluctuated is implied powers that is what can Congress do to carry the execution the power of regulating Commerce and in cases like Marbury I’m sorry McCall team Maryland
Chief Justice Marshall sort of expanded it and said if something is perhaps convenient to Congress they can do it and in preview Pennsylvania they upheld the future slave Act they said if it’s within the powers of government and that’s fine the courts will defer so the question of enumerated
Powers is not one of doctrine but one of deference how much deference does the court give to the Congressional branch and if Congress defers to what the executive wants to do with it Congress wants to do then it’s basically open season for federal power and when we
Describe it it’s what’s the role the courts to say that there are some limits or Milly’s defer and that I think helps explain this or fluctuation of how much deference or lack of deference will be forwarded to the I’m glad you raised the Necessary and Proper Clause that’s a
Point that Randy in his writings has brought out you cannot understand the Commerce Clause unless you integrate it with the Necessary and Proper Clause because that’s where so much is done and getting back to the earlier exchange I had with David it is the interpretation of the Necessary and Proper Clause that
Has fluctuated and which law professors have overlooked in saying oh this is Commerce Clause this is Commerce Clause this is Commerce Clause when it isn’t actually it never was it was necessary and proper clause and then how do you read that and and and once you plug that
Back in and a lot of this stuff starts to make more sense and you can predict more or less what Justice Scalia was going to do in NFIB based on what he had done in Printz on Necessary and Proper and what he had done in Raich on Necessary and Proper and though people
Said there’s no way that he could ever vote for us and be consistent with those two previous cases especially his rage decision I knew that that was just not true I knew that what we were asking him to do was completely consistent with what he had done in Raich so Josh to the
Question did you perhaps give the court too much credit in trying to integrate this and make sense of what is nonsense maybe you know I think when you make a map when you draw a map they’re distortions right Greenland is not really that big we could actually take
It pretty easily I think there but whenever you try to represent the law took a while whenever you try to represent a lot of information concise form you have to distort a little bit and to paint the history of implied powers in this sort of granular
Fashion we have to make a lot of assumptions in fact Randy and I agreed this nothing says agree I think that McCulloch was pretty broad I think McCulloch was broader than writ this little graph over there how high McCulloch is we fought over that one for
A while I think I openly defer it to Randy but I think McCulloch was a lot closer to prig I think that McCulloch and prig were along the same lines but we compromised so we size it in the appropriate fashion good question Roger thank you all right
I think we have time for one more question right here David Sobel’s in Washington DC what just made the cut and what will you leave out in your second edition when there are more important cases that have come down the pike I don’t know the answer well we’ve considered for the next
Edition do we make it a hundred five cases do we cut things out we haven’t quite decided that yet I’ve got a suggestion please you’ve got to Fisher cases on affirmative action I would eliminate the first because the second one actually decided the issue that’s true counting to 100 wasn’t easy I mean
There’s one case that as Josh already told you we didn’t count to a hundred we found that we had a hundred and three and so we could make the title of the book the hundred cases because that’s what we had so when you be tempted to do another book that it deals with
Constitutional cases that are put into the other buckets that you mentioned like constitutional Criminal Procedure I probably structural Constitution you know you could divide it into three or four other buckets and put some very important case in there this is not fun but I also teach property law and I
Might do 100 property cases everyone needs to know well your simple case is beyond your seco could be 100 more Supreme Court cause let me point out one other thing the budget or the expenditure for this project the video project was approximately a hundred thousand dollars and so what you
Need is you need to have but you need a publisher who is prepared to front you the money to go into a studio and make all this stuff happen and that is not an easy thing to do and it’s only likely to happen if you have a market a pretty big
Market for a book so if it’s a niche book and you’re not going to be able and the publisher is not going to be able to make back their hundred thousand dollars and this publisher is skeptical about whether it’s going to make back it’s under $1,000 it’s wrong it’s gonna it’s
Gonna make it back but that’s that’s a constraint we have government employees with life tenure don’t concern themselves petty matters but the hundred thousand dollars should tell everybody in the audience including those viewing at home that there’s very high production values of these videos because it was done by a professional
Video company try vision who are excellent to work with and so you’re getting a very high quality you’re not getting a production that was done on the cheap it which is one reason why you’re gonna have to pay for it if you want to see it it’s not going to be on
YouTube it’s going to be something you’re gonna have to pay for to see it and I should probably mention you can buy that you can access the videos in three different ways one is you buy the paperback and you will get a access code inside the cover the paperback that will
Give you the access to the videos secondly you can go and buy a Kindle edition or you can go to the publisher and buy there ebook for this is this the retail price of this is twenty nine ninety five the e-book is twenty four ninety five that will also give you
Access to the videos or you can just access the videos only for nineteen ninety five so there’s three tiers of which that you can take advantage of and you can get all these details on Kahn law to us which is the website for the book con law dot us right now I should
Say for those of you in the room Amazon is sold out of this book the demand way exceeded what they expected to have they’re sold out for we don’t know when they’re gonna get back in stock so if you want a copy of the book now you
Can’t just go home and order from Amazon the way you always do when you come to Kato forum you really got to go out and snag one of the copies of the books they have here well you’re not going to see one for a while
And if you go to our website we have the trailers for any video so you can just pull up and watch a trailer for whatever video you want we have trailers for all the cases free I need to alright with that we’re gonna conclude I’ll just note
That lunch is going to be upstairs on the second level in the gorge a maker conference center up the spiral staircase there are restrooms on this floor by the elevators and on the way to the lunch on the wall with that work included thank you so much
