      |
|
|
 |
|
« Back to The Future of the Constitution, Part Two main page    Transcript for: The Future of the Constitution, Part TwoOpening Billboard: Funding for this program is provided by the Bernard and Irene Schwartz Foundation, the Smith Richardson Foundation, and the Lynde and Harry Bradley Foundation.WATTENBERG: Hello I’m Ben Wattenberg. The Constitution is America’s framework for government. It has survived over two centuries with only a few amendments. But despite its apparent simplicity, interpreting the Constitution is difficult. Although Americans have a strong libertarian identity, they also support big government programs that the Founders never dreamed of. Should the original intent of the Founders be what matters most when interpreting the Constitution? Or can it be a living document interpreted in new ways as America changes? To find out, Think Tank is joined this week by Richard A. Epstein. He is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago. His new book is 'How Progressives Rewrote the Constitution,' published by the Cato Institute. The Topic Before the House: The Future of the Constitution, Part Two. This Week on Think Tank. WATTENBERG: Richard Epstein, welcome back to the second part of our discussion about the American Constitution. EPSTEIN: Delighted to be here. WATTENBERG: Delighted to have you. There has been so much talk in recent years about the presidency of Bush 43, -- President George W. Bush, and it is said that he has overstepped his bounds, uh, tell us first in brief, what the Constitution says about the power of the presidency and then let’s talk about whether President Bush 43 has gone over… EPSTEIN: Overstepped, yes. Well, actually there’s two parts to this. There are the explicit Executive Powers, which are listed in Article II of the Constitution, but there are also a whole [raft?] of Congressional powers that are stated in Article I of the constitution. You can’t understand one without the other. They have to be read as a whole. On the Executive Powers side, it says that the Executive Powers shall be vested in a President of the United States and that means that you get a single unitary executive. A relatively benign statement by that point. WATTENBERG: Okay, executive in theory means you execute laws that have been passed by somebody else? EPSTEIN: That is the definition of what he does. Executive according to every classical text on this subject and by the way all the liberals like the classical stuff now, they don’t want to see any of it change and they’re right. It means to carry into place; it doesn’t mean to break -- to make policy. There’s always [INAUDIBLE] policy making, but you can’t make it up. WATTENBERG: Okay, but it also says he shall be -- I don’t know the exact phrase, the Commander In Chief. EPSTEIN: He shall be Commander In Chief of the Army and Air Forces and the Navy, and the militia when called into the active service of the United States. WATTENBERG: Okay, now, that is policy as well as execution. EPSTEIN: Um, not when you go and read it against Article I which says in effect that Congress shall have the power to make rules for the governance in regulation of the armed force services. WATTENBERG: Yeah, but -- but according to the Javitz Act and a lot of other things, if the President wants to send troops into Iraq he can do that and the positive -- the congress has to take, as I understand it, affirmative action. Basically their ultimate weapon is to cut off appropriations of our boys in service, which no one is going to do. EPSTEIN: Look, there’s -- look there’s -- but you’ve already given away half the game. The battle over the executive power is not when Congress gives the President some power, how it’s going to take it back, the battle over the security issues, for example, with the FISA, the Foreign Intelligence Surveillance Act, is all over the question of what put the inherent powers of the President are to act on his own either independent of Congressional authorization or in the extreme case, of defiance of it, so the stuff that you’re talking about is a political tussle which is perfectly consistent with the basic constitutional frame… EPSTEIN: … but the unilateral find gets you into real trouble… WATTENBERG: So -- so you’re saying that the Constitution, the living Constitution works? EPSTEIN: Well I’m saying, no, in fact the living constitution is the one that’s causing us the problem. It’s the traditional one… WATTENBERG: But you -- but you just said that this all works its way out in the Constitutional process. EPSTEIN: Oh no, no, no, no, no. I’m saying it’s the original design which says that the congress makes the policy and the President executes it works, the part that’s causing the great trauma now is where the President says I’m Commander In Chief, I have control over intelligence, I can make policy on those issues… EPSTEIN: … and he’s just dead wrong. Not even close, as a technical matter. WATTENBERG: Well -- well, you say. EPSTEIN: Yeah, I do. WATTENBERG: Okay, okay, now he’s gotten into Dutch on a lot of problems this, uh… EPSTEIN: Uh-huh. WATTENBERG: … National Security Agency tapping phones… EPSTEIN: Yep. WATTENBERG: …putting people in Guantanamo, Abu Gharib, all this kind of stuff. Do you -- now remember, four 747s knocked down and killed Americans. EPSTEIN: Absolutely. WATTENBERG: Do you favor the President doing that? EPSTEIN: Some of the things, yes; most of the things, no. First of all, there’s nobody on any side of the political debate that doubts that any military officer when faced with imminent attack can take defensive measures without authorization from a superior officer. The President’s no different from anybody else, but a Sergeant can do that and should in many cases. But, the distinctive powers of a President are in response not only to dangerous circumstances, which we always have, but to imminent emergencies where there is no authorization. FISA is a very complicated Act that may not be ideal in some ways. WATTENBERG: Which one, the Homeland Security Act? EPSTEIN: No, FISA is the Foreign Intelligence Surveillance Act. WATTENBERG: Oh, right. Right. EPSTEIN: And it sort of tries to figure out what is going to happen in the event of a war, in the event of an emergency, when you go to judges and when you don’t and it’s clear that at least for some of the wiretaps the President is in violation of that statue and his argument is that it’s unconstitutional. And I do not understand how it can be unconstitutional when Congress has the power to make the rules to regulate war, when commerce has the undisputed power, even under my view of the commerce clause… WATTENBERG: And they were consulted, at least the leadership was? EPSTEIN: Well, yeah, but of course, that’s the genius of Separation of Powers, which has been violated. EPSTEIN: We don’t allow people to have Ad Hoc accommodations between the Executive Branch and the political bodies… WATTENBERG: But we do, I mean, you say we don’t, but we do. We do it all the time. EPSTEIN: No, no. I mean whether it’s constitutional or not. It doesn’t defend the president against the charge of unconstitutionality, that he briefed a bunch of key people in secret. There are ways to pass statutes; there are ways to veto statutes; there are ways to override statutes; there are ways to have committee things and the last thing you want people to do is to be able to romance separation of powers notions to do whatever they want by getting a few of their friends to go along. And so I’m very critical of the idea that you sort of break these things down and you see even the most recent headline revelations, a sort of wholesale spying kinds of activities. WATTENBERG: They’re not wholesale spying; they -- they are anonymous; they are keyed to the -- to the names and phone numbers of the potential suspects; they are fairly well constrained and the telephone companies claim they’re not really doing it, I mean… EPSTEIN: Well, there are two different things… WATTENBERG: It’s not what you’re saying. EPSTEIN: No, no; I think there are two different issues and let’s get them cleared. EPSTEIN: I’m sympathetic with you one, but not on the other. The issue on which I take strong exception to the president is the thought that he can do all of this on his own hook, and get the sort of Ad Hoc approvals. The other issue is the privacy 1st amend -- 4th amendment issue on whether or not these are unreasonable searches and seizures and that’s a tougher issue in some sense because even if Congress authorized everything that the president did, you’ll still have the privacy. And on that there is no question that the old case is [INAUDIBLE]. WATTENBERG: Let me, let me… EPSTEIN: Okay, I won’t interrupt. WATTENBERG: Let me say this. There is a legitimate civil libertarian issue on all of these things. EPSTEIN: Absolutely. WATTENBERG: But suppose I said to you, Richard, if the President doesn’t do that, you, your wife and your children are going to be targets of Jihadists terrorists. Does that change your view of these things? EPSTEIN: It does if I thought that you would be incapable of protecting us. And let me put it to you in the following way. That gets me much more frightened with people that way that the Fourth Amendment is such a barrier that you can’t do surveillance of phone calls in this sort of anti-terrorist mode. The Fourth Amendment is a very tricky thing. It’s much better for criminal investigations of committed crimes than it is in trying to protect people from basically terrorist attacks. We’ve got to have a very broad net in order to bring people home, and some of the things that the President clearly does are within Fourth Amendment bounds if you are simply tracking phone calls without listening to what they say. That’s not wiretapping, and it’s held not to be a search a long time ago. EPSTEIN: But on the other hand, one of the things that makes us so uneasy is the cloak of secrecy and the sort of indifferent reporting and the unwillingness to follow the FISA procedures leave me to the following advice. You get a little bit sloppy on procedures in the end; you get a little bit sloppy on rights… WATTENBERG: Right. EPSTEIN: … and so I like to keep the procedures solid and then I’ll have more confidence that… WATTENBERG: Alright. EPSTEIN: … we’re not going to have real terrors on the civil liberties side. WATTENBERG: Let’s go rat-tat-tat on some specific issues so our viewers and I can get a sense of where a classical liberal libertarian comes down… EPSTEIN: Okay. WATTENBERG: … ending a sentence with a preposition. EPSTEIN: That’s alright. WATTENBERG: Gay marriage? EPSTEIN: Oh, me? I’m very strongly in favor of allowing it; in fact, I’ve argued that it’s constitutionally protected on a freedom of association grounds. WATTENBERG: Okay. I... EPSTEIN: And I mean, I can’t understand why people can’t take the correct solution, which is if you don’t like the marriage don’t attend the ceremonies. But I do take strong exception to the civil rights movements in its efforts to force people to associate with gays if they don’t want to or with anybody that they don’t want to. WATTENBERG: Right. EPSTEIN: I tend to be reasonably opposed to forced interaction by the … WATTENBERG: Okay, I accept that. The problem is in what is called the coarsening of the culture where the gay lifestyle is not only accepted, but promoted and glorified, and that there’s a real argument against it in my judgment. EPSTEIN: Well, you know, my view is that’s an argument that you have, but it’s a social argument; it’s not a legal argument. It’s the single most illiberal action that’s being [INAUDIBLE] forward today is this effort to create a Constitutional amendment to prohibit gay marriage. The thought that you would go that way is a spectacle. You know, in 1910 some of our enlightened progressives were in favor of having a amendment which prohibited, you know, prohibited interracial marriages… EPSTEIN: It didn’t get anywhere, and this one shouldn’t get anywhere either. WATTENBERG: Let me describe something that in theory you should be in favor of-- a market transaction where an employer has a job he wants to get filled and a potential employee is available to fill it and that person happens to be categorized as an illegal immigrant. EPSTEIN: Oh, boy. WATTENBERG: Now, are you in favor of that or opposed to that? EPSTEIN: My first preference is to broaden the class of legal immigrants. I am a grandchild of immigrants. I think that the kind of [INAUDIBLE] that we have is part of an unfortunate protectionism. Most of these immigrants are hard working; they contribute more to our society then they take from it. I don’t like any legal system that makes people do things that are illegal and to the extent that the President on this issue is trying to get rid of some of that taint and stain, I’m relatively sympathetic. WATTENBERG: Okay. EPSTEIN: Now, open the borders? That’s a tough question. WATTENBERG: Okay. EPSTEIN: But certainly for lots of people, particularly the upper technical levels, you want to open them more. WATTENBERG: Ok, Now, what do libertarians think about child labor? EPSTEIN: Oh, you know, I talk about that in my little book. Essentially there’s the following card question, and I’ll give you the question and then I’ll give you what I think is the likely answer. If you really think parents are about to exploit their children for their own benefit, you want to have various strict restrictions against child labor laws. If you think their parents are faithful guardians of their kids, then if you have the child labor laws, you force them into the underground economy in which they’re going to be far worse off then before. My own empirical judgment, having looked at this period, is most of these parents are pretty conscientious. Now, a lot of the impulse for child labor laws came from schools that could not compete with factories. Schools, for example, and so that you had a lot of anti-competitive stuff, and as the situation got better and the progressive era, there was a huge row about stopping progress -- I mean, child labor, but if you actually look at the numbers, sharply declined in the period from 1900 to 1930. Why? Because as technology improved, as wages increased, there was less attractive to put your kids to work and so the situation sorted itself out. WATTENBERG: But -- just… EPSTEIN: So in general, I think the laws were misguided. WATTENBERG: … just as a symbolic act… EPSTEIN: I’m afraid -- I don’t like symbols; they’re expensive. WATTENBERG: Well, I know you don’t like symbols, but the people who the Constitution enshrines as the bosses, we the people, often live by symbols. EPSTEIN: Um… WATTENBERG: The American flag is a symbol; child labor laws are symbols. What is wrong with saying “here are some of the symbols that we stand for”? EPSTEIN: Well look; a symbol like a flag is something that sticks out there and it doesn’t in any direct way limit your opportunities to earn a living or to raise your own children. These are symbols which are not symbols of the sort that say we’re going to have National Child Day; these are symbols which in effect make certain conduct illegal which would otherwise be legal and in fact, impair the welfare of the families who they rule. WATTENBERG: So… EPSTEIN: So I don’t like those kinds of symbols… WATTENBERG: I understand. EPSTEIN: Because the other effects are much more important. WATTENBERG: But, but, -- I want to talk about 10 people or 100 people who in an unregulated society because… EPSTEIN: Uh-huh. WATTENBERG: … they believe, and maybe they do in fact, need the money, would be prepared to send their small children into coal mines to get into the smallest crevices where adults can’t get. EPSTEIN: I mean. WATTENBERG: Would you be in favor of that? EPSTEIN: It depends. I mean, obviously you could push me to a point in where they have a 40% chance of dying, no, but that goes to what I said at the beginning. WATTENBERG: Suppose they have a 30% chance of dying? EPSTEIN: If you really think the parents are doing it to exploit the children for the parental benefits, my answer is I would ban it. That’s what I said. If I think they are trying to do it for the benefit of the family unit, including the child, I would not, and as you make the hypothetical more and more doomsday like, I start to see higher and higher signs of abuse. WATTENBERG: Well… EPSTEIN: And sooner or later you take a hard-nose like me and get them to say no, but the pattern on child labor was not that. WATTENBERG: Yeah, but look… EPSTEIN: It was [INAUDIBLE] through progress with a whole period. WATTENBERG: Richard, I didn’t make that up about coal mines; that was a well known practice. EPSTEIN: Ask yourself the question, if in fact you didn’t do that and you didn’t have enough food to feed your children, the question is whether you take the risk of death through injury or whether they take the risk of death through starvation. WATTENBERG: You and the classical libertarians and the textualists and the originalists are ignoring frequently the power of symbols, when people say they want to live in a society where little children cannot be sent into coal mines, that’s good for this country; not bad for this country. EPSTEIN: Okay, but let me tell you why I take this -- there’s some of these symbols I agree with, but, you know, remember, symbols are not monopolists -- in the monopoly power people like you and me, somebody says I do not live in a company [sic] where whites are allowed to marry blacks. I do not want to live in a country where there can be a black judge sitting on the bench. I do not want to live in a country where women are allowed to vote. There are a lot of symbols out there which are pretty ugly. And, so what you really have to do is to ask yourself, not whether you have symbols, but whether you have symbols that have coercive power behind it. EPSTEIN: And I think you’ve just got to be very careful about that because what happens is the wrong guys get control and their symbols turn out to be your damnation. WATTENBERG: Alright. Let me go from the specific… EPSTEIN: Okay. WATTENBERG: … to the general. you’ve had a system with a lot or torn fur and the middle people arguing and yelling… WATTENBERG: And bi-partisan and not partisan, whatever, but where both sides won. The liberals, they got the civil rights, they got feminism, sometimes super feminism. EPSTEIN: Well, uh… WATTENBERG: Excuse me, you know, it was until the 1920’s women were not even allowed to vote, we see what happens to females in the Arab world, it’s a big human advance. We’ve got some new emphasis on environmental protections, which again, while overdone in some cases, has been to our benefit. On the other hand, from the conservative point of view, the same system has sort of enshrined out of a [Smith and David Ricardo?] and out of the idea markets and free trade and promulgated what I think is our central creedal doctrine going back to John Winthrop, is to attempt and purvey democratic values and views around the world. Now, under this Constitution, this flawed Constitution… WATTENBERG: … and a lot of other things, that has flourished. EPSTEIN: Yes, and no. Let me give you… WATTENBERG: What hasn’t -- what unbalanced hasn’t flourished. EPSTEIN: Well, let’s give you the irony. You mentioned about the advancement of women and how we relate it to the constitution and more importantly to a libertarian theory. The idea under either libertarian or classical liberal theory is that you deprive half the people of this country of the vote or the capacity to contract is crazy and so they would always be strongly in favor of those. Now, what would they be opposed to? WATTENBERG: That.... EPSTEIN: That they would be in favor of the vote; they’d be in favor of free capacity to contract. The great progressive legislation of Louie Brandise wanted minimum wage loss for women only, and these things were sustained. Today they are routinely declared unconstitutional on the grounds that they’re protectionists. The progressives have got it absolutely backwards. It’s the Libertarians who got it right, and on that issue, there’s a classic case of which -- what was once enlightened and it turns out now to be seem to be quite stupid. WATTENBERG: But what you are saying, scrub it all away… WATTENBERG: … is the Constitution is a living document that as they say, the court follows the election returns. EPSTEIN: No, I’m not saying that. WATTENBERG: Well -- but that’s the effect of what you’re saying. EPSTEIN: No, I’m not saying that; I’m saying exactly the opposite. You started out with a -- a praise of democratic politics. Democratic politics won on the ability to subject women to minimum wage laws to allow -- to prohibit women from practicing law through about 1950. The modern development in these areas, in favor of women’s rights, have all been libertarian. They strike down barriers to entry and labor markets. WATTENBERG: But they have -- excuse me, I mean… EPSTEIN: Those… [INAUDIBLE] WATTENBERG: … the, the, the laws enshrining that a certain proportion of given jobs in a given industry have to go to women… EPSTEIN: No, those -- those are horrible laws. WATTENBERG: … or have to go to blacks or have to go to Latinos, you -- but that’s… EPSTEIN: No, that’s not, as a matter of fact… WATTENBERG: Well it’s in our laws, its de fecto (ph.) and de jour (ph.). EPSTEIN: It’s, it’s more complicated than that. WATTENBERG: Well. EPSTEIN: And let me again say one of the things about it, as sort of a -- in these issues, on labor issues I tend to be relatively strongly libertarian. I think any firm in the private market that wants to practice affirmative action, be my guest. I don’t think that the state has any interest… WATTENBERG: Affirmative action with goals but not affirmative action with goals and timetables… EPSTEIN: I did -- I did… WATTENBERG: … not quotas. EPSTEIN: No, anything they want to do. I’m in favor of quotas. WATTENBERG: Well, now -- now quotas can keep your kids out of jobs. EPSTEIN: I understand that, but I don’t think so; I think if it’s a private firm that’s doing it. They understand the tradeoffs and they will maximize something. WATTENBERG: But -- if it’s a private firm in interstate commerce… EPSTEIN: I understand… WATTENBERG: And subject -- and subject to constitutional strictures, what about that? EPSTEIN: Well there is no constitutional strictures that in my mind bans firms in interstate commerce from figuring out how to deploy their own labor. WATTENBERG: Okay, suppose… EPSTEIN: And in fact, you’ll get… WATTENBERG: …suppose it’s a federal government agency that has enshrined what they called “race norming”. EPSTEIN: I don’t like that at all. Government officials as opposed to private parties, more complicated. This is the Epstein… WATTENBERG: No -- no more -- more complicated is a fudge -- is a fudge answer. EPSTEIN: No, no. WATTENBERG: Are you in favor of it or against it? EPSTEIN: I’m basically for the most part against it, but this is the distinction. WATTENBERG: Basically for the most part… EPSTEIN: Again, because they complicate… WATTENBERG: … against race norming. EPSTEIN: Let me explain why. EPSTEIN: Rather than sort of arguing. Private parties are not subject to constitutional norms. Constitutions regulate what states do. WATTENBERG: Okay. EPSTEIN: We have -- whenever you have a state and it’s going to engage in conscious race behavior, it’s going to give rise to suspicion that will not otherwise take place. Equal protection of the laws or whatever. But what happens is in certain cases these things are completely unjustified, but let me give you the instance. The University of Michigan practices some form of whatever it is, race norming preferences to let in black students, just the way every other private university like Harvard or Columbia does. They are in competition with each other, to me it’s a very good test that when institutions are running businesses… WATTENBERG: But -- but Harvard and Yale and Princeton are private and the University of Michigan is public. EPSTEIN: And -- and that’s the point, but I can’t conceive of how you run a public institution except in competition with a private institution. So the right constitutional test is when governments are running businesses they have more discretion on all these questions having to do with race then they do when they’re regulating. And essentially if they do imitate the patterns of private firms it’s okay if they go against them, for example, if they had explicit prohibitions against hiring blacks or admitting blacks, that’s bad, but I think at this point the gold standard is what private institutions do, is a pretty good indication of what’s sensible social policy. WATTENBERG: So -- so you are -- let me put it in it’s most raw form. You live in Chicago… EPSTEIN: Absolutely. WATTENBERG: … and not very far away is Ann Arbor, the University of Michigan… EPSTEIN: Yep. WATTENBERG: … one of the great schools of the world. EPSTEIN: Uh-huh. WATTENBERG: I don’t know how old your children are; sooner or later they’re going to… EPSTEIN: They’re all -- my youngest is graduating from college. WATTENBERG: Okay, we’ll let’s go back ten years. They’re applying for college. EPSTEIN: Yeah. WATTENBERG: They apply to the University of Michigan and it turns out as happened in the case of Bacci, I guess, that they’re turned down for admission because they have race norming and quotas. EPSTEIN: Yeah. WATTENBERG: And you are prepared to say, “well that’s a judgment call”. EPSTEIN: Yes. WATTENBERG: Even though the Declaration of Independence says all men are created equal and… EPSTEIN: Created equal. That means that each of them have the right to choose whom they associate with and why. The equality norm doesn’t tell you whether everyone gets in under non discrimination principal or whether you have free association. I’m in favor of freedom, and I, you know, I don’t like public institutions that… WATTENBERG: But how can you be… EPSTEIN: … in higher education. I’d rather have more private. WATTENBERG: How can you be in favor of freedom and allow public institutions to publicly discriminate against your children. EPSTEIN: Because what happens is I’m letting them do exactly what the private competitors can do more or less. If Harvard, Columbia, Chicago, every private institution thinks that they’re running a better place by having some kind of a racial mix, I think that the University of Michigan can do the same thing. WATTENBERG: So -- so again, to be raw, you -- you have no principals. EPSTEIN: No, I do. I have a lot of principals. WATTENBERG: You have a lot of principals but they don’t apply… EPSTEIN: I don’t have your principals. WATTENBERG: Oh, you don’t have my -- alright. EPSTEIN: I just think you’re wrong. WATTENBERG: Let me, let me ask another question. WATTENBERG: Okay. Let’s terminate this discussion… EPSTEIN: Okay. WATTENBERG: …with this question. What is your general outlook? Is the Constitution as amended and interpreted and as an evolutionary document, does it continue to be the world’s great document which has been benevolent to Americans? EPSTEIN: On balance it’s a great achievement, but that doesn’t mean you can’t improve it at the edges. And it’s interesting; in some cases you want to improve it by giving political bodies greater power, other cases you want to improve it by giving them less. The recent Kilo case was one where people were just appalled at the fact that a city could knock down the ordinary homes of ordinary people, the attack on the court was they allowed… WATTENBERG: That’s an imminent domain case? EPSTEIN: Yeah, they allowed too much power to the -- to the political branches. They were anti-democratic and they were right about that case, but in other circumstances, for example, on the question of medical marijuana, my view is let the states experiment. I want to be more democratic. WATTENBERG: Alright, so we have to end… EPSTEIN: Yes. WATTENBERG: You are in favor of principals, but prepared to amend them. EPSTEIN: I’m in favor of principals and prepared to see how they have to be adapted to new circumstances without abandoning their central mission. WATTENBERG: Okay. EPSTEIN: Slightly different. WATTENBERG: Thank you very much for joining us on Think Tank Richard Epstein, and thank you. Please, remember to send us your comments via email, we think it makes our program better. For Think Tank, I’m Ben Wattenberg. Announcer: We at Think Tank depend on your views to make our show better. Please send your questions and comments to New River Media, 4455 Connecticut Ave NW, Suite C-100, Washington, DC 20008 or email us at thinktank@pbs.org. To learn more about Think Tank, visit PBS online at pbs.org and please let us know where you watch Think Tank. Funding for Think Tank is provided by the Bernard and Irene Schwartz Foundation, the Smith Richardson Foundation, and the Lynde and Harry Bradley Foundation. Back to top  Think Tank is made possible by generous support from the Smith Richardson Foundation, the Bernard and Irene Schwartz Foundation, the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Donner Canadian Foundation, the Dodge Jones Foundation, and Pfizer, Inc. ©Copyright Think Tank. All rights reserved. 
  Web development by Bean Creative. |